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COMPUTER CRIMES - Offences - Obscenity and pornography - Child pornography - Penalties and sentencing - Search, seizure and surveillance

Friday, August 11, 2017 @ 8:39 AM  

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Appeal by the accused, Aalami, from a conviction and sentence for possession and distribution of child pornography. The accused came to the attention of a police officer with extensive experience investigating child pornography distributed through GigaTribe, a closed peer-to-peer file sharing network. Using a covert account, the officer received three messages of a user sharing folders that contained child pornography. The officer tracked the user's Internet Protocol address to obtain the subscriber information from the relevant Internet Service Provider. Police obtained and executed a search warrant at the accused's residence. Forensic computer analysis revealed GigaTribe was installed on the computer with a single user account that matched the account identified by the investigating officer. The laptop contained readily accessible child pornography. The charges were laid in January 2012. In April 2013, an application for a stay based on a breach of the accused's s. 11(b) Charter rights was rejected. The trial judge subsequently refused an application to exclude evidence based on a breach of the accused's rights under s. 8 of the Canadian Charter of Rights and Freedoms (Charter). At trial, the accused's brother testified that he used the laptop to download child pornography while the accused slept. The trial judge rejected the evidence. The accused was convicted and received a two-year sentence comprised of one-year for possession and two years' concurrent for distribution. The accused appealed both the conviction and sentence.

HELD: Appeal dismissed. The trial judge erred in failing to provide reasons for the dismissal of the s. 11(b) Charter application. However, this was an error of law capable of being cured given the ability of the Court to explain the result to the parties. The anticipated trial completion date left an overall delay just below the 18-month presumptive ceiling. The fact that the actual completion date was significantly longer did not permit entry of a stay, as there was no evidentiary record with respect to the reasonableness of the extended period of delay. The trial judge did not have the benefit of the Supreme Court of Canada’s decision in R. v. Spencer, which found that requests for Internet subscriber information that were warrantless engaged serious privacy interests and violated s. 8 of the Charter. Balancing the relevant factors under s. 24(2) of the Charter did not favour exclusion of the evidence given the different state of the law at the time of the search and society's interest in prosecuting offences involving victimization of children. The trial judge did not err in assessing the credibility of the defence witnesses. On sentencing, no error arose from declining to stay the possession count under the Kienapple principle given the absence of a legal and factual nexus between the possession and distribution offences. Sentence: Two years’ imprisonment.

R. v. Aalami, [2017] O.J. No. 3869, Ontario Court of Appeal, G.R. Strathy C.J.O., M.L. Benotto and B. Miller JJ.A., July 26, 2017. Digest No. TLD-August72017010