CITATION: R. v. Ezard, 2011 ONCA 545

DATE: 20110805

DOCKET: C52066

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Feldman and LaForme JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Scott Ezard

Appellant

John Hale and Anne-Marie McElroy, for the appellant

Leslie Paine, for the respondent

Heard: June 7, 2011

On appeal from conviction entered by Justice Michel Z. Charbonneau of the Superior Court of Justice, sitting without a jury, dated December 21, 2009.

Feldman J.A:

[1]        The appellant was convicted of possession of child pornography. Videos of child pornography were found on his computer and in areas that had been erased from the computer but remained available to forensic examination. The appellant’s wife alerted the police. Both he and his wife had access to the computer and there was no evidence identifying who had downloaded the child pornography. In their testimony, the appellant and his wife both denied being responsible for the presence of the material on the computer, and each pointed the finger at the other. The appellant appeals his conviction on the basis that the reasons of the trial judge are inadequate to explain why his testimony was rejected and his wife’s testimony was accepted.

FACTS

[2]        At the time of the charges in June, 2008, the appellant was a 35 year old registered nurse. He worked as a surgical nurse in the Ottawa General Hospital, and lived with his wife in Cornwall Ontario, about an hour’s drive away. Wendy Ezard did not work.

[3]        In February, 2008, Mrs. Ezard suspected that her husband was having an affair and decided to investigate his computer for clues. While she found no evidence of an affair, she testified that she found evidence that her husband had visited computer sites that contained incest, bestiality and child pornography. She and her husband had previously viewed adult pornography together, but she refused to continue at one point and it resulted in some marriage counselling.

[4]        She recorded the sites she found in a notebook. She continued to do this through the end of May when she decided to go to the police. She first used a pretence that she was there for a friend, but soon acknowledged that she was talking about her own husband. She showed the officer her notebook and gave him copies of it. She also told him that she had been investigating pills that her husband stole from the hospital.

[5]        Mrs. Ezard described what she did in her testimony:

Q.        You indicated in your earlier evidence that around the middle of February you started, of 2008, you started this investigation. What steps did you take with respect to the notebook when that was …

A.        Every time – uhm – like I said, my husband either went to work or went to visit his parents or even went to like Blockbuster’s or whatnot, I’d go on his computer and check for the sites and write down all the sites as I saw them printed on the screen and I would go through – uhm …

…

Q.        Okay. And can you just give the court a general idea of what types of things she wrote down?

A.        In general, it was – uhh – for example, the incest. His grandfather had sex with granddaughter. For the bestiality, it was – uhm – girl has sex on phone or – yeah girl has sex while on phone and it was a dog. So with all incest, bestiality, incest, bestiality and child porn. It would be preteen.net, - uhm – webs youngest.com. Uhm – he would purposely in the Google search bar, it was amateur porn.com that he looked for that.

Q.        Okay.

A.        So, it was …

Q.        So it was recording those kinds of things?

A.        Yes.

Q.        Did you record anything besides the titles and search terms that you found?

A.        No, I did not want to open up what the sites actually were. There was only one that I actually – there’s actually only one site that I saw of all this book and that turned my stomach and I didn’t want to see anymore.

[6]        She later described in more detail how she conducted the computer investigation and exactly what she found and how she found it in the following portion of her examination-in-chief:

A.        Uhm – as I said, I would, as soon as I got an opportunity to get on his computer, - uhm – I would try to do that and – uh – because I would go to bed, like, you know, 11 – 12 o’clock at night or whatever and he would be on his computer till, you know, 2, 3, 4 o’clock. I’m not sure because I was fast asleep. So whenever he went away – went off to work, I would that morning after he’s been on all night, I would go and check to see what I could find. See what I can find out what he was up to all night, because he wasn’t there with me so, and that’s what I used to do.

Q.        Okay. And what kind of things did you find?

A.        Uhm – uh – a 16 year old brother doing his – sorry, let me rephrase, a 17 year brother doing a 16-year-old sister, bestiality, you know, girl on phone having sex with dog. Incest, bestiality, like I said, child porn it would be, you know, 16 year old having sex with an orgy with many of people in a hotel room or it was just …

Q.        And you indicated earlier that you only look at one of these things, so …

A.        Yes.

Q.        … what is the source of these descriptions?

A.        Our – some of it is, we had a program on the computer called LimeWire, and it was connected to my laptop as well, because we both share the same computer program, so when he was looking at a particular site it would show up on my computer, and I could see, not the pictures, but it would tell me like the description of the site, like you know, whatever the site may be, you know, web’s youngest.com they show it and that’s how come I just – programs like that LimeWire and that.

Q.        Okay. And how were your computers connected?

A.        We had a internet – uh – wireless router and – because I had a laptop. So that’s how our computers connected were through the wireless router.

Q.        Okay. And the – please tell us how these descriptors would come up on your computer from your husband’s?

A.        I – like I’m not a technical person, but being that we both – both computers shared iTunes or iPod iTunes and we both – I downloaded that other website, LimeWire, onto my computer as well for music that I was trying to look for particular music, that it with the router I was able to see. I don’t know. I’d have to get a technical person in but that I don’t know but I was able to see it.

Q.        Okay. Did you have your copy of the program open?

A.        yes.

Q.        Okay. This happen when you did not, like if you were working on something else on your computer?

A.        No, I had to physically open up my program in order to see what he was doing on his.

[7]        Mrs. Ezard went to the police on May 27, 2008. Based on an investigation of the sites listed in her notebook and on her story of how she discovered this material on the computer, the police obtained a search warrant to search the computer and to search other areas of the house for the pills she had referred to. They executed the warrant on June 3, during the day when the appellant was at work, but while Mrs. Ezard was at home.

[8]        The forensic computer expert, Detective Coakley examined the desktop computer and found some child pornography on it. Mrs. Ezard asked the police to check her laptop to see if anything was on it. Another officer, Constable Spence, checked her computer and found nothing. It was not seized. Mrs. Ezard also directed the police to the master bedroom and pointed out several pills that she suggested her husband had taken from the hospital where he worked. The police seized the desktop computer, an external hard-drive and the pills. They checked on site some small memory sticks beside the main computer but these contained no child pornography.

[9]        When the appellant arrived home from work at around 8 p.m. that evening, he was arrested.

[10]         Detective Coakley conducted a forensic investigation of the hard drive in the appellant’s home computer as well as the external hard drive. He prepared a report that was filed as an exhibit at trial. He also testified as an expert witness at the trial. His examination disclosed thousands of images, none of which was child pornography. It also disclosed 8312 movies. Of those, between 137 and 149 were identified or classified as child pornography. All but six of the child pornography movies that were found were in unallocated space, that is, they had been deleted or erased, but remained retrievable by a forensic examination. These were not dated. The six that had not been deleted were dated May 31, June 1 and June 2, 2008, after Mrs. Ezard had gone to the police.

[11]         The appellant’s defence was that either 1) the child pornography downloaded automatically as he had been experiencing pop-ups, he had seen what might have been child pornography and had taken the computer in to be fixed as a result, or 2) his wife had done it out of malice. He testified and denied the offence. He also called three friends or former friends who gave some evidence either against Mrs. Ezard’s character or in support of his character.

[12]         In his reasons for judgment, the trial judge referred to the charge and the law, the execution of the search warrant by the police, the expert evidence of Detective Coakley and his findings and conclusions which the trial judge accepted, the evidence of Mrs. Ezard about her discovery of the pornographic material, the keeping of the notebook, her struggle about what to do since her husband was her sole source of financial support, her decision to go to the police, the evidence of the appellant denying any involvement with child pornography and his two theories of how it could have come onto his computer. After referring to the burden of proof and the formulation from W.(D.), the trial judge made the following finding regarding the guilt of the accused and the credibility of the two main witnesses, the appellant and his wife:

My review of the whole of the evidence convinces me, beyond a reasonable doubt, that Mr. Ezard is guilty as charged.

I find that Mrs. Ezard is a credible witness. It is clear that the marriage of Mr. and Mrs. Ezard had been in difficulty for several years. Mrs. Ezard, when she first started secretly examining the computer, believed or was suspicious that Mr. Ezard was cheating on her and I have no hesitation in believing that if she had found that he was cheating that she would have been able to do something about it.

However, I find that she never found proof of cheating, but rather found proof that Mr. Ezard was seriously involved with all types of pornography, being child, adult, bestiality. I find she was upset by this situation and it caused her substantial anguish to have to go to the police. She had nothing to gain, in fact, in going to the police, rather she had much to lose because Mr. Ezard had a very good job and had been the sole breadwinner for the duration of the marriage.

In the context of the whole evidence, there is really no evidence which supports the possibility, suggested by Mr. Ezard, that it is Mrs. Ezard that put this child pornography on the computer to get at him.

I find that Mr. Ezard was the main user of the computer. I accept the evidence of Det. Coakley concerning the very large quantity of child pornography material downloaded and/or viewed or previewed. The fact it was downloaded as far back as 2007 and the fact that no malware was responsible or outside agent could explain the presence of the child pornography on the computer.

I find that Mr. Ezard had actual control of the child pornography found on the computer.

His evidence viewed in the context of the overall evidence does not raise a reasonable doubt about his guilt. The possibilities that the child pornography could have been uploaded to the computer from another computer as the result of malware must be rejected in view of Det. Coakley’s evidence.

Similarly, there is no evidence whatsoever that supports the proposition that Mrs. Ezard downloaded the child pornography in question.

The Crown has therefore established Mr. Ezard’s guilt beyond a reasonable doubt and I therefore find him guilty.

ISSUES

[13]         The appellant raises two central issues:

            (1)       Were the reasons for judgment inadequate in that the trial judge did not adequately explain why he rejected the evidence of the appellant and accepted the evidence of the appellant’s estranged wife?

            (2)       Did the trial judge fail to analyze credibility in accordance with R. v. W.(D)., insofar as he failed to assess the appellant’s evidence in the context of all the evidence?

[14]         As these issues are interrelated, I will deal with them together.

LAW AND ANALYSIS

[15]         In R. v. Dinardo, [2008] 1 S.C.R. 788, a decision of Charron J., the Supreme Court of Canada again addressed how a Court of Appeal should assess the sufficiency of a trial judge’s reasons, especially where credibility is in issue, at paras 24-27:

In R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, this Court confirmed that courts have a duty to give reasons. Reasons serve many purposes; in particular, they explain the court’s disposition of the case and facilitate appellate review of findings made at trial. The content of the duty will, of course, depend upon the exigencies of the case. As this Court has noted, “the requirement of reasons is tied to their purpose and the purpose varies with the context” (Sheppard, at para. 24).

Sheppard instructs appeal courts to adopt a functional approach to reviewing the sufficiency of reasons (para. 55). The inquiry should not be conducted in the abstract, but should be directed at whether the reasons respond to the case’s live issues, having regard to the evidence as a whole and the submissions of counsel (R. v. D. (J.J.R.) (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 32). An appeal based on insufficient reasons will only be allowed where the trial judge’s reasons are so deficient that they foreclose meaningful appellate review: Sheppard, at para. 25.

At the trial level, reasons “justify and explain the result” (Sheppard, at para. 24). Where a case turns largely on determination of credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal. Nevertheless, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error (see R. v. Braich, [2002] 1 S.C.R. 903, 2002 SCC 27, at para. 23). As this Court noted in R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17, the accused is entitled to know “why the trial judge is left with no reasonable doubt”:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.

This does not mean that a court of appeal can abdicate its responsibility for reviewing the record to see whether the findings of fact are reasonably available. Moreover, where the charge is a serious one and where, as here, the evidence of a child contradicts the denial of an adult, an accused is entitled to know why the trial judge is left with no reasonable doubt. [paras. 20-21]

Reasons “acquire particular importance” where the trial judge must “resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge’s conclusion is apparent from the record” (Sheppard, at para. 55). Here, the complainant’s evidence was not only confused, but contradicted as well by the accused. As I will now explain, it is my view that the trial judge fell into error by failing to explain how he reconciled the inconsistencies in the complainant’s testimony on the issue of whether she invented the allegations. I also conclude that the trial judge’s failure to provide such an explanation prejudiced the accused’s legal right to an appeal.

[16]         And at para 35, she stated that “[t]he words of this court bear repeating: [The] accused is entitled to know why the trial judge is left with no reasonable doubt. (Gagnon, at para. 21)”

[17]         In this case, the presence of child pornography on the computer, both deleted and undeleted was admitted. The live issue was how it got there and who was responsible for its presence. On another record, the reasons that were delivered by the trial judge may well have been sufficient to meet the tests and obligations set out by the Supreme Court of Canada. Furthermore, the trial judge was entitled to accept the evidence of any witness and reject the evidence of any other.

[18]         However, on the record before him, which contained numerous contradictions, the trial judge failed to adequately explain how he reconciled the important ones in order to conclude that he believed the wife and disbelieved the husband. Furthermore, from his reasons for judgment and sentence, it appears that the trial judge misapprehended certain of the evidence and that his misapprehensions may well have affected his assessment.

[19]         I will use three examples to illustrate the first problem. The first example is Mrs. Ezard’s contradictory account of how and when she investigated her husband’s computer.  She first said that it was when he went out, whether to work, or to visit his parents or to go to Blockbuster, that she would go on his computer, check for sites visited in the Google search bar, such as “amateur porn.com”, and write them down. She said that after she went to bed at 11 p.m., he would be on his computer until two, three, or four in the morning. Then in the morning, she would go on his computer and see what she could find.

[20]         She wrote down descriptions in her notebook but except for one, she did not view the actual content of the sites. When asked what was the source of the descriptions, she said that they had a program called LimeWire, that it was connected to her laptop as well as to his computer, that they shared the same computer program, “so when he was looking at a particular site it would show up on my computer, and I could see, not the pictures, but it would tell me like the description of the site, like, you know, whatever the site may be, you know…” When asked how the two computers were connected, she said it was by wireless router. She further explained that she had to open her program in order to see what he was doing on his.

[21]          In cross-examination, Mrs. Ezard was asked whether when both of them were on LimeWire, what she saw on her computer should also have been on the appellant’s. She said more than likely but she wasn’t looking at his computer. She also confirmed again that she only opened one site. She was asked if she remembered her video police statement and she said she did. She said that although she physically opened only one site, when she was sitting in her lazyboy chair she would bend forward “to kind of see what he was seeing and I got little glimpses or I’d go to the washroom.” She suggested that he would try to angle his screen so that she couldn’t see it.

[22]         Finally, following Mrs. Ezard’s testimony, Detective Coakley was recalled for further expert evidence. He was asked in cross-examination whether two people in the same home on two computers but on the same wireless network could see the mirror image of what was on the other’s computer. Although he couched his answers in examples and other methodologies, he said that using the LimeWire program, one could not. Nor was there any evidence of any child pornography found on Mrs. Ezard’s laptop.

[23]         To summarize, Mrs. Ezard gave conflicting versions of both how and when she investigated the child porn sites she says she found on her husband’s computer. She claimed that he was going to sites using the LimeWire program that was also on her computer and that she could see what he was doing while he was doing it. The expert said that was not possible. She first claimed that he downloaded child porn after she went to bed and that she searched his computer during the day when he wasn’t home.  Later she said she saw what was on his computer while she followed on her computer using LimeWire  Then she said she saw him accessing sites while she was in her lazyboy chair.

[24]         The second example relates to the trial judge’s failure to consider evidence that was capable of supporting the appellant’s position. The appellant’s defence in part was that given that child porn was found on his computer, his wife was such a vindictive woman that she must have done it to frame him.  This motive was accompanied by unlimited opportunity on the part of Mrs. Ezard. Although the trial judge acknowledged that this was one of the appellant’s alternative explanations for the presence of the offending material, he concluded that he believed Mrs. Ezard without explaining how he resolved these discrepancies in the evidence, and further concluded, without explanation, that there was no evidence to support the proposition that she was the one who did it.

[25]         In regard to the latter point, there was evidence that the user names associated with the appellant’s computer included “Wendy” (her name), as well as “mojolady”. Mrs. Ezard testified that “mojolady” was also the name of a joint e-mail account belonging to herself and her husband. Again, the trial judge makes no reference to this evidence. He does not explain why it did not raise a reasonable doubt as to whether it was Mrs. Ezard and not the appellant who was the user who downloaded the child pornography.

[26]         As a third example, , in rejecting the motive of vindictiveness suggested by the appellant, the trial judge does not refer to Mrs. Ezard’s deliberate attempts to have the appellant face charges in respect of apparent prescription sleep medication she alleged he obtained improperly from the hospital where he worked. She told the police about the prescription medication and showed them the pills when they came to execute the search warrant, explaining to the officers that there was no prescription for them. Although they seized the pills, nothing came of her allegations.[1]

[27]         The case law makes it clear that a trial judge need not refer to or deal with discrepancies in respect of every piece of contradictory evidence. However, the judge must explain how he reconciled at least some of the evidence that supported the theory of the appellant and his potential innocence, in concluding that he was satisfied of guilt beyond a reasonable doubt.

[28]         This proposition links with the application of the principle in W.(D.), raised by the appellant as the second ground of appeal. That issue also arose in Dinardo where Charron J. explained at para. 23:

What matters is that the substance of the W.(D.) instruction be respected. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt. In my view, the substantive concerns with the trial judge’s decision in this case can better be dealt with under the rubric of the sufficiency of his reasons for judgment.

[29]         I would respectfully adopt the same approach in this case. Although the trial judge stated that “[the appellant’s] evidence viewed in the context of the overall evidence does not raise a reasonable doubt about his guilt”, as I have discussed, he did not adequately explain why not. It is the insufficiency of the reasons, rather than a failure to apply W.(D.), that is the essential error in this case.

[30]         The trial judge also made a number of errors of fact based on the evidence, both in his reasons for judgment and in the reasons for sentence. In R. v. Lohrer, [2004] 3 S.C.R. 732, a decision of Binnie J., the Supreme Court of Canada endorsed Doherty J.A.’s reasoning in R. v. Morrissey (1995), 22 OR (3d) 514 (C.A.), on the issue of misapprehension of fact. In Morrissey, at p. 221, Doherty J.A., stated that:

[i]f an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then…it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice.  This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.  

[31]         The first factual error was the trial judge’s finding, in both sets of reasons, that the expert witness identified in the computer approximately 8000 pornography files. In fact, he identified 8312 movie files. Of those, between 137 and 149 were identified as child pornography (with 634 being identified as adult pornography, 551 as animal sex and 6978 as “other”).

[32]         Nor was the identification of non-child pornography relevant to the criminal conduct charged, as viewing or downloading adult pornography is not an offence. In that regard, the trial judge also referred to testimony by the expert witness that the LimeWire program was frequently used to download movies that had titles “suggestive of pornography” and that “some 1500 such titles were found.” He further noted Mrs. Ezard’s testimony that she secretly observed her husband from time to time looking at pornography on his computer.[2] It is unclear what relevance was placed by the trial judge on this evidence in his conclusion that it was the appellant who possessed the child pornography.

[33]         In R. v. Morelli, [2010] 1 S.C.R. 253, at para. 86, Fish J. suggested, in the context of considering the validity of a search warrant, that possessing a large quantity of legal adult pornography, could not be said to suggest any propensity to possess child pornography. In any event, propensity reasoning is improper except in clearly defined circumstances involving similar fact evidence.

[34]         The second factual error is in respect of what pornography Mrs.. Ezard claimed to have actually viewed.  Mrs. Ezard testified that she opened and viewed only one actual site from all the titles she found. She never described what she saw in her evidence, but Detective Carroll testified, as part of the narrative only, that Mrs. Ezard told him that she viewed an image where a young teenage girl was in a room being mounted and penetrated by a dog. In his reasons, however, the trial judge found that Mrs. Ezard viewed a movie “which she said depicted or [sic] 17 year old teenagers involved in sexual activity, some kind of an orgy scene.” In fact, this was one of the descriptive titles that Mrs. Ezard testified that she found on the computer, but she did not say that she viewed it. When the appellant’s trial counsel cross-examined Mrs. Ezard, he asked her specifically if she had seen this video, and she answered “[n]o” and said “[t]hat was the title.” Mrs. Ezard further testified that she did not know what the movie actually depicted.

[35]         The third factual error involved the contents of Mrs. Ezard’s notebook.  Much reference was made to the notebook that Mrs. Ezard made and turned over to the police. She was allowed to use the notebook for reference in giving her testimony, but it was not made an exhibit. Yet the trial judge found that “the list compiled by Mrs. Ezard reflects a lot of the same titles that were ultimately found on the computer by Detective Coakley.” It appears that the trial judge either misapprehended the evidence, or reviewed the notebook and made improper use of it in arriving at his decision, as if it had been made evidence in the case.

CONCLUSION

[36]         This court is required to take a functional approach to the trial judge’s reasons for decision in order to determine whether they respond to the live issues in the case, having regard to the record as a whole. Although a trial judge is not required to address all of the evidence and arguments, the judge must determine the live issues in a manner that explains to the accused why the judge was not left with a reasonable doubt.

[37]         In this case, the live issue was who was responsible for the child pornography found on the appellant’s computer. There was not only conflicting testimony as between the appellant and his wife, but Mrs. Ezard’s evidence contained significant internal inconsistencies as well as inconsistencies with the evidence of the expert forensic witness. Furthermore, the trial judge made a number of factual errors based on apparent misapprehensions of the evidence.

[38]         In my view, one cannot say in those circumstances that the reasons provide an adequate basis for appropriate appellate review, nor that the verdict, on a very serious charge, is a safe one. I would allow the appeal, set aside the conviction and order a new trial.

RELEASED:

“AUG -5 2011”

“KF”                                                   “K. Feldman J.A.”

                                                            “I agree D. O’Connor A.C.J.O.”

                                                            “I agree H.S. LaForme J.A.”