



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Milliken, 2015 ONCA 897

DATE: 20151216

DOCKET: C59736

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ryan Sean Milliken

Appellant

James Harbic and Robert Harbic for the appellant

Gillian Roberts for the respondent

Heard and released orally: December 9, 2015

On appeal from the conviction entered on March 18, 2014
    by Justice J.M. Johnston of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

On January 24, 2012, two movies containing child pornography were made
    available on a peer-to-peer file sharing network and downloaded by police. The
    movies were made available by the IP address associated with the internet
    account used by the appellant and his parents at their home in Brockville.

[2]

On February 13, 2012, police executed a search warrant and seized the
    appellants laptop from his room. The desktop had 10 icons that linked to child
    pornography movies. A forensic examination of the computer showed that it
    contained 101 still images and 115 movies of child pornography.

[3]

The appellant was convicted of possessing child pornography relating to
    the February 13 incident. He was acquitted of three counts related to
    possession, accessing, and sharing child pornography on January 24, 2012. The
    appellant was sentenced to five months imprisonment. He now appeals his
    conviction.

[4]

On appeal, the appellant submits that the verdict is unreasonable
    because the trial judge failed to consider evidence that could have brought
    about an acquittal and misapprehended the evidence.

[5]

Under s. 686(1)(a)(i) of the
Criminal Code
, R.S.C. 1985, c. C-46, this court may set aside
    a verdict if it is unreasonable or cannot be supported by the evidence. A verdict is unreasonable or cannot be supported by
    the evidence when the verdict is one that a properly instructed jury acting
    judicially could not reasonably have rendered:
R. v. Biniaris
, 2000 SCC 15, [2001] 1 S.C.R. 381, at para. 36. This
    is equally applicable to the judgment of a judge sitting without a jury:
Biniaris
, at para. 37.

[6]

A misapprehension of the evidence will constitute a miscarriage of
    justice if the trial judge was mistaken as to the substance of material parts
    of the evidence, and those errors played an essential part in the reasoning
    process:
R. v. Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p.
    221. The misapprehension must go to the substance rather than to the detail and
    must be material rather than peripheral to the reasoning of the trial judge:
R.
    v. Lohrer
, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. The errors must
    play an essential part in the reasoning process resulting in a conviction.

[7]

The appellants main argument is that the trial judge misapprehended and
    failed to consider relevant evidence with respect to the appellants knowledge
    of the existence of pornographic images on his laptop, particularly the
    evidence about the icons on his computers desktop.

[8]

The trial judge considered the defences arguments, including those
    about how the Windows Live Messenger screen would obscure the desktop and the accessibility
    to the internet using the Start menu/taskbar. A review of the exchange between
    the trial judge and expert witness confirms that he was alive to this evidence
    and what the appellant would have seen when he opened the computer.

[9]

The trial judge considered and rejected the arguments presented by the
    defence. He concluded that the desktop is an essential feature of any computer,
    regardless of whether most programs can be accessed from the Start menu and
    taskbar. There were numerous icons on the desktop with names obviously related
    to child pornography. Many of these included the abbreviation pthc (pre-teen
    hard-core). Ten of these icons linked directly to child pornography videos. Whether
    the icons were opened or not is irrelevant. What is relevant is that the icons
    were in plain sight. The desktop included other icons such as iTunes.  The theory
    that the appellant could have used his laptop without viewing the desktop defies
    common sense.

[10]

The
    trial judges conclusion is supported by the fact that child pornography was
    found elsewhere on the computer. There were child pornography films or images
    in the computers Recycle Bin, the cache folder of the appellants Windows Live
    Messenger account, and the default files associated with peer-to-peer file
    sharing programs. The trial judge, in our view, did not misapprehend the
    evidence.

[11]

The
    appellant also argues that the verdict is unreasonable. As
Biniaris
and other subsequent cases dictate, the scope of
    appellate review for unreasonableness is narrow. In our view, there was ample
    evidence upon which a trier of fact could conclude that the appellant was in
    possession of child pornography. Accordingly, we see no merit to this ground.

[12]

The appeal is dismissed.

Doherty J.A.

S.E. Pepall J.A.

M. Tulloch J.A.


