



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Butler-Antoine, 2020 ONCA
    354

DATE: 20200605

DOCKET: C67202

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

BETWEEN

Her Majesty the Queen

Respondent

and

Bailey Butler-Antoine

Appellant

Bailey Butler-Antoine,
    acting in person

Lindsay
    Daviau, appearing as duty counsel

Andrew
    Hotke, for the respondent

Heard: June 1, 2020

On appeal from the
    convictions entered on May 10, 2018 by Justice Jane E. Kelly of the Superior
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant, Bailey Butler-Antoine, appeals
    his convictions for accessing, possession of, and distribution of child
    pornography, contrary to ss. 163.1(4.1), 163.1(4), and 163.1(3) of the
Criminal
    Code
, R.S.C. 1985, c. C-46. The appellant abandoned his sentence appeal in
    oral submissions.

[2]

On February 10, 2016, the National Centre for
    Missing and Exploited Children provided a report to police, which revealed that
    a video of child pornography was uploaded to, and made publicly available, on a
    website called vid.me a day earlier. Further investigation revealed that the
    IP address used to upload the video was associated with the appellants
    residence.

[3]

On May 17, 2016, a search warrant was executed
    at the appellants residence. Following the search of a computer that the
    appellant conceded belonged to him, 63 videos of child pornography and 287
    images were found in plain sight within files and folders on the computer. The
    images were described as anime, a style of Japanese animation. An additional 102
    videos of child pornography were located on the computer, but were not in
    plain sight (e.g., deleted).

[4]

At trial, the appellant conceded that the videos
    constituted child pornography, but argued that the anime images did not. He
    denied that he accessed, possessed, or distributed child pornography. He did
    not testify, but adduced evidence, including testimony from his mother, that
    his computer was used by other people, including members of his household and
    visitors.

[5]

The trial judge found that the videos and images
    constituted child pornography. She also found that, despite the defence
    evidence regarding the use and control of the computer, the only reasonable
    inference available on the circumstantial evidence was that the appellant had
    accessed, possessed, and distributed the child pornography.

[6]

The appellant raises one issue on appeal: the
    trial judge erred in her application of
R. v. Villaroman
, 2016 SCC 33,
    [2016] 1 S.C.R. 1000, by finding that guilt was the only reasonable inference
    available, despite having accepted the appellants mothers testimony that
    other people had access to the appellants computer. As part of his argument,
    the appellant submits that the trial judge mistakenly conflated the evidence
    that other peoples use of the wifi password  which the appellant claimed was
    occasional in his statement to police  with their use of his computer, which
    was not occasional, but more frequent.

[7]

We are unable to give effect to the appellants
    submissions.

[8]

Where the evidence of identity at trial was
    circumstantial and the trial judge has found that the only reasonable
    conclusion available on the totality of the evidence was the accuseds guilt,
    an appellate court may only interfere if the trial judges conclusion was
    itself unreasonable. It is fundamentally for the trier of fact to draw the
    line  that separates reasonable doubt from speculation:
R. v. Youssef
,
    2018 ONCA 16, 428 D.L.R. (4th) 612, at para. 4, affd 2018 SCC 49, [2018] 3
    S.C.R. 259, quoting
Villaroman
, at para. 71.

[9]

In this case, the trial judge dealt directly
    with the defences evidence, including the statement given by the appellant to
    police at the time of his arrest, and the evidence given by his mother at
    trial. The trial judge acknowledged that, while much of the defence evidence
    corroborated the defence position, after looking at the evidence as a whole,
    she was satisfied beyond a reasonable doubt that the appellant had possession and
    control of his computer. She considered the fact that other people resided in
    or visited the home where the appellant lived, as well as the evidence of the
    appellants mother that, at times, she enabled visitors to use his computer. She
    also considered and reconciled the evidence that there was a history on his
    computer of thousands of visits, at all times of day, to pornographic websites,
    including websites for hentai, which is a subgenre of Japanese animation,
    characterized by overtly sexualized characters and plots. According to the
    trial judge, the evidence regarding the use of the computer by visitors did not
    give the impression that they would be accessing the computer at these times of
    day. Rather, the evidence suggested that the appellant had primary control over
    his computer, with others only having limited access. Based on the
    circumstantial evidence, the only reasonable inference to be drawn was that the
    appellant had control over his computer and that he accessed, possessed, and
    made available the child pornography through vid.me. We see no error in this
    conclusion or in the trial judges approach to the evidence.

[10]

Accordingly, the appeal is dismissed.

Alexandra
    Hoy A.C.J.O.

J.C.
    MacPherson J.A.

M.
    Tulloch J.A.


