



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Aalami, 2017 ONCA 624

DATE: 20170726

DOCKET: C60510

Strathy C.J.O., Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Reza Aalami

Appellant

Gregory Lafontaine and R. Golec, for the appellant

Shawn Porter, for the respondent

Heard: June 19, 2017

On appeal from the conviction entered on July 14, 2014
    and from the sentence imposed on May 20, 2015 by Justice Hugh K. Atwood of the
    Ontario Court of Justice.

REASONS FOR DECISION

A.

Introduction

[1]

At the conclusion of oral submissions, we dismissed the appeal with
    reasons to follow. These are those reasons.

[2]

The appellant was convicted of possession of child pornography and
    making child pornography available. He was sentenced to one year imprisonment
    for possession and two years for making available, served concurrently. He
    appeals his convictions on the basis that the trial judge erred: (i) in
    dismissing his application under s. 11(b) of the
Charter
; (ii) in
    dismissing his application under s. 8 of the
Charter;
and

(iii)
    in his credibility assessments of defence witnesses. The appellant also seeks
    leave to appeal his sentence on the basis that the trial judge erred in failing
    to apply the
Kienapple
[1]
principle.

B.

Background

Facts

[3]

The appellants conviction arose from his alleged use of a file-sharing
    network called GigaTribe. The critical evidence against the appellant came from
    Detective Sergeant Parisien. Parisien is an officer with the Saskatoon Police Service
    who has extensive experience investigating child exploitation and the use of GigaTribe.
    GigaTribe is a closed, peer-to-peer network, meaning users must invite and
    connect to others to share files. In Parisiens experience, he had seen little
    or no one using [GigaTribe] for any legitimate purpose.

[4]

On October 14, 2010, Parisien was investigating GigaTribe using a covert
    account. He received three messages from user Peter1111. Parisien saw that
    Peter1111 was sharing three identical folders, which each contained 1,310 files,
    totalling 825 megabytes. They contained child pornography. Parisien subsequently
    obtained Peter1111s Internet Protocol (IP) address, determined the relevant
    Internet Service Provider, and requested and received the subscriber
    information. This information revealed the user of the Peter1111 account was in
    Mississauga, Ontario, so Parisien passed the file over to the Peel Regional
    Police.

[5]

The Peel Regional Police submitted an information to obtain (ITO) in
    November 2011. They executed a warranted search at the appellants residence on
    December 22, 2011 and seized a laptop.

[6]

Police Constable MacDonald  an expert in forensic computer analysis
    with the Peel Regional Police  examined the laptop and testified that
    GigaTribe was installed on the computer with the single user account Peter1111.
    There were 49 images of readily accessible child pornography on the laptop.

[7]

Charges were laid against the appellant on January 6, 2012. He was
    arrested on January 16, 2012.

Section 11(b) application

[8]

On April 2, 2013, the appellant applied for an order staying the charges
    on the basis that his s. 11(b)
Charter
rights had been violated. The
    trial judge dismissed the application with reasons to follow. The reasons were
    never delivered.

Section 8 application

[9]

The appellant changed counsel at the end of April 2013. On October 11,
    2013, the appellants new counsel brought an application to exclude the laptop
    information on the basis that the appellants rights under s. 8 of the
Charter
had been violated. He submitted that Parisien had intercepted and recorded
    the appellants private communications without prior judicial authorization. This
    information formed the basis for the ITO, which then became tainted. He also
    argued the delay involved in the transfer of the file from Saskatoon to the Peel
    Regional Police meant the information relied on in the ITO was stale-dated.

[10]

The
    trial judge dismissed the application.

The trial

[11]

The
    matter proceeded to trial and the appellant testified. He confirmed he had
    downloaded GigaTribe onto the laptop and Peter1111 was his user name. He denied
    using GigaTribe for child pornography purposes. He testified his computer was
    password protected, but everybody knew the password, and he would often leave
    it lying around the house (where his brother also lived).

[12]

The
    appellants brother testified that he used the laptop and he downloaded child
    pornography onto that laptop. He said he would do this while the appellant was
    sleeping or not at home, using GigaTribe, which was already installed on the
    laptop.

[13]

The
    trial judge rejected the evidence of the appellant and his brother. The trial
    judge then reviewed the principles set out in the Supreme Courts decision in
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742. Applying those principles, he concluded
    the Crown had met its burden and convicted the appellant of both possession of
    child pornography and making child pornography available.

[14]

The
    appellant was convicted on July 14, 2014. The appellant changed counsel again
    and was ultimately sentenced on May 20, 2015.

C.

Issues

[15]

The
    appellant raises the following grounds of appeal:

1.

The trial judge erred in not providing reasons for his dismissal of the
    appellants s. 11(b)
Charter
application.

2.

The trial judge erred in not finding a breach of the appellants rights
    under s. 8 of the
Charter
and by not excluding evidence obtained as a
    result of that breach pursuant to s. 24(2).

3.

The trial judge erred in his credibility assessments of defence
    witnesses.

4.

The trial judge erred in not staying the conviction for possession of
    child pornography pursuant to the
Kienapple
principle.

D.

Discussion

(1)

Did the trial judge err in not providing reasons for his dismissal of
    the appellants s. 11(b)
Charter
application?

[16]

As
    the Crown acknowledged, the trial judge erred in principle by failing to
    provide reasons for his decision to dismiss the appellants s. 11(b) application.
R. v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, has been repeatedly
    cited and relied on to underscore a judges obligation to deliver a reasoned
    decision.

[17]

The
    appellant submits the judges failure to provide reasons requires this court to
    order a new trial.

[18]

We
    do not agree. As also stated in
Sheppard
,

there is no need
    for a new trial when the appellate court considers itself able to explain the
    result to the parties. In this situation, the error of law can be cured
    pursuant to the proviso in s. 686(1)(b)(iii) of the
Criminal Code
,
    R.S.C. 1985, c. C-46:
Sheppard
, at para. 55.

[19]

There
    were no credibility issues before the court on the s. 11(b) motion. The parties
    filed factums. This court is able to explain the result to the parties.

[20]

The
    application was argued under the framework in
R. v. Morin
, [1992] 1
    S.C.R. 771. The evidence disclosed that, although the intake period occasioned
    a slight delay, the court was ready to set trial dates in May 2012 for later
    the same year. The appellant, however, declined to set a target trial date
    until he had the final forensic report.

[21]

Once
    a trial date was set, the trial was anticipated to conclude in July 2013. On
    the s. 11(b) application, the court considered this anticipated trial
    completion date to calculate the period of delay. Thus, on April 2, 2013  when
    the application judge heard and decided the s. 11(b) application  the relevant
    period of delay was 17 months, 24 days. This is below the post-
Jordan
18-month
    presumptive ceiling for matters in the Ontario Court of Justice, and there is
    no evidence supporting a stay under these circumstances:
R. v. Jordan
,
    2016 SCC 27, [2016] 1 S.C.R. 631.

[22]

The
    appellant further submits the period of delay for this courts consideration
    should be expanded. Despite the anticipated end date of July 2013, the trial
    was not actually started until October 2013, and it was not completed until May
    2014. Judgment was delivered in July 2014. This resulted in a period of delay
    of over 29 months.

[23]

The
    problem with the appellants submission with respect to the expanded timeframe
    is that this court has not been provided with a record.

[24]

The
    recent decision of this court in
R. v. Gordon
, 2017 ONCA 436, sets out
    the steps to follow where a matter that was started under the pre-
Jordan
system is determined post-
Jordan
.

[25]

First,
    any time attributable to defence delay must be subtracted from the total delay
    to determine the net delay. From the partial record before this court, it is
    clear there is delay attributable to the defence. For example, the appellant changed
    lawyers twice. Second, the court must consider any exceptional circumstances
    or unexpected events. Third, the court must consider the transitional
    exceptional circumstances arising from reasonable reliance on the
Morin
criteria.
    As Doherty J.A. stated in
Gordon
, at

paras. 19 and 23:

Jordan
recognized that the new approach to delay could
    not simply be applied without qualification to those cases that were in the
    system prior to the release of
Jordan
and had proceeded on the basis
    that
Morin
established the constitutional standard for unreasonable
    delay.



In most cases, especially when all of the delay occurred prior
    to the release of
Jordan
, if the court concludes that the delay was
    not unreasonable under
Morin
, the transitional exceptional
    circumstance described in
Jordan
will justify delays beyond [the
    presumptive ceiling].

[26]

The
    absence of a record creates an insurmountable hurdle for the appellant. We are
    unable to consider the reasonableness of the delay  or indeed where the onus
    lies  without a record of events after
April 2,
    2013
. On an 11(b) application, the court expects all transcripts of all
    relevant proceedings to be filed:
see
R.
    v. Allen
(1996), 92 O.A.C. 345, at p. 344
.

[27]

We
    therefore conclude the trial judge did not err in dismissing the April 2, 2013
    application, and we are unable to expand the inquiry to include the actual time
    to judgment, as there is no record.

(2)

Did the trial judge err in not finding a breach of the appellants
    rights under s. 8 of the
Charter
and by not excluding evidence
    obtained as a result of that breach pursuant to s. 24(2)?

[28]

When
    the trial judge dismissed the appellants s. 8 application, he did not have the
    benefit of the Supreme Courts decision in
R. v. Spencer
,
2014 SCC 43, [2014] 2 S.C.R. 212,
which found that requests for Internet
    subscriber information that are warrantless engage serious privacy interests
    and therefore violate s. 8 of the
Charter.
The Crown concedes,
    pursuant to
Spencer
, the appellants s. 8 rights were infringed.

[29]

The
    appellant submits there was a further breach of s. 8 because of the staleness
    of the information underlying the ITO. We do not agree. The application judge concluded,
    based on the evidence available to the judicial officer considering the ITO,
    that there were reasonable and probable grounds to believe there was evidence
    that could be obtained from a search warrant. We see no basis to interfere with
    that conclusion.

[30]

We
    agree, however, in light of
Spencer
,

the appellants
Charter
rights were violated with respect to the polices requests for Internet
    subscriber information. Having found otherwise, the application judge did not
    proceed to a s. 24(2) analysis. This court, however, is in a position to do so.

[31]

The test for applying s. 24(2) is set out in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353. The court must assess and balance
    the effect of admitting the evidence on societys confidence in the justice
    system, having regard to the following factors: (1) the seriousness of the
Charter
-infringing state conduct; (2) the impact of the breach on the
Charter
-protected interests of the accused; and (3) societys interest in the
    adjudication of the case on its merits:
Grant
, at
    para. 71.

[32]

Here, the state conduct cannot be characterized as a willful or
    flagrant disregard of the
Charter
. The law was
    different at the time of the search, and the nature of the police conduct in
    this case would not tend to bring the administration of justice into disrepute.

[33]

Second, the impact of the
Charter
-
infringing conduct on the appellants
Charter
-protected privacy rights was serious, which weighs in favour of excluding
    the evidence.

[34]

Lastly, we consider societys interest in adjudicating
    the case on the merits
. As explained in
Grant
, while the public has a heightened interest in seeing a determination
    on the merits where the offence charged is serious, it also has a vital
    interest in having a justice system that is above reproach:
Grant
, at para. 84.

[35]

The offences here involve the victimization of children. The trial
    judge opined that the images were among the most extreme he had ever seen. If
    the evidence is excluded, the Crown will effectively have no case. The impugned
    evidence (the electronic files containing child pornography) is reliable and
    was admitted by the defence at trial to constitute child pornography. Society
    undoubtedly has an interest in seeing a full and fair trial based on reliable
    evidence, and all the more so for a crime which implicates the safety of
    children.

[36]

It
    is notable that in
Spencer,
Cromwell J. balanced the three factors in
Grant
and concluded:
exclusion of the evidence rather than its admission
    would bring the administration of justice into disrepute: at para. 81. Here,
    we come to the same conclusion.

(3)

Did the trial judge err in his credibility assessments of defence
    witnesses?

[37]

The
    appellant submits the trial judge held the defence witnesses to a different
    standard than he did the Crowns with respect to their credibility. In
    particular, the trial judge referred to Crown witnesses evidence as being
    uncontradicted and referred explicitly to evidence he would have expected the
    defence to lead to support its theory  for example, evidence there had been a
    virus installed on the appellants computer, or evidence that would refute the
    believed identity of the Peter1111 accounts user  which effectively reversed
    the burden of proof.

[38]

We
    do not agree.

[39]

The
    trial judge explicitly adverted to the Supreme Courts judgment in
W.(D.)
and applied it to his reasons. In referring to the Crowns witnesses evidence
    as uncontradicted, the trial judge did not reverse the burden of proof.
    Rather, he was describing the state of the evidence.

[40]

Nor
    did the trial judge subject defence evidence to a higher level of scrutiny than
    the Crowns evidence. The main aspects of the witnesses testimony did not
    overlap. The Crowns witnesses testified largely to the results of forensic
    examination of the appellants computer, whereas the appellant and his brother
    were discussing the use of the computer. In any event, the trial judge gave
    cogent and detailed reasons for his findings, which are entitled to deference.

[41]

We
    do not give effect to this ground of appeal.

(4)

Did the trial judge err in not staying the conviction for possession of
    child pornography pursuant to the
Kienapple
principle?

[42]

The
    appellant seeks leave to appeal his sentence on the basis that the trial judge
    should have applied the
Kienapple
principle to stay the charge of making
    child pornography available because both convictions arose from the same facts
    and time period. In failing to do so, the trial judge committed a reversible
    error.

[43]

We
    do not accept this submission.

[44]

There
    is no legal nexus between the offences of possession of child pornography and
    making child pornography available. The former involves possession, the latter
    involves distribution. In the circumstances of this case, a factual nexus is
    also absent. In any event, since the sentences were imposed concurrently, there
    is no practical result stemming from applying the
Kienapple
principle
    in terms of the effect on the overall sentence.

E.

Disposition

[45]

For
    these reasons, the appeal is dismissed. Leave to appeal sentence is granted,
    but the sentence appeal is dismissed.

George R. Strathy
    C.J.O.

M.L. Benotto J.A.

B.W. Miller J.A.





[1]

R. v. Kienapple
, [1975] 1
    S.C.R. 729.


