R. v. Villaroman (O.O.), (2013) 562 A.R. 105 (QB)

• Judge: Yamauchi, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 12, 2013
• Citations: (2013), 562 A.R. 105 (QB);2013 ABQB 279

R. v. Villaroman (O.O.) (2013), 562 A.R. 105 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. MY.157

Her Majesty the Queen v. Oswald Oliver Villaroman

(100584283Q1; 2013 ABQB 279)

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

Alberta Court of Queen's Bench

Judicial District of Calgary

Yamauchi, J.

May 7, 2013.

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 found the accused guilty of possession of child pornography, but not guilty of the remaining two charges.

Criminal Law - Topic 575.1

Sexual offences, public morals and disorderly conduct - Public morals - Obscenity - Possession of child pornography - While repairing the accused's 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 (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 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 Alberta Court of Queen's Bench 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 court was satisfied beyond a reasonable doubt that the accused knew that he was downloading child pornography - The accused was found not guilty of making child pornography available to others, as the court was not satisfied beyond a reasonable doubt that the accused knew, or was wilfully blind, that some of the files were publically accessible through the Limewire program - The accused was also not guilty of accessing child pornography, as the court was not satisfied beyond a reasonable doubt that the accused accessed child pornography beyond that which he possessed.

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.) - [See Criminal Law - Topic 575.1 ].

Criminal Law - Topic 575.4

Sexual offences, public morals and disorderly conduct - Public morals - Obscenity - Accessing child pornography - [See Criminal Law - Topic 575.1 ].

Cases Noticed:

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 72 C.R.(6th) 208; 2010 SCC 8, refd to. [para. 25].

R. v. Morelli - see R. v. U.P.M.

R. v. Garbett (J.), 2008 ONCJ 97, affd. [2010] O.T.C. Uned. 2762; 2010 ONSC 2762, refd to. [para. 25].

R. v. Daniels (P.) (2004), 242 Nfld. & P.E.I.R. 290; 719 A.P.R. 290; 2004 NLCA 73, refd to. [para. 26].

Canada (Attorney General) v. Leamont, [2010] B.C.T.C. Uned. 1281; 2010 BCSC 1281, refd to. [para. 35].

R. v. Leask (J.R.), [2012] B.C.T.C. Uned. 186; 2012 BCSC 186, refd to. [para. 36].

R. v. L.S., [2010] O.T.C. Uned. 5585; 2010 ONSC 5585, refd to. [para. 36].

R. v. Somogyi - see R. v. L.S.

R. v. Smith (M.G.), [2011] B.C.T.C. Uned. 1826; 282 C.C.C.(3d) 494; 2011 BCSC 1826, refd to. [para. 37].

R. v. Traub (R.E.) (2008), 458 A.R. 197; 2008 ABQB 604, refd to. [para. 39].

R. v. Spencer (M.D.) (2011), 377 Sask.R. 280; 528 W.A.C. 280; 283 C.C.C.(3d) 384; 2011 SKCA 144, refd to. [para. 41].

R. v. Lamb (C.R.), [2010] B.C.T.C. Uned. 1911; 2010 BCSC 1911, refd to. [para. 41].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 43].

R. v. Latif (M.A.), [2004] O.J. No. 5891, affd. [2005] O.A.C. Uned. 342; 66 W.C.B.(2d) 327 (C.A.), refd to. [para. 45].

R. v. Mullings, [2005] O.J. No. 2962, refd to. [para. 46].

R. v. Munoz (L.), [2006] O.T.C. 112; 86 O.R.(3d) 134; 205 C.C.C.(3d) 70 (Sup. Ct.), refd to. [para. 46].

R. v. Paul, [1977] 1 S.C.R. 181; 4 N.R. 435; 27 C.C.C.(2d) 1, refd to. [para. 47].

R. v. Richer (R.J.) (1993), 141 A.R. 116; 46 W.A.C. 116; 82 C.C.C.(3d) 385 (C.A.), refd to. [para. 47].

R. v. McIver, [1965] 1 O.R. 306; [1965] 1 C.C.C. 210 (H.C.), affd. [1966] S.C.R. 254, refd to. [para. 49].

United States of America v. Huynh (2005), 202 O.A.C. 198; 200 C.C.C.(3d) 305; 66 W.C.B.(2d) 680 (C.A.), refd to. [para. 49].

R. v. Briscoe (M.E.) et al., [2010] 1 S.C.R. 411; 400 N.R. 216; 477 A.R. 86; 483 W.A.C. 86; 2010 SCC 13, refd to. [para. 75].

Counsel:

Ian D. McKay and Heather Ferg (Fagan and McKay), for the applicant/accused;

Jennifer Rees (Alberta Justice - Specialized Prosecution Technology and Internet Crime), for the respondent/Crown.

This matter was heard on March 15-16, 2011 and June 28-29, 2012, and April 12, 2013, before Yamauchi, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on May 7, 2013.