



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    shall not be published in any document or broadcast or transmitted in any way.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. Akenna, 2018 ONCA 212

DATE: 20180302

DOCKET: C61138

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

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Akenna

Appellant

Alan Gold, for the appellant

Amy Alyea, for the respondent

Heard: February 27, 2018

On appeal from the conviction entered on April 27, 2015
    and the sentence imposed on October 15, 2015 by Justice Robert Graydon of the
    Ontario Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

Daniel Akenna was charged with one count each of possession of child
    pornography, making available child pornography, and breach of probation. He
    was convicted at trial of possession of child pornography and breach of
    probation. The charge of making available child pornography was dismissed at
    the request of the Crown.

[2]

On appeal, the appellant submits that a miscarriage of justice has
    occurred as a result of the ineffective assistance of counsel on the grounds
    that:

1.

The admission in an agreed statement of facts that
    [d]uring the search warrant, Janet Bradley, the mother of Daniel Akenna,
    indicated that only her and Akenna were present in the house on the 25th and
    26th of September 2013 was made without his knowledge or agreement, which
    materially affects the findings of guilt; and

2.

The admissibility of his video statement
    to police was conceded, without his concurrence and without a full
    investigation of the circumstances immediately prior to and surrounding the
    making of the statement.

[3]

On the basis of this alleged miscarriage of justice, the appellant seeks
    an order for a new trial. He abandoned his sentence appeal.

[4]

For the reasons that follow, we dismiss the appeal on the basis that the
    appellant has not shown that a miscarriage of justice resulted from the alleged
    ineffective assistance of counsel.

[5]

In our view, even if the appellant is correct that his videotaped police
    interview should not have been admitted and/or that his mothers statement
    should not have been included in the agreed statement of facts, there remains a
    substantial body of evidence from which the trial judge could have made the
    same factual findings and convicted the appellant of possession of child
    pornography and breach of probation.

[6]

This body of evidence includes the following:

·

The appellant owned the computer
    that police seized with a hard drive in it containing the child pornography
    files.

·

The registered owner of the
    Windows operating system on the computer was dan. The user enters that
    information when he or she installs the operating system.

·

The user account only showed one
    active user registered on the computer and that account was in the name of
    dan.

·

The profile dan was the only
    active user on the hard drive where the child pornography was found, in an
    encrypted folder.

·

The encrypted folder was
    password-protected. The password required to access the encrypted folder was
    the same password that was required to log into Windows on the profile dan.

·

The child pornography videos were
    downloaded to a separate hard drive from the one on which the peer-to-peer file
    sharing programs were downloaded.

·

Detective Constable Townsend
    testified that no one had access to the computer remotely or from outside the
    home.

·

Between 3:56:44 p.m. and 4:48:13 p.m. on September 25, 2013, the
    user visited a website, watched a YouTube video and used Facebook through an
    account in the name of dan.akenna to view a post made earlier in the day by
    Dan Akenna.

·

On September 25, 2013, from
    4:57:43 p.m. to 6:53:54 p.m., the user downloaded a number of peer-to-peer file
    sharing programs. The first download of child pornography was completed at
    7:13:37 p.m. on September 25, 2013 and the last download of child pornography
    was initiated at 9:04:17 p.m. on September 25, 2013. At 7:52:53 p.m. that
    evening, the user logged into the Facebook account dan.akenna and at 7:54:08
    p.m., the user logged into an email account civic_street_racer@hotmail.com.
    The email address

had fields populated with the appellants personal
    data information including his first name, last name, address, and postal code.

·

The search history on the computer
    in the days leading up to the downloading of the child pornography was
    consistent with the search history during the time the child pornography was
    downloading. Similar searches were also conducted the day after the child
    pornography was downloaded.

[7]

Given the substantial body of evidence unrelated to the appellants
    police interview or his mothers statement, the appellant has not shown that
    the competent performance of counsel  if indeed counsel was incompetent 
    might reasonably have resulted in a different verdict. We conclude that there
    is no reasonable prospect that the result would be different based on the
    record below or on this appeal. In the result, the appellant has not demonstrated
    that a miscarriage of justice occurred. The appeal is dismissed.

G.R.
    Strathy C.J.O.

Janet
    Simmons J.A.

C.W.
    Hourigan J.A.


