Appeal from conviction on charges of child pornography. Accused left his non password protected computer at a repair shop. Technician found some child pornography in a music-sharing folder. Issue regarding possession.
Held: Appeal allowed, acquittal.
The accused is entitled to rely upon an inference or hypothesis leading to an innocent explanation, based upon the lack of evidence presented by the Crown. To hold otherwise would be to place a burden on the accused to prove something. This was a very common model of a laptop that was not password protected. There was no evidence as to where the computer was kept, who lived the accused, whether others had access to the computer, or whether or not an ordinary user of the computer would be bound to notice the child pornography. Crown not able to prove possession.
I. McKay, H. Ferg – Defence Counsel