SELECTED CASE LAW
BRITISH COLUMBIA:
In 2014 BCCA 251, Mr. B appealed his conviction of possessing and distributing child pornography.
Mr. B had used file sharing programs to download and share child pornography images. At trial he argued that someone else was responsible for the images on his computer. The images were discovered by an electronics shop employee who was repairing his computer. A search of his computer resulted in the discovery of the images hidden on his computer and evidence of various file sharing programs. Evidence showed Mr. B had downloaded the images at the same time as he was using an email account or online bank account affiliated with his name. There was no evidence anyone tampered with the files. Mr. B argued that he had been in Ontario when he shared the files and was not resident in British Columbia. However, the court argued that he had made the images available in BC.
The court found that the internet was not defined by provincial boundaries. The appeal court agreed with the trial judge’s finding stating:
In my view, reasonable persons generally accept that file-sharing programs operate across provincial boundaries. Further, such programs are well-known to the courts given their frequent appearance in cases concerning child pornography and intellectual property and courts, in turn, have accepted that files shared by one user of a specific file-sharing program are available to another user of that program regard-less of geographic location.[1]
On appeal, Mr. B argued that the trial judge has misapprehended the evidence about the case, but the appeal court disagreed. His appeal was dismissed.
He was sentenced to a suspended sentence, two years’ probation, and additional orders including a DNA order and registration as a sex offender. Mr. B requested a stay of his registration as a sex offender while he appealed his conviction. On appeal he argued that his job in the military required him to be deployable anywhere in the world and the reporting requirements of the sex offender registration would be too difficult to comply with because some of the locations he travelled to were to be kept secret. The appeal court noted the sex offender registration was mandatory and could not be stayed. It dismissed his appeal.
Also see: 2013 BCCA 164 (Appeal).
[1] 2014 BCCA 251 at para 19.
Criminal Offence(s): Child Pornography Offences