



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Duncan, 2013 ONCA 774

DATE: 20131219

DOCKET: C55452

Doherty, MacPherson and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Duncan

Appellant

P. Andras Schreck and Candice Suter, for the appellant

Suhail Akhtar, for the respondent

Heard and released orally: December 12, 2013

On appeal from the conviction entered on February 29,
    2012 by Justice Wolfram Tausendfreund of the Superior Court of Justice, sitting
    with a jury.

ENDORSEMENT

[1]

The appellant William Duncan appeals his conviction by Tausendfreund J.
    of the Superior Court of Justice, sitting with a jury, for possession of child
    pornography and making child pornography available.  The appellant abandoned
    his sentence appeal.

[2]

The appellant appeals on three grounds: (1) the trial judge did not
    instruct the jury properly on wilful blindness; (2) the trial judge erred by
    permitting the jury to view a 20 second portion of a video showing child
    pornography after the appellant admitted that there was child pornography on
    his home computer; and (3) the trial judge misstated in his jury charge an
    important aspect of the testimony of an expert witness.

[3]

We did not call on the Crown to address the second issue.

[4]

In our view, the appeal must be resolved in favour of the appellant on
    the first ground.  As the trial unfolded, the Crowns principal position was
    not that the appellant had actual knowledge of the child pornography on his
    home computer, but that he was wilfully blind about the child pornography that
    his house guest had placed and used on the computer.  The house guest was a
    young man who the appellant permitted to live with him, and with whom he later
    developed a sexual relationship.

[5]

The Crown concedes that the trial judges original charge on wilful
    blindness was too broad in that he told the jury that wilful blindness applied
    if the appellant knew that the child pornography
could be
accessed
    through Limewire or had a suspicion that it could be. [Emphasis added.]  The
    Crown acknowledges that the doctrine of wilful blindness has application only
    if the appellant suspected that child pornography
was
being accessed.

[6]

However, the Crown contends that the trial judges re-charge cured the
    problem.

[7]

The trial judge re-charged the jury as follows:

[W]hen I refer to count number one in the indictment, and this
    is possession of child pornography, and what I had indicated to you that if you
    find William Duncan  for you to find William Duncan guilty on count one, you
    must be satisfied beyond a reasonable doubt that William Duncan either accessed
    child pornography on his computer or was wilfully blind to the fact that it was
    being accessed.  That still stands. Beyond accessing, what possession includes
    is that not only accessing, but that William Duncan knew that child pornography
    was on the computer that day and was either  either knew it or was wilfully
    blind to the fact that it was on.  So, let me re-charge you then with respect
    to count one.  For you to find William Duncan guilty on count one, possession
    of child pornography, you must be satisfied beyond a reasonable doubt that
    William Duncan either accessed child pornography on his computer or knew that
    there was child pornography on his computer or was wilfully blind to the fact
    that child pornography was being accessed on his computer
or
was
    wilfully blind to the fact that child pornography was on his computer and
    wilfully blind in the sense that he either knew that child pornography
could
    be accessed
through Limewire
or had a suspicion that it could be
,
    or that he was wilfully blind to the fact that child pornography was on his
    computer or had
a suspicion
that it was on his computer but had made a
    conscious decision not to determine, if his suspicion was, in fact, an
    actuality.  And if so, if you are satisfied beyond a reasonable doubt of that,
    you must find him guilty.  [Emphasis added.]

[8]

We agree with the appellant that there are two problems with this
    re-charge.

[9]

First, the re-charge did not correct the original error in the charge;
    indeed, in the emphasized language above, the trial judge repeated and
    therefore reinforced the error.  The problem with the original charge, as the
    Crown now concedes, is that the trial judges definition of wilful blindness
    was too broad.  Similarly, however, in the re-charge the language, emphasized
    above, of could be and had a suspicion that it could be  does not say
    anything about the level of suspicion to engage the doctrine of wilful
    blindness: see, for example,
R. v. Briscoe
, 2010 SCC 13, at paras. 21
    and 23, and
R. v. Malfara
, 211 O.A.C. 200, at paras. 4-5.

[10]

Second,
    and with respect, the summary of wilful blindness set out above, starting with
    the words For you to find is very confusing.  We do not think that this short
    passage, packed with five or more possible routes to conviction, including some
    involving wilful blindness and others not involving it, would have been
    comprehensible to a jury.

[11]

The
    appeal is allowed, the convictions are quashed, and a new trial is ordered.

Doherty
    J.A.

J.C.
    MacPherson J.A.

M.
    Tulloch J.A.


