



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22, 48; 2015, c. 13, s. 18.

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in
    any way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Maillet, 2021 ONCA 73

DATE: 20210201

DOCKET: C67900

Fairburn A.C.J.O., Watt and
    Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roger Joseph Maillet

Appellant

Kenneth W. Golish, for the appellant

Andrew Cappell, for the respondent

Heard: January 28, 2021 by
    video conference

On appeal from the conviction entered on
    June 13, 2019 by Justice Renee M. Pomerance of the Superior Court of Justice,
    sitting with a jury.

REASONS FOR DECISION


[1]

The appellant appeals from his conviction for possession
    of child pornography.

[2]

During the course of executing a search warrant
    at the home of Michael Hardstone, the appellants housemate, the police found a
    laptop computer in the appellants bedroom. The laptop was connected to a
    monitor, and when the Windows Explorer application was opened a folder was
    found containing over 3800 images of child pornography. The appellant admitted
    that the images were child pornography. The only issue at trial was whether the
    appellant knew the images were on the laptop.

[3]

A computer found in Hardstones bedroom also
    contained child pornography. Hardstone pleaded guilty to possession of child
    pornography and testified for the Crown. He said that he purchased the
    appellants computer and gave it to him. He testified that he never used that
    computer and denied downloading child pornography onto it.

[4]

The appellant argues that the jurys verdict was
    unreasonable. He argues, in particular, that expert evidence was required in
    order to establish that the appellant had knowledge of and control over the
    child pornography on the computer found in his bedroom.

[5]

We disagree.

[6]

The case against the appellant was
    circumstantial. The trial judge properly and repeatedly instructed the jury
    that it must be satisfied that the appellants guilt was the only rational
    conclusion that could be drawn from the evidence in order to find the appellant
    guilty.

[7]

The jury was entitled to accept Hardstones
    evidence that he was not responsible for the child pornography found on the
    computer in the appellants bedroom, despite the appellants submissions that
    he lacked credibility. The only other possible explanation  that the images
    were on the computer when Hardstone purchased it from the pawn shop and that
    the appellant never learned of it  was speculative. It was for the jury to
    determine whether there were other rational explanations for why the appellant
    may not have known that there was a huge stash of child pornography on his
    computer. In light of the factual record, including the appellants proven expertise
    in computers, it was open for the jury to conclude that there was no other
    rational conclusion to be drawn, other than that the appellant knew of the
    presence of the child pornography.

[8]

Because it was open to the jury to find that the
    inference that the appellant knew the child pornography was on his laptop was
    the only reasonable inference available, it cannot be said that the jurys
    verdict was unreasonable.

[9]

We note that the appellant raised additional
    arguments that were not set out in his factum, including that the absence of a
    directed verdict application does not inform the issue involving the
    reasonableness of the verdict in this case because bringing such an application
    is up to the accused, not the accuseds lawyer. There is no merit to these
    arguments.

[10]

The appeal is dismissed.

Fairburn A.C.J.O.

David Watt J.A.

Grant Huscroft J.A.


