



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. J.T., 2021 ONCA 922

DATE: 20211222

DOCKET: C67335

Strathy C.J.O., Hourigan and
    Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.T.

Appellant

Chris Sewrattan, for the appellant

Molly Flanagan, for the respondent

Heard: November 24, 2021

On appeal from the conviction entered on
    June 10, 2019 by Justice Susan Chapman of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

After receiving an alert that on May 28, 2017
    child pornography had been transmitted from an identified Internet Protocol
    address (IP address) using a Skype file sharing program, Toronto Police
    obtained a search warrant for the residential address associated with that IP
    address. The residence was owned by JTs parents. When the search warrant was
    executed on November 16, 2017, JT was discovered holding a computer tablet that
    belonged to him. A commercial movie was playing in full screen. A separate
    application containing child pornography was also opened on the computer
    tablet. Although the child pornography was not immediately visible on the
    screen, it could readily and easily be accessed because it was already opened.

[2]

Det. Cst. Kidd of the Sex Crimes Unit, who was
    present at the time of the search, determined that the IP address at the
    residence had changed since the May 28, 2017 transmission.

[3]

In the days that followed, a forensic
    examination of the computer tablet was conducted with the aid of forensic
    software that categorizes and analyzes images and videos. The images of child
    pornography that had been transmitted on May 28, 2017 were found on
    the device. Additional images of child pornography were located in the
    downloaded document files. The downloaded document files also contained
    documents that could be linked circumstantially to JT, and his user account and
    his email address were linked to the computer.

[4]

JT was charged with several child pornography
    offences on a four count information. He was tried and convicted of possessing
    child pornography and making child pornography available. He appeals those
    convictions on two grounds, arguing: (1) that the trial judge erred by
    admitting expert evidence from Det. Cst. Kidd relating to the downloading of
    files without qualifying Det. Cst. Kidd as an expert (the qualification
    error); and (2) that the trial judge committed a
Sekhon
error,
    contrary to
R. v. Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272, by
    admitting and relying on anecdotal evidence from Det. Cst. Kidd (the 
Sekhon
error).

[5]

At the end of the oral hearing, we dismissed
    JTs appeal for reasons to follow. These are our reasons.

[6]

The alleged qualification error relates to the
    admission of testimony by Det. Cst. Kidd, who was not qualified as an
    expert witness, that an IP address will change if the computer is disconnected
    from and then reconnected to the computer network. We are not persuaded that
    this testimony required expertise. This was mundane factual evidence about the
    operation of internet services that did not require specialized knowledge to
    observe or understand. Moreover, the parties agreed that no issue was taken
    with Det. Cst. Kidds ability to speak to the contents of the computer and the
    forensic analysis of the computer, as it pertains to the activities on their
    computer  as it relates to the child pornography, and no objection was taken
    to the evidence. We therefore dismiss this ground of appeal.

[7]

The alleged
Sekhon
error relates to the
    admission and use by the trial judge of testimony from Det. Cst. Kidd that in
    his experience he had never seen child pornography end up on a computer in an
    automatic fashion, without having been placed there by user action. The trial
    judge relied on this evidence in rejecting JTs suggestion that some of the
    documents could have been placed automatically into the downloads folder on the
    tablet.

[8]

We are not persuaded that a
Sekhon
error
    occurred. Det. Cst. Kidd was not offering unnecessary and irrelevant anecdotal
    testimony about the guilt of other similarly situated offenders to support a
    finding that JT was also guilty of possessing or making available child
    pornography. When his impugned testimony is read in context, it is clear that
    Det. Cst. Kidd was simply relying on his experience to explain the technical
    operation of computers, specifically, that documents are not automatically
    downloaded by computers, but by human action.

[9]

Nor did this evidence reverse the burden of
    proof by requiring JT to show that his state of mind or conduct was different
    than the state of mind or conduct of other alleged offenders. As indicated,
    Det. Cst. Kidds evidence related to the technical operation of computers and
    did not purport to speak directly to the elements of the offence, as was the
    case in
Sekhon
.

[10]

Nor do we agree with the submission made on JTs
    behalf that there would be no realistic way to counter this evidence other than
    by searching for and calling competing anecdotal evidence from an investigator
    who had experienced the automatic downloading of documents onto a computer. If
    it is true that Det. Cst. Kidd was incorrect and there are indeed ways that
    documents can automatically be downloaded onto a computer, any admissible
    technical evidence relating to the operation of computers could have been called
    to challenge his testimony.

[11]

The appeal is therefore dismissed.

G.R. Strathy C.J.O.

C.W. Hourigan J.A.

David M. Paciocco J.A.


