R. v. Spencer (M.D.), (2015) 469 Sask.R. 64 (QB)

Judge:R.S. Smith, J.
Court:Court of Queen's Bench for Saskatchewan
Case Date:February 26, 2015
Jurisdiction:Saskatchewan
Citations:(2015), 469 Sask.R. 64 (QB);2015 SKQB 62
 
FREE EXCERPT

R. v. Spencer (M.D.) (2015), 469 Sask.R. 64 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. MR.042

Her Majesty the Queen v. Matthew David Spencer

(2008 QBJ No. 21; 2015 SKQB 62)

Indexed As: R. v. Spencer (M.D.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

R.S. Smith, J.

February 26, 2015.

Summary:

The accused was charged with possession of child pornography and making available child pornography. The accused brought an application, alleging several violations of his rights under the Charter.

The Saskatchewan Court of Queen's Bench, in a decision reported at 361 Sask.R. 1, dismissed the application. The accused was found guilty of possession of child pornography and not guilty of making available child pornography. The accused appealed the conviction. The Crown appealed the acquittal.

The Saskatchewan Court of Appeal, in a decision reported at 377 Sask.R. 280; 528 W.A.C. 280, dismissed the accused's appeal, allowed the Crown's appeal and ordered a new trial. The accused appealed.

The Supreme Court of Canada, in a decision reported at 458 N.R. 249; 438 Sask.R. 230; 608 W.A.C. 230, dismissed the appeal, affirmed the conviction on the possession count and upheld the Court of Appeal's order for a new trial on the making available count.

The Saskatchewan Court of Queen's Bench found the accused guilty.

Civil Rights - Topic 3128

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right of accused to obtain information or evidence - [See Civil Rights - Topic 3133 ].

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - The accused was charged with, inter alia, making available child pornography - The accused was interrogated at the police station - The interrogation was recorded by audio and video - A portion of the beginning of the interrogation was inadvertently not recorded - That lost evidence was the basis for the accused's application under s. 7 of the Charter (failure to meet disclosure obligations) - The Saskatchewan Court of Queen's Bench found no breach of s. 7 - The officer was taking notes at the interrogation - The amount of interaction lost was, at most, one minute - That one minute at the beginning was filled with the officer outlining the charges and reading the accused his rights - Even if the accused's concerns with respect to what was discussed during that minute were valid, there would be no reason to trigger a remedy under s. 7 - What was discussed was collateral, of no consequence and in no way negatively impacted the accused's ability to put forward a full and complete defence - See paragraphs 25 to 33.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - In 2007, the accused was charged with possession of child pornography and making available child pornography - In June 2010, the accused was convicted of possession of child pornography and sentenced to nine months' imprisonment - The accused was found not guilty of making available child pornography - The accused appealed the conviction - The Crown appealed the acquittal - The Court of Appeal dismissed the accused's appeal, allowed the Crown's appeal and ordered a new trial - The accused appealed - The Supreme Court of Canada dismissed the appeal, affirmed the conviction on the possession count and upheld the Court of Appeal's order for a new trial on the making available count - In 2015, the new trial proceeded for the charge of making available child pornography - The accused moved for a declaration that his right to be tried within a reasonable time under s. 11(b) of the Charter was violated - The Saskatchewan Court of Queen's Bench accepted that the seven and a half year journey had been "arduous and wearing" on the accused but found no breach of s. 11(b) - A step-by-step review of the proceedings reflected no conduct on the part of the Crown or institutional delay that would warrant the imposition of a stay by reason of a violation of s. 11(b) - See paragraphs 11 to 24.

Criminal Law - Topic 575.2

Sexual offences, public morals and disorderly conduct - Public morals - Obscenity - Distribution of child pornography (incl. making available, possession for the purpose of distribution or sale, etc.) - The accused was charged with, inter alia, making available child pornography - The accused conceded all the elements of the offence under s. 163.1(3) of the Criminal Code except the mens rea - He denied the allegation that he had the intention to make child pornography available to others - The accused used the computer program LimeWire to download pornography - He claimed he did not have a full understanding of the functionality of LimeWire, i.e., while he understood how to download pornography for personal use, he did not understand that others could access the files downloaded through LimeWire - The Saskatchewan Court of Queen's Bench found the accused guilty - The court could not say, beyond a reasonable doubt, that the accused consciously made available child pornography to others - However, the court had no hesitation in concluding that the accused was wilfully blind to the fact of the file-sharing functionality of LimeWire - See paragraphs 34 to 62.

Criminal Law - Topic 584

Sexual offences, public morals and disorderly conduct - Public morals - Obscenity (incl. child pornography) - Mens rea or intention - [See Criminal Law - Topic 575.2 ].

Cases Noticed:

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81, refd to. [para. 11].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 11].

R. v. Godin (M.), [2009] 2 S.C.R. 3; 389 N.R. 1; 252 O.A.C. 377; 2009 SCC 26, refd to. [para. 11].

R. v. Potvin (R.), [1993] 2 S.C.R. 880; 155 N.R. 241; 66 O.A.C. 81, refd to. [para. 22].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 59].

Counsel:

Michael A. Segu, for the Crown;

Matthew D. Spencer, appearing on his own behalf.

This case was heard by R.S. Smith, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on February 26, 2015.

To continue reading

FREE SIGN UP