R. v. Villaroman (O.O.), (2016) 486 N.R. 360 (SCC)

JudgeMcLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ.
CourtSupreme Court (Canada)
Case DateJuly 29, 2016
JurisdictionCanada (Federal)
Citations(2016), 486 N.R. 360 (SCC);2016 SCC 33

R. v. Villaroman (O.O.) (2016), 486 N.R. 360 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2016] N.R. TBEd. JL.012

Her Majesty The Queen (appellant) v. Oswald Oliver Villaroman (respondent) and Attorney General of Ontario, Attorney General of British Columbia and Criminal Lawyers' Association (Ontario) (interveners)

(36435; 2016 SCC 33; 2016 CSC 33)

Indexed As: R. v. Villaroman (O.O.)

Supreme Court of Canada

McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ.

July 29, 2016.

Summary:

While repairing the accused's laptop, a technician found child pornography and contacted the police. The police seized the computer and obtained a general warrant to search the computer image. The accused was charged with (1) possession of child pornography, (2) possession of child pornography for the purpose of transmission, making available, distribution, sale or exportation, and (3) accessing child pornography. The accused applied to exclude the evidence alleging an unreasonable search and seizure contrary to s. 8 of the Charter.

The Alberta Court of Queen's Bench, in a judgment reported (2012), 557 A.R. 1, held that the accused had not been subjected to an unreasonable search and seizure. Alternatively, had the accused's s. 8 Charter rights been infringed, the court opined that the evidence would not have been excluded under s. 24(2).

The Alberta Court of Queen's Bench, in a judgment reported (2013), 562 A.R. 105, found the accused guilty of possession of child pornography, but not guilty of the remaining two charges. The accused appealed his possession conviction.

The Alberta Court of Appeal, in a judgment reported (2015), 599 A.R. 294; 643 W.A.C. 294, allowed the appeal and substituted an acquittal. The court held that the trial judge misstated the current law on weighing circumstantial evidence and that the verdict was unreasaonable. The Crown appealed.

The Supreme Court of Canada allowed the appeal and remitted the matter to the Court of Appeal to deal with the Charter issues that were not decided respecting the search of the computer.

Criminal Law - Topic 575.1

Sexual offences, public morals and disorderly conduct - Public morals - Obscenity - Possession of child pornography - While repairing the accused's non-password protected laptop computer, a technician found child pornography and contacted the police, who seized the computer under a general warrant and searched its contents - The accused was charged with, inter alia, possession of child pornography - The accused admitted that files on his computer contained child pornography (downloaded using the Limewire program), but argued that the Crown failed to prove beyond a reasonable doubt that he had knowledge and control of the child pornography - The trial judge held that possession of child pornography required "possession of the underlying data files, and not just cached information that might appear on a computer's hard drive from viewing information from remote locations. The latter would not be sufficient to show that he had the level of control necessary to prove possession, although it might support a finding of accessing" - The accused was found guilty of possession of child pornography - The downloaded child pornography was found in manually created folders - It was not inadvertently downloaded - The files were opened and viewed manually - The trial judge was satisfied beyond a reasonable doubt that the accused knew that there was child pornography on his computer - The Alberta Court of Appeal substituted an acquittal where "on this skimpy evidence, a properly-instructed jury could not reasonably and judicially find that the [accused] put the child pornography on the computer or knew it was there" - The court stated, inter alia, that "If there had been evidence that only the three people lived in the residence, and that the computer never left the home, we might have had less concern. Had there been that evidence and also further evidence that other persons did not come and use the computer, nor use the room where it was located, probably we would not interfere with the conviction. Other possibilities would then be too remote. But there is no such evidence" - The Supreme Court of Canada allowed the Crown's appeal - The trial judge's finding that the accused knew there was child pornography on his computer was reasonable - The court stated that "While the accused need not lead evidence to show that another person had such access to his laptop, based on the evidence and lack of evidence before the court, it is speculative to consider whether another person had such an opportunity, let alone to assume that [the accused] would be ignorant of the presence of the material on his computer." - The Court of Appeal erred by focussing on hypothetical alternative theories and engaging in speculation rather than determining whether the inferences drawn by the trial judge, having regard to the standard of proof, were reasonably open to him - While the Crown's case was not overwhelming, "it was reasonable for the judge to conclude that the evidence as a whole excluded all reasonable alternatives to guilt" - See paragraphs 47 to 72.

Criminal Law - Topic 5320.2

Evidence and witnesses - Inferences - From circumstantial evidence - The Supreme Court of Canada discussed inferences to be drawn from circumstantial evidence - The court stated that "I have suggested the use of the word 'reasonable' to describe the potential inferences rather than the word 'rational' ... In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts ... Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt. I agree ... that a reasonable doubt, or theory alternative to guilt, is not rendered 'speculative' by the mere fact that it arises from a lack of evidence. ... A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. When assessing circumstantial evidence, the trier of fact should consider 'other plausible theor[ies]'and 'other reasonable possibilities' which are inconsistent with guilt ... I agree ... that the Crown thus may need to negate these reasonable possibilities, but certainly does not need to 'negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused' ... 'Other plausible theories' or 'other reasonable possibilities' must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. ... the basis question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty" - See paragraphs 13 to 38.

Criminal Law - Topic 5320.2

Evidence and witnesses - Inferences - From circumstantial evidence - [See Criminal Law - Topic 575.1 ].

Counsel:

Jolaine Antonio and Jason Wuttunee, for the appellant;

Ian D. McKay and Heather Ferg, for the respondent;

Matthew Asma, for the intervener, the Attorney General of Ontario;

Written submissions only by Daniel M. Scanlan, for the intervener, the Attorney General of British Columbia;

Sharon E. Lavine and Naomi M. Lutes, for the intervener, the Criminal Lawyers' Association (Ontario).

Solicitors of Record:

Attorney General of Alberta, Calgary, Alberta, for the appellant;

Evans Fagan Rice McKay, Calgary, Alberta, for the respondent;

Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;

Attorney General of British Columbia, Victoria, British Columbia, for the intervener, the Attorney General of British Columbia;

Greenspan Humphrey Lavine, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association (Ontario).

This appeal was heard on March 21, 2016, before McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ., of the Supreme Court of Canada.

On July 29, 2016, Cromwell, J., delivered the following judgment in both official languages for the Court.

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1066 practice notes
  • R. v. Villaroman, [2016] 1 SCR 1000
    • Canada
    • Supreme Court (Canada)
    • July 29, 2016
    ...data-vids="">14 other sources , one News SUPREME COURT OF CANADA Citation: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 Appeal heard: March 21, 2016 Judgment rendered: July 29, 2016 Docket: 36435 Between: Her Majesty The Queen Appellant and Oswald Oliver Villaroman Respondent - a......
  • Morasse v. Nadeau‑Dubois, 2016 SCC 44
    • Canada
    • Supreme Court (Canada)
    • October 27, 2016
    ...79; College of Optometrists (Ont.) v. SHS Optical Ltd., 2008 ONCA 685, 241 O.A.C. 225; Estrada v. Young, 2005 QCCA 493; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1001; Re Tilco Plastics Ltd. v. Skurjat, [1966] 2 O.R. 547, aff’d [1967] 2 C.C.C. 196, leave to appeal refused, [1966] S.C.R......
  • R. v. Kruk, 2024 SCC 7
    • Canada
    • Supreme Court (Canada)
    • March 8, 2024
    ...68 C.C.C. (3d) 146 ; R. v. S. (W.D.), [1994] 3 S.C.R. 521 ; R. v. Avetysan, 2000 SCC 56 , [2000] 2 S.C.R. 745 ; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 ; R. v. Esquivel‑Benitez, 2020 ONCA 160 , 61 C.R. (7th) 326 ; Wild v. The Queen, [1971] S.C.R. 101 ; Rousseau v. ......
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    • Court of Appeal (Alberta)
    • May 12, 2023
    ...that, it was found in the car. No evidence was called to show when or how the card came to be there”). 49 The Queen v. Villaroman, 2016 SCC 33, ¶¶ 18, 22 & 26-31; [2016] 1 S.C.R. 1000, 1011 & 1014-17 (“It is now settled that no particular form of instruction ......
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1029 cases
  • R. v. Kruk, 2024 SCC 7
    • Canada
    • Supreme Court (Canada)
    • March 8, 2024
    ...68 C.C.C. (3d) 146 ; R. v. S. (W.D.), [1994] 3 S.C.R. 521 ; R. v. Avetysan, 2000 SCC 56 , [2000] 2 S.C.R. 745 ; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 ; R. v. Esquivel‑Benitez, 2020 ONCA 160 , 61 C.R. (7th) 326 ; Wild v. The Queen, [1971] S.C.R. 101 ; Rousseau v. ......
  • Morasse v. Nadeau‑Dubois, 2016 SCC 44
    • Canada
    • Supreme Court (Canada)
    • October 27, 2016
    ...79; College of Optometrists (Ont.) v. SHS Optical Ltd., 2008 ONCA 685, 241 O.A.C. 225; Estrada v. Young, 2005 QCCA 493; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1001; Re Tilco Plastics Ltd. v. Skurjat, [1966] 2 O.R. 547, aff’d [1967] 2 C.C.C. 196, leave to appeal refused, [1966] S.C.R......
  • R. v. Villaroman, [2016] 1 SCR 1000
    • Canada
    • Supreme Court (Canada)
    • July 29, 2016
    ...data-vids="">14 other sources , one News SUPREME COURT OF CANADA Citation: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 Appeal heard: March 21, 2016 Judgment rendered: July 29, 2016 Docket: 36435 Between: Her Majesty The Queen Appellant and Oswald Oliver Villaroman Respondent - a......
  • R v Kruk,
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    • Supreme Court (Canada)
    • March 8, 2024
    ...68 C.C.C. (3d) 146 ; R. v. S. (W.D.), [1994] 3 S.C.R. 521 ; R. v. Avetysan, 2000 SCC 56 , [2000] 2 S.C.R. 745 ; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 ; R. v. Esquivel-Benitez, 2020 ONCA 160 , 61 C.R. (7th) 326 ; Wild v. The Queen, [1971] S.C.R. 101 ; Rousseau v. The Que......
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34 firm's commentaries
  • ONTARIO COURT OF APPEAL SUMMARIES (JUNE 19 – JUNE 23, 2017)
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    • LexBlog Canada
    • June 23, 2017
    ...J. Flenning, for the appellant Jack J. Corelli and J. Neander, for the respondent Keywords: Criminal Law, Fraud, R. v. Villaroman, 2016 SCC 33, Corbett Application, R. v. Bernard, 2013 ONCA 371, Bad Character Evidence R. v Codina, 2017 ONCA 527 [Strathy C.J.O., Benotto and Miller JJ.A.] Cou......
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    • April 2, 2020
    ...v. Sinclair, 2011 SCC 40, Corbett v. The Queen, [1975] 2 S.C.R. 275, R. v. Wu, 2017 ONCA 620, R. v. Beaudry, 2007 SCC 5, R. v. Villaroman, 2016 SCC 33, R. v. Smith, 2016 ONCA 25, R. v. Morin, [1988] 2 S.C.R. 345, Côté v. The King (1941), 77 C.C.C. 75 (S.C.C.), R. v. Bagshaw, [1972] S.C.R. 2......
  • Ontario Court Of Appeal Summaries (July 8 – 12, 2019)
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    • July 23, 2019
    ...(3d) 742; R. v. Labelle, 2016 ONCA 110; R. v. O.N., 2017 ONCA 923; R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.); R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000; R. v. Lohrer, 2004 SCC 80 v. Bhagwandat , 2019 ONCA 589 Keywords: Appeal Book Endorsement, Mental Disorder, Unequivocal......
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    ...v. Bacon, 2010 BCCA 135, R. v. Kitaitchik, (2002), 166 C.C.C. (3d) 14 (Ont. C.A.), R. v. Storrey, [1990] 1 S.C.R. 241, R. v. Villaroman, 2016 SCC 33, R. v. DaCosta, 2017 ONCA 588, R. v. Pannu, 2015 ONCA 677, 127 O.R. (3d) 545, leave to appeal ref'd [2015] S.C.C.A. No. 478 R. v. K., 2020 ONC......
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    • Irwin Books The Anatomy of Criminal Procedure. A Visual Guide to the Law Post-trial matters Special Post-conviction Procedures
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    ...R v Vézina, [1986] 1 SCR 2 .............................................................282, 284, 286–87 R v Villaroman, 2016 SCC 33 ............................................................................ 327 R v Vu, 2013 SCC 60 ...............................................................
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    ...R v JB , 2019 ONCA 591, where failures on the part of the trial judge in exhorting the jury were found to be an error. 58 R v Villaroman , 2016 SCC 33. Note that the Supreme Court there decided the court of appeal had wrongly found the trial judge to make such an error. 59 R v CAM , 2017 MB......
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    ...559 R v Villaroman, 2012 ABQB 630, 557 AR 1........................................................ 225 R v Villaroman, 2016 SCC 33, [2016] 1 SCR 1000 ............................................. 575 R v Villaroman, 2018 ABCA 220, 363 CCC (3d) 141 ................................... 88, 22......
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    ...457 R v Van der Peet, [1996] 2 SCR 507.................................................... 385, 395, 438, 619 R v Villaroman, 2016 SCC 33 .................................................................................... 459 R v Villatoro, 2002 BCPC 431 .........................................
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