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COMPUTER CRIMES - Offences - Obscenity and pornography - Child pornography - Mens rea - Procedure - Appeals

Friday, July 21, 2017 @ 8:17 AM  


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Appeal by the accused from a conviction for making child pornography available. The accused did not dispute that he installed the LimeWire peer-to-peer file sharing program on his computer and used it to download child pornography picture and video files during a three-week period in 2007. At issue was whether the accused knew or was wilfully blind to the fact that the use of LimeWire made child pornography available to others. The accused testified that he did not have a full understanding of the manner in which LimeWire functioned. He denied any knowledge of making child pornography available to others. The Crown took the position the accused's longtime use of LimeWire and the program's user interface contradicted his assertion he was unaware of the file-sharing aspects of the program. An initial trial resulted in an appeal to the Supreme Court of Canada, following which a new trial was ordered. A second trial resulted in a conviction in 2015. The trial judge refused Charter relief on the basis of unreasonable delay. The judge found that there was a reasonable doubt that the accused consciously made child pornography to others, but concluded a conviction was warranted based on the accused's wilful blindness arising from use of LimeWire. The accused appealed.

HELD: Appeal allowed. The trial judge’s reasons for conviction were insufficient to permit meaningful appellate review. Where the only issue was intention, and the conviction turned on the sole issue of wilful blindness, it was incumbent upon the trial judge to offer a more fulsome explanation for the conclusion reached. The lack of sufficient reasons failed to identify what aspects of the accused's evidence were credible, made it unclear whether the correct test for wilful blindness was applied, and failed to identify the evidence supporting the conclusion the accused was wilfully blind. Moreover, the trial judge failed to articulate how critical discrepancies between the accused's video interview and the transcript thereof were resolved. The trial judge's reasons failed to demonstrate a link between the evidence and the verdict. Although a new trial was the appropriate remedy, a third trial would constitute an abuse of process given the lengthy proceedings to date and the offender's completion of his sentence without re-offending. A stay of proceedings was entered.

R. v. Spencer, [2017] S.J. No. 282, Saskatchewan Court of Appeal, R.G. Richards C.J.S., G.R. Jackson and P.A. Whitmore JJ.A., June 28, 2017. Digest No. TLD-July172017010