R. v. Villaroman (O.O.), [2016] A.R. TBEd. JL.093
MLB being edited
Currently being edited for A.R. – judgment temporarily in rough form.
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
Temp. Cite: [2016] A.R. TBEd. JL.093
Her Majesty The Queen (appellant) v. Oswald Oliver Villaroman (respondent) and Attorney General of Ontario, Attorney General of British Columbia and Criminal Lawyers’ Association (Ontario) (interveners)
(36435; 2016 SCC 33; 2016 CSC 33)
Indexed As:
R. v. Villaroman (O.O.)
Supreme Court of Canada
McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ.
July 29, 2016.
Summary:
While repairing the accused’s laptop, a technician found child pornography and contacted the police. The police seized the computer and obtained a general warrant to search the computer image. The accused was charged with (1) possession of child pornography, (2) possession of child pornography for the purpose of transmission, making available, distribution, sale or exportation, and (3) accessing child pornography. The accused applied to exclude the evidence alleging an unreasonable search and seizure contrary to s. 8 of the Charter.
The Alberta Court of Queen’s Bench, in a judgment reported (2012), 557 A.R. 1, held that the accused had not been subjected to an unreasonable search and seizure. Alternatively, had the accused’s s. 8 Charter rights been infringed, the court opined that the evidence would not have been excluded under s. 24(2).
The Alberta Court of Queen’s Bench, in a judgment reported (2013), 562 A.R. 105, found the accused guilty of possession of child pornography, but not guilty of the remaining two charges. The accused appealed his possession conviction.
The Alberta Court of Appeal, in a judgment reported (2015), 599 A.R. 294; 643 W.A.C. 294, allowed the appeal and substituted an acquittal. The court held that the trial judge misstated the current law on weighing circumstantial evidence and that the verdict was unreasaonable. The Crown appealed.
The Supreme Court of Canada allowed the appeal and remitted the matter to the Court of Appeal to deal with the Charter issues that were not decided respecting the search of the computer.
Criminal Law – Topic 575.1
Sexual offences, public morals and disorderly conduct – Public morals – Obscenity – Possession of child pornography – While repairing the accused’s non-password protected laptop computer, a technician found child pornography and contacted the police, who seized the computer under a general warrant and searched its contents – The accused was charged with, inter alia, possession of child pornography – The accused admitted that files on his computer contained child pornography (downloaded using the Limewire program), but argued that the Crown failed to prove beyond a reasonable doubt that he had knowledge and control of the child pornography – The trial judge held that possession of child pornography required “possession of the underlying data files, and not just cached information that might appear on a computer’s hard drive from viewing information from remote locations. The latter would not be sufficient to show that he had the level of control necessary to prove possession, although it might support a finding of accessing” – The accused was found guilty of possession of child pornography – The downloaded child pornography was found in manually created folders – It was not inadvertently downloaded – The files were opened and viewed manually – The trial judge was satisfied beyond a reasonable doubt that the accused knew that there was child pornography on his computer – The Alberta Court of Appeal substituted an acquittal where “on this skimpy evidence, a properly-instructed jury could not reasonably and judicially find that the [accused] put the child pornography on the computer or knew it was there” – The court stated, inter alia, that “If there had been evidence that only the three people lived in the residence, and that the computer never left the home, we might have had less concern. Had there been that evidence and also further evidence that other persons did not come and use the computer, nor use the room where it was located, probably we would not interfere with the conviction. Other possibilities would then be too remote. But there is no such evidence” – The Supreme Court of Canada allowed the Crown’s appeal – The trial judge’s finding that the accused knew there was child pornography on his computer was reasonable – The court stated that “While the accused need not lead evidence to show that another person had such access to his laptop, based on the evidence and lack of evidence before the court, it is speculative to consider whether another person had such an opportunity, let alone to assume that [the accused] would be ignorant of the presence of the material on his computer.” – The Court of Appeal erred by focussing on hypothetical alternative theories and engaging in speculation rather than determining whether the inferences drawn by the trial judge, having regard to the standard of proof, were reasonably open to him – While the Crown’s case was not overwhelming, “it was reasonable for the judge to conclude that the evidence as a whole excluded all reasonable alternatives to guilt” – See paragraphs 47 to 72.
Criminal Law – Topic 5320.2
Evidence and witnesses – Inferences – From circumstantial evidence – The Supreme Court of Canada discussed inferences to be drawn from circumstantial evidence – The court stated that “I have suggested the use of the word ‘reasonable’ to describe the potential inferences rather than the word ‘rational’ … In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts … Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. I agree … that a reasonable doubt, or theory alternative to guilt, is not rendered ‘speculative’ by the mere fact that it arises from a lack of evidence. … A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. When assessing circumstantial evidence, the trier of fact should consider ‘other plausible theor[ies]’and ‘other reasonable possibilities’ which are inconsistent with guilt … I agree … that the Crown thus may need to negate these
reasonable
possibilities, but certainly does not need to ‘negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused’ … ‘Other plausible theories’ or ‘other reasonable possibilities’ must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. … the basis question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty” – See paragraphs 13 to 38.
Criminal Law – Topic 5320.2
Evidence and witnesses – Inferences – From circumstantial evidence – [See
Criminal Law – Topic 575.1
].
Counsel:
Jolaine Antonio and Jason Wuttunee, for the appellant;
Ian D. McKay and Heather Ferg, for the respondent;
Matthew Asma, for the intervener, the Attorney General of Ontario;
Written submissions only by Daniel M. Scanlan, for the intervener, the Attorney General of British Columbia;
Sharon E. Lavine and Naomi M. Lutes, for the intervener, the Criminal Lawyers’ Association (Ontario).
Solicitors of Record:
Attorney General of Alberta, Calgary, Alberta, for the appellant;
Evans Fagan Rice McKay, Calgary, Alberta, for the respondent;
Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;
Attorney General of British Columbia, Victoria, British Columbia, for the intervener, the Attorney General of British Columbia;
Greenspan Humphrey Lavine, Toronto, Ontario, for the intervener, the Criminal Lawyers’ Association (Ontario).
This appeal was heard on March 21, 2016, before McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ., of the Supreme Court of Canada.
On July 29, 2016, Cromwell, J., delivered the following judgment in both official languages for the Court.
