R. v. Varty (D.), 2015 SKQB 199

• Judge: Schwann, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: July 03, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKQB 199;(2015), 479 Sask.R. 17 (QB)

R. v. Varty (D.) (2015), 479 Sask.R. 17 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JL.064

Her Majesty the Queen v. Doug Varty (accused)

(2013 QBNJ No. 54; 2015 SKQB 199)

Indexed As: R. v. Varty (D.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Schwann, J.

July 3, 2015.

Summary:

The accused was charged with possession of child pornography (Criminal Code, s. 163.1(4)), accessing child pornography (s. 163.1(4.1)), and making available child pornography (s. 163.1(3)). He applied for the exclusion of evidence pursuant to s. 8 of the Charter, arguing that his s. 8 Charter rights were violated because (1) the information to obtain the search warrant was not sufficiently current or location-specific to warrant authorization of the search warrant; (2) the police were required to obtain a second warrant to forensically examine any computer seized pursuant to the first warrant; and (3) the police obtained his internet subscriber information by sending a law enforcement request (LER) to his internet service provider (ISP).

The Saskatchewan Court of Queen's Bench, in a decision reported at (2015), 479 Sask.R. 1, held that the accused s. 8 Charter rights were violated because the LER did not authorize the disclosure of information from the ISP. However, the court declined to exclude the evidence.

The Saskatchewan Court of Queen's Bench found the accused guilty of all three offences. The court entered a conditional stay on the accessing child pornography charge pursuant to the Kienapple principle.

Criminal Law - Topic 34

General principles - Mens rea or intention - Recklessness - [See Criminal Law - Topic 575.2 ].

Criminal Law - Topic 39.4

General principles - Mens rea or intention - Doctrine of wilful blindness - [See Criminal Law - Topic 575.2 ].

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.) - Varty was charged with, inter alia, making available child pornography - He admitted to downloading child pornography using a file sharing program (Ares), but argued that his actions displayed a clear lack of intent to share files based on, inter alia, the fact that he had taken active measures to prevent file sharing by deleting files or blocking users - The Saskatchewan Court of Queen's Bench found Varty guilty - In the context of a file sharing program, mens rea could be made out on the basis of recklessness or wilful blindness on the part of the user if there was evidence that the program had actually made child pornography files available to others or if the user had a suspicion that it had done so but chose not to determine whether his suspicion was true - Varty possessed a general awareness that downloaded files could be made available to others through Ares - His actions amounted to a blatant recklessness in that he was conscious of the risk posed but proceeded in the face of it - He was also wilfully blind to his actions in that he made no inquiries to determine whether his efforts to block file sharing were effective - See paragraphs 39 to 65.

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 ].

Counsel:

Michael A. Segu, for the Crown;

John D. (Jack) Hillson, for the accused.

This matter was heard before Schwann, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on July 3, 2015.