Focus On

Evidence - Methods of proof - Circumstantial evidence - Inferences - From possession - Of fact

Thursday, August 25, 2016 @ 8:00 PM  


Appeal by the Crown from a judgment of the Alberta Court of Appeal setting aside Villaroman’s conviction for possession of child pornography and entering an acquittal. Villaroman was having problems with his laptop computer, so he left it with a repair shop. The repair technician found child pornography on the laptop. He called the police, whose search of the laptop confirmed the presence of child pornography. Villaroman was charged with a number of pornography-related offences, including possession of child pornography contrary to s. 163.1(4) of the Criminal Code. The main factual issue at trial in relation to the possession of child pornography charge was whether the evidence established that Villaroman had been in possession of the child pornography. This required the Crown to prove that he knew the nature of the material, had the intention to possess it, and had the necessary control over it. The Crown’s case depended on the circumstantial evidence provided by the technician and the forensic analyst. At trial, the judge found that the mainly circumstantial evidence against the accused proved his guilt on the charge of possession of child pornography beyond a reasonable doubt. The Court of Appeal found that the trial judge had “misstated the current law” on weighing circumstantial evidence and that the verdict was unreasonable. The conviction was set aside and an acquittal entered. The main issues for determination in this appeal were whether the Court of Appeal erred in finding a legal error in the trial judge’s analysis in relation to the circumstantial evidence and whether the guilty verdict was unreasonable.

HELD: Appeal allowed, conviction restored. No particular form of instruction to the jury was required where the evidence on one or more elements of the offence was entirely or primarily circumstantial. However, where proof of one or more elements of the offence depended solely or largely on circumstantial evidence, it could be helpful for the jury to receive instructions that would assist them to understand the nature of circumstantial evidence and the relationship between proof by circumstantial evidence and the requirement of proof beyond reasonable doubt. A view that inferences of innocence must be based on proven facts was no longer accepted. The issue with respect to circumstantial evidence was the range of reasonable inferences that could be drawn from it. If there were reasonable inferences other than guilt, the Crown’s evidence would not meet the standard of proof beyond a reasonable doubt. The judge did not make any legal error in relation to his assessment of the circumstantial evidence. The judge’s conclusions that a user of Villaroman’s computer knowingly downloaded pornography, and that Villaroman was knowingly in possession of the child pornography that had been saved on his computer, were reasonable. The trial judge’s reasons, read as a whole, did not contain any legal errors and his finding of guilt was reasonable. The appeal was allowed, the acquittal set aside and the case remanded to the Court of Appeal for hearing and disposition of the ss.8 and 24(2) Charter issues.