



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. Leblanc, 2019 ONCA 928

DATE: 20191125

DOCKET: C64326

Simmons, Huscroft and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mathieu Leblanc

Appellant

Ronald Guertin, for the appellant

Jeremy Tatum, for the respondent

Heard and released orally: November 22, 2019

On appeal from the conviction entered on January 31, 2017
    by Justice Kevin B. Phillips of the Superior Court of Justice.

REASONS FOR DECISION

[1]

Mr. Leblanc appeals from his conviction for possession of child
    pornography. The appellant was an employee of a department of the Federal
    government. He was accused of acting inappropriately by a co-worker which led
    to an internal investigation. As part of that investigation, the appellants
    work computer was seized.

[2]

An initial review of the appellants computer found an image that an internal
    investigator believed might be child pornography. The investigator alerted the
    police. The police attended and took possession of the appellants computer.

[3]

Unbeknownst to the police, as part of the internal investigation, a
    mirror copy of the hard drive of the appellants computer had been made and
    kept by the internal investigators. A further review of that mirror copy by the
    internal investigators revealed a large quantity of child pornography. The
    police were alerted again.

[4]

The police attended at the work site and looked at the mirror copy. The
    police, by this point, did not have a search warrant. A search warrant was
    subsequently obtained and charges were laid against the appellant.

[5]

On this appeal, two issues are raised. One is a challenge to the trial
    judges rejection of the appellants application to have the child pornography
    evidence excluded because the police review of the mirror copy of the hard
    drive without a warrant constituted a breach of the appellants s. 8
Charter
rights against unreasonable search and seizure. The other is a challenge to the
    trial judges conclusion that the Crown had proved, beyond a reasonable doubt,
    that the appellant had possession of the child pornography.

[6]

On the issue of the search warrant, the trial judge gave careful and
    detailed reasons in which, while he found a s. 8 breach, he declined to exclude
    the evidence under s. 24(2). We cannot find any error in his conclusion. We
    note that, as a general proposition, a trial judges s. 24(2) analysis is
    entitled to significant deference:
R. v. Mian
, 2014 SCC 54, [2014] 2 S.C.R.
    689, at para. 77. We also note that the appellant did not directly challenge
    the subsequently obtained search warrant that the trial judge found was
    properly issued even with the impugned officers evidence excised.

[7]

On the issue of possession, the trial judge gave thorough reasons for
    his conclusion that the only reasonable inference to be drawn from the facts as
    a whole is that the appellant had possession of the child pornography. The
    trial judge noted the salient facts that (i) the child pornography was found on
    the appellants workplace computer; (ii) the appellant had exclusive control
    over the computer through his unique user name and password; (iii) the child
    pornography had been transferred to the computer from an external device; (iv) expert
    evidence established that the folder in which the child pornography had been
    located had been created by the appellant; (v) certain subfolders within the
    folder clearly indicated the nature of the contents of the folders, that is,
    child pornography; and (vi) the appellant had attempted to delete the folder
    after learning he was the subject of a complaint and before his computer was
    seized. On this last point, we reject the appellants submission that the trial
    judge misused the admission made at trial.

[8]

In our view, it was open to the trial judge to draw the reasonable
    inference, from these facts, that the appellant was aware of the content of the
    folder on his computer and thus had possession of the child pornography as
    possession is defined in s. 4 of the
Criminal Code
. We cannot find any
    error in his conclusion in this regard.

[9]

The appeal is dismissed.

Janet Simmons J.A.

Grant Huscroft J.A.

I.V.B Nordheimer J.A.


