



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)       REPEALED: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    information that could identify the victim shall not be published in any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. Capancioni, 2018 ONCA 173

DATE: 20180223

DOCKET: C62698 and C62585

Hoy A.C.J.O., MacPherson and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent/Appellant

and

Robert Capancioni

Appellant/Respondent

Andrew Furgiuele, for the appellant/respondent on Crown
    appeal

Melissa Adams, for the respondent/appellant on Crown
    appeal

Heard: January 22, 2018

On appeal from the conviction and the acquittal entered
    by Justice Edward Gareau of the Superior Court of Justice, dated July 27, 2016.

Hoy A.C.J.O.:

[1]

Robert Capancioni was convicted of possession of
    child pornography, contrary to s. 163.1(4) of the
Criminal Code
, but acquitted of making child pornography available, contrary to
    s. 163.1(3) of the
Criminal Code
.

[2]

He appeals his conviction on
Charter
grounds, arguing that the
    search of his residence and computer violated his rights under s. 8 of the
Charter of Rights and Freedoms
and the
    evidence flowing from it should have been excluded under s. 24(2) of the
Charter
. The Crown concedes that the
    search was unlawful. Therefore, the narrow issue on Mr. Capancionis appeal is
    whether the evidence flowing from the unlawful search should have been excluded
    under s. 24(2) of the
Charter
.

[3]

The Crown appeals Mr. Capancionis acquittal on the
    count of making child pornography available, arguing that the trial judge erred
    in his application of the
mens rea
requirement for making child pornography available under s.
    163.1(3) of the
Code
.

I

THE BACKGROUND

[4]

A host of computer applications have been developed for the purpose of
    allowing individual computer users to obtain and share information over the
    internet. They use what are referred to as peer-to-peer networks.

[5]

The Internet Crimes Against Children Task Force uses sophisticated investigative
    software to investigate suspected child pornography possessors and traffickers
    within these peer-to-peer networks. The Task Force suspected that internet
    protocol (IP) address 24.109.39.74 (the Address) was downloading and
    sharing child pornography on the internet through a peer-to-peer file sharing
    software program.

[6]

As a result of the Task Forces suspicions, Detective Constable Erkkila
    began monitoring the Address in November 2012.

[7]

On December 2, 2012, Erkkila identified and downloaded a suspect file
    located at the Address. Erkkila was not satisfied that the downloaded images
    that were able to be viewed met the definition of child pornography, although
    one image showed a naked prepubescent female who appeared to be approximately
    10 years of age. She lay on her back, on a red shag carpet, with her body
    oriented away from the camera.

[8]

The 40-digit peer ID number, that is, the serial number identifying
    the specific installation of the file sharing software on the computer from
    which Erkkila downloaded the file, was recorded.

[9]

Information about the general geographic location of the Address was
    publicly available over the internet. The Address was registered to Shaw
    Communications Inc. On December 3, 2012, Erkkila submitted a Law Enforcement
    Request (LER) to Shaw, requesting the subscriber information for the Address.
    On December 5, 2012, Shaw provided the name and precise municipal address of
    the account holder, the appellants spouse.

[10]

On
    December 31, 2012, Erkkila downloaded from the Address two different files that
    police investigative software flagged as suspect. Both contained images of
    child pornography. At the time of each download, the 40-digit peer ID number indicating
    the specific installation of software on the suspect computer from which the
    file was downloaded was recorded. One set of downloaded images featured a
    prepubescent female who appeared to be between 8 and 10 years of age.

[11]

Erkkila
    obtained a search warrant to search the house located at the address disclosed
    by Shaw in response to the LER and to search and seize the computer systems and
    all related devices and data located in the house.

[12]

The
    evidence seized as a result of that search led to the appellants conviction
    for possession of child pornography.

II

THE
CHARTER
APPEAL

The reasons below

[13]

A
    year and a half after Erkkila submitted the LER to Shaw, the Supreme Court, in
R.
    v. Spencer
,
2014 SCC 43, [2014]
    2 S.C.R. 212, determined that a police request that an internet service
    provider disclose subscriber information amounts to a search, and, if prior
    judicial authorization is not obtained, violates the subscribers rights under
    s. 8 of the
Charter
.

[14]

Applying
Spencer
in his Reasons on
Charter
Application, the trial
    judge found that Erkkila would not have had reasonable and probable grounds to
    obtain a judicial authorization at the time that he submitted the LER, and
    therefore, although consistent with police practice at the time, the LER was
    obtained in breach of the appellants
Charter
rights.

[15]

The
    trial judge then applied the three-pronged test in
R. v. Grant
, 2009
    SCC 32, [2009] 2 S.C.R. 353, to determine if the admission of the evidence
    would bring the administration of justice into disrepute, or if the evidence
    should be admitted under s. 24(2) of the
Charter
.

[16]

He
    found that the first
Grant
consideration  the seriousness of the
Charter
-infringing
    State conduct  favoured inclusion of the evidence. Erkkila was simply
    following procedures that, in the pre-
Spencer
world, he reasonably
    believed to be lawful. The second
Grant
consideration  the impact of
    the
Charter
breach on Mr. Capancionis
Charter
-protected
    interests  favoured excluding the evidence. The violation of an individuals
    privacy rights is a serious matter. The third
Grant
factor  societys
    interest in the adjudication of the case on its merits  favoured the inclusion
    of the evidence. The evidence sought to be excluded was crucial to establishing
    that Mr. Capancioni accessed, possessed and made available child pornography.
    Balancing these three factors, the trial judge concluded that the exclusion of
    the evidence would bring the administration of justice into disrepute.

[17]

The
    trial judge then turned to the appellants argument that the Information to
    Obtain (the ITO) the search warrant did not contain full and frank disclosure
    and misstated the facts.

[18]

Erkkila
    acknowledged that he had mistakenly stated in the ITO that the same peer ID number
    was identified on his download of the file on December 2, and on the downloads
    of the two files on December 31. In fact, the first 16 digits of the 40-digit
    number were the same. Erkkila explained that he looked at the first 12 or 16
    digits and, because they were the same, assumed that it was the same peer ID
    number.

[19]

The
    trial judge found that there was no bad faith, and that Erkkilas error was
    inadvertent and inconsequential. In the trial judges view, if the erroneous
    information were removed, the ITO provided reasonable and probable grounds for
    the issuance of the warrant.

[20]

The
    trial judge explained that Erkkila:

[W]as very clear in his evidence that it is the IPA number, the
    internet protocol number, which identifies the internet location that the
    computer is attached to. It is the IP address that provides the link to the
    geographical address. The peer ID number does not assist in connecting the
    virtual world to the geographical location of the computer.

If the IP addresses were reported as being the same and they
    were in fact not, that would be a matter of consequence with respect to the ITO
    and the issuance of the search warrant.

[21]

The
    trial judge concluded that there was no breach of Mr. Capancionis s. 8
Charter
rights as it relates to the Information to Obtain. Given that conclusion, he
    did not address s. 24(2) of the
Charter
.

Section 24(2) analysis

[22]

On
    this appeal, the Crown concedes that the trial judge erred in his
Charter
analysis in relation to the error contained in the ITO. In determining whether
    there were reasonable and probable grounds for the issuance of the warrant, the
    trial judge should have excluded the information obtained pursuant to the LER,
    and not just the erroneous information about the peer ID number.  The Crown
    concedes that without that information, the warrant to search the residence
    clearly could not have issued.

[23]

It
    is agreed that, because of this error, this court must apply the three-prong
    test in
Grant
and conduct its own s. 24(2) analysis.

(i)

Seriousness of the
Charter
-Infringing State Conduct

[24]

With respect to the first
Grant
factor

the seriousness of the
Charte
r-infringing state
    conduct that led to the breach of Mr. Capancionis s. 8
Charter
rights

like the trial judge, having regard to the
    circumstances, I would not characterize the making of the LER as serious
Charter
-infringing
    state conduct.  As the trial judge reasoned, in making the LER, Erkkila
    followed procedures that he reasonably believed to be lawful and was proven
    wrong, after the fact, by developments in the jurisprudence.

[25]

This leads to the significance of Erkkilas
    mistake in relation to the peer ID numbers in determining the seriousness of
    the state conduct that infringed Mr. Capancionis s. 8
Charter
rights.

[26]

Mr. Capancioni does not dispute the trial
    judges findings that Erkkilas error was inadvertent and there was no bad
    faith, and I agree with those important findings.

[27]

Mr. Capancioni argues that the trial judges
    conclusion that the peer ID number does not assist in connecting the virtual
    world to the geographic location of the computer resulted from a
    misapprehension of the corroborative importance of the peer ID numbers and led
    him to mistakenly characterize Erkkilas error as inconsequential.

[28]

In the ITO, Erkkila explained that an IP address
    can be static or dynamic, meaning that the subscribers IP address may change.
    He indicated that, in his experience, Shaw subscribers typically have a
    dynamic IP address but they may keep the same IP address for longer periods of
    time ranging from several days to several months.

[29]

Assuming the Address was dynamic, Mr. Capancioni
    asserts that if the peer ID number had been the same on December 31 as on
    December 2, the fact that it was the same would have provided certainty that
    the Address had not been assigned to a different Shaw subscriber, located at a
    different address, after Shaw responded to the LER, and that, at the time that Erkkila
    swore the ITO, the Address remained associated with Mr. Capancionis residence.
    Mr. Capancioni asserts that without such corroboration, the issuing judge could
    not have issued the warrant. Therefore, he submits, although Erkkilas mistake
    was inadvertent and there was no bad faith, his mistake was nonetheless serious
Charter
-infringing state conduct, and weighs in favour of the
    exclusion of the evidence.

[30]

I agree with Mr. Capancioni that, although Erkkila
    was clear that he did not rely on the peer ID number to determine the location
    of the house, logically, had the peer ID number been the same at the time of
    the downloads on December 31 as on December 2, it would have had some
    corroborative value.  However, I would not characterize Erkkilas mistake about
    the peer ID number as serious
Charter
-infringing state conduct
    favouring exclusion of the evidence.

[31]

Turning first to the corroborative effect, Erkkila
    testified that the peer ID number is not information that he required to
    determine the location of the house, and that he included the peer ID number
    because he had this information during the investigation and wanted to ensure
    that he provided full, fair and frank disclosure to the issuing justice. Erkkila
    testified that the Address was in fact a static address.
[1]
He also testified that he
    had the same Internet Protocol address on three different occasionsbetween
    the 2nd and 31st, and that he did not require another LER to confirm that the
    Address remained associated with the same subscriber.

[32]

In lay terms, Erkkila explained that a peer ID number
    is specific to a program on a particular device. The IP address is associated
    with the router

the physical point at which internet
    access is provided to a residence or business. When internet is provided to the
    residence or business through the router, multiple devices

including those of visitors to the residence or business

can access the internet. The peer ID number permits police to
    determine which device accessed the internet through the IP address under
    investigation.

[33]

If the peer ID number had been the same on
    December 31 as on December 2, it would have indicated that on both December 2
    and December 31 the same device accessed the internet through the Address. In
    light of the information in the ITO that Shaw IP addresses are typically dynamic,
    logically, this could have provided the issuing justice with greater certainty
    that, on December 31, the Address remained associated with the same subscriber,
    and therefore the same municipal address, as on December 2.

[34]

However, for several reasons I conclude that Erkkilas
    mistake in the ITO with respect to the peer ID number is not state conduct that
    favours exclusion of the evidence seized under the first
Grant
factor.

[35]

First, the first line of inquiry under
Grant
necessitates an evaluation of the seriousness of the state conduct that led to
    the violation of the
Charter


in this case the unlawful search of Mr. Capancionis residence. The
    state conduct that led to the violation of the
Charter
was the
    unlawful search by making the LER. Without the information obtained in response
    to the LER, Erkkila could not and would not have sought the warrant. In light
    of this, his subsequent mistake in the ITO with respect to the peer ID number
    was, as the trial judge found (albeit for different reasons), inconsequential.

[36]

Second, the trial judge accepted Erkkilas
    evidence that he did not rely on the peer ID number in determining the location
    of the house. As the trial judge erroneously considered the evidence in
    response to the LER linking Mr. Capancionis house to the Address on December
    3, he effectively considered the significance of Erkkilas error on a
    stand-alone basis. He found that Erkkilas error was inconsequential and there
    was sufficient information in the ITO to establish that evidence of child pornography
    would probably be found if Mr. Capancionis house and computer were searched. Although
    the peer ID number had some corroborative value, if the information in response
    to the LER linking Mr. Capancionis home to the Address could have been
    considered, this finding may well have been open to the trial judge given: the
    evidence of how and why the Task Force had identified the Address as suspect;
    the evidence of the photo of the nude pre-pubescent girl, approximately 10
    years of age, downloaded via the Address on December 2; and the 77 images of
    child pornography downloaded on December 31 some of which featured a nude
    pre-pubescent girl who appeared to be between the ages of 8 and 10.

[37]

Third, and significantly, Erkkilas mistake was
    inadvertent, and there was no bad faith. His mistake was made in the context of
    rapidly evolving technology. Two different peer ID numbers were associated with
    Mr. Capancionis computer on December 31. This was the first investigation that
    Erkkila  an uncontested expert in the field of computer forensics who had been
    involved in approximately 40 to 50 child pornography investigations  had been
    involved with where the peer ID number changed.

(ii)

Impact on the
Charter
-Protected Interests of the Accused

[38]

The unlawful search impacted on Mr. Capancionis
Charter
-protected
    privacy interests. As the Supreme Court noted in
R.
    v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, at
    para. 105, it is difficult to imagine a more intrusive invasion of privacy than
    the search of ones home and personal computer. This factor weighs in favour of
    the exclusion of the evidence.

(iii)

Societys Interest in an Adjudication on the
    Merits

[39]

The evidence seized was reliable and critical to
    the prosecutions case. This factor favours admission of the evidence.

[40]

Balancing my assessments under each of these
    three lines of inquiry, I conclude that the admission of the evidence would not
    bring the administration of justice into disrepute.

[41]

Accordingly, I would dismiss Mr. Capancionis
    conviction appeal.

III

THE CROWN APPEAL

[42]

Mr. Capancioni was charged with making available
    child pornography between September 23, 2012 and January 15, 2013, contrary to
    s. 163.1(3) of the
Criminal Code
. That section provides as follows:

Distribution, etc. of child
    pornography

(3) Every person who transmits,
makes
    available
, distributes, sells, advertises, imports,
    exports or possesses for the purpose of transmission, making available,
    distribution, sale, advertising or exportation any child pornography is guilty
    of an indictable offence and liable to imprisonment for a term of not more than
    14 years and to a minimum punishment of imprisonment for a term of one year.
    [Emphasis added.]

[43]

The accepted evidence at trial was that the
    peer-to-peer file sharing program Azureus was located on Mr. Capancionis
    computer.

[44]

In a prosecution under s. 163.1(3) for making
    available child pornography, the Crown must prove that the accused had
    knowledge that the pornographic material was being made available. In the
    context of a file sharing program, the
mens rea
element of making
    available child pornography requires proof of the intent to make computer files
    containing child pornography available to others using that program or actual
    knowledge, or wilful blindness to the fact, that the file sharing program makes
    files available to others. There is no additional requirement on the Crown to
    prove that the accused knowingly, by some positive act, facilitated the
    availability of the material: see
Spencer
,
at paras. 83, 84.

[45]

The trial judge wrote, at para. 46 of his
    Reasons for Judgment:

From the description of how the Azureus file
    sharing program is installed given in evidence by Detective Constable Erkkila
    there are active steps to be followed to install this type of program on a
    computer.
It would be difficult to believe that
    someone who was installing the Azureus program on their computer would not know
    that this program was a file sharing program where information and images could
    be downloaded from your computer to another computer which is also connected to
    the program
, as put by Erkkila in his evidence,
    When a person downloads this software, the terms of use and service must be
    agreed to before continuing the actual installation process. [Emphasis added.]

[46]

Then, at para. 51, the trial judge concluded as
    follows:

... I am satisfied that
the Crown has established that the offence took place on December
    31, 2012
when the material was downloaded to the
    police investigative computer, that the material downloaded were images of
    child pornography and that these images were made available by the accused,
    Robert Capancioni. Having said this, I can indicate that I am not satisfied
    beyond a reasonable doubt, in examining the totality of the evidence, that the
    Crown has proven that Robert Capancioni had the intent to make child
    pornography available to others. From the evidence
it
    is entirely possible that Robert Capancioni was transferring images from his
    computer to another computer without expressly knowing that these images were
    being transferred.
[Emphasis added.]

[47]

The Crown argues that the trial judge erred in
    law by requiring the Crown to prove that Mr. Capancioni knew about a specific
    act of distribution on December 31, 2012, a more onerous
mens rea
element than required.

[48]

I agree with the Crown that the trial judge
    erred by requiring the Crown to prove a more onerous
mens rea
element
    than required. Section 163.1(3) distinguishes between overt acts of
    dissemination, such as distribution, and the facilitation of the carrying out
    of those acts, such as make available: see
Spencer
, at paras. 82, 83.

[49]

The Crown was not required to prove that Mr.
    Capancioni had knowledge of an overt act of dissemination, namely that images
    of child pornography were being transferred to other computers. There was
    evidence that the images downloaded to the police investigative computer on
    December 31, 2012 had resided on Mr. Capancionis computer and were available
    to other members of the Azureus network since early August 2012. As the Crown
    submits, it was only required to prove that Mr. Capancioni knew, or was
    willfully blind to the fact, that Azureus makes files available to others.

[50]

I also agree that this error might reasonably
    be thought, in the concrete reality of this case, to have had a material
    bearing on the trial judges decision to acquit Mr. Capancioni and therefore
    satisfies the test in
R. v. Graveline
, 2006 SCC 16, [2006] 1 S.C.R.
    609, at para. 14, that must be met before an appeal of an acquittal by the
    Crown can succeed.

[51]

The Crown argues that the trial judge made the
    finding necessary to support a finding of guilt on the count of making
    available at para. 46 of his reasons and, therefore, this court may substitute
    a verdict of guilty and remit the matter back to the trial judge for
    sentencing. I disagree. In my view, a new trial is required. The trial judges
    finding at para. 46 is prefaced by the words it would be difficult to
    believe.  The
mens rea
requirement must be established beyond a
    reasonable doubt. Arguably, para. 46 is not a clear finding that the trial
    judge was satisfied beyond a reasonable doubt that Mr. Capancioni knew, or was
    wilfully blind to the fact, that the Azureus program shared data with other
    computers.

IV

DISPOSITION

[52]

For these reasons, I would dismiss Mr.
    Capancionis appeal and I would allow the Crowns appeal, overturn Mr.
    Capancionis acquittal on the count of making child pornography available, and
    order a new trial on that count.

Released: AH FEB 23 2018

Alexandra Hoy
    A.C.J.O.

I agree J.C.
    MacPherson J.A.

I agree Paul Rouleau
    J.A.





[1]

The transcript is not entirely clear whether this information
    was available to Erkkila at the time he swore the ITO.


