R. v. Cockell (B.A.),

R. v. Cockell (B.A.) (2013), 553 A.R. 91; 583 W.A.C. 91 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. MY.076

Her Majesty the Queen (respondent) v. Brian Allan Cockell (appellant)

(1203-0127-A; 2013 ABCA 112)

Indexed As: R. v. Cockell (B.A.)

Alberta Court of Appeal

Côté, Conrad and Bielby, JJ.A.

May 15, 2013.

Summary:

The accused, in a judgment reported [2012] A.R. Uned. 215, was convicted of three counts of luring by means of a computer system, two counts of sexual assault, two counts of sexual interference, one count of abduction, two counts of possession of child pornography and one count of making child pornography. The two sexual assault convictions and one luring conviction were stayed under the Kienapple principle. The offences involved two teenaged female complainants (12 and 13 years of age). The accused appealed.

The Alberta Court of Appeal allowed the appeal in part. The court set aside the sexual assault and sexual interference convictions respecting one complainant and the charges of internet luring respecting the second complainant. All other convictions were affirmed.

Criminal Law - Topic 575.1

Sexual offences, public morals and disorderly conduct - Public morals - Obscenity - Possession of child pornography - The accused was convicted of possession of child pornography on his work computer, to which three other persons had user log-in accounts and had used the computer - The accused appealed on the ground that the Crown failed to prove that the computer in which the pornographic images were found was under his control - The Alberta Court of Appeal dismissed the appeal - The Crown had to prove that child pornography was stored on a computer system under the accused's control - It was not required to prove that the accused had exclusive control - Many of the images were found in a folder that used the same user account and password as found on one of the accused's personal computers - There was other evidence linking the user name and password chosen to the accused - The court stated that "the trial judge concluded that the only logical inference from this evidence was that the appellant was aware there was child pornography on his work laptop, given the large volume of that material. That inference was open to him on the evidence. Indeed, it would have been merely speculative to conclude otherwise ..." - See paragraphs 69 to 72.

Criminal Law - Topic 588.4

Sexual offences, public morals and disorderly conduct - Public morals - Obscenity - Defences - Private use - The accused was convicted of making and possessing child pornography respecting pornographic images he took of a 13-14 year old girl with her consent - The girl could not consent to the accused taking and possessing the pornographic images until she was at least 18 years of age (Criminal Code, s. 163.1(1)(a)(i)) - No consent was given - However, since the Crown failed to prove that the accused had not yet turned 14 when consensual sexual activity commenced (including taking pornographic images), the "private use" defence was available - The trial judge did not address the defence - The Alberta Court of Appeal affirmed the convictions, but for different reasons than those of the trial judge - There was no "air of reality" to the "private use" defence - The "private use" defence required evidence that the parties intended the images to be used for their private use (mutuality of benefit) and that the girl's consent was obtained in circumstances precluding her exploitation or abuse - There was no evidence of either prerequisite to the defence - There was no evidence of intended private use by the accused, nor could that intent be inferred from the girl's stated intention that the images would remain private - Further, the circumstances led to the conclusion that the girl was exploited by the accused - See paragraphs 28 to 46.

Criminal Law - Topic 700

Sexual offences, public morals and disorderly conduct - Sexual offences - Particular offences - Sexual intercourse with female under age 14 - [See Criminal Law - Topic 4684 ].

Criminal Law - Topic 709

Sexual offences - Particular offences - Internet luring - The accused was convicted on three counts of "luring" by means of a "computer system" (Criminal Code, s. 172.1(1)) - At issue on appeal was whether the device upon which the accused and the complainant communicated (Blackberry phone) was proved to be a "computer system" - "Computer system" was defined in s. 342.1(2) as being a device that "contains computer programs or other data" and "performs logic and control" - The Crown's expert was not asked, nor did he testify, that the accused's Blackberry contained computer programs pursuant to which logic and control were performed - There was no direct evidence on this point - The trial judge incorrectly found that the accused admitted that his Blackberry was a "computer system" - The Alberta Court of Appeal set aside the luring convictions - The court stated that "the only reliable evidence in relation to the means of communication relating to the luring counts was the [accused's] text messages to [the complainant] from his Blackberry. There was no reliable evidence that any of the parties' exchanges by computer, before they started text messaging, was for the purpose of facilitating one of the predicate sexual offences referred to in s. 172.1(1)(a) ... There was no expert evidence as to the exact nature of a Blackberry, nor which showed it contained computer programs or other data, and that pursuant to those computer programs performed logic and control or any other function. It was an essential element of the offences ... that he communicated with [the complainant] by means of a computer system, an element which the Crown was required to prove beyond a reasonable doubt" - See paragraphs 55 to 68.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - The accused was convicted of sexual assault and sexual interference with a girl under the age of 14 (age of consent at the time) - The Alberta Court of Appeal set aside the convictions on the ground that the trial judge erred in finding that the Crown proved beyond a reasonable doubt that the consensual sexual contact, including the taking of pornographic images of the girl, commenced when the girl was still 13 rather than after she turned 14 - The girl's testimony contained many internal inconsistencies as to when sexual relations began - There was no direct evidence establishing the date - The trial judge concluded that sexual relations began before the girl turned 14, but gave no reasons rationalizing her inconsistent evidence - The court stated that "I agree that the trial judge's assessment is otherwise deficient in that it does not disclose his reasons, nor are those reasons otherwise apparent, given the inconsistencies in [the girl's] evidence and the content of the expert evidence, for concluding that the Crown had proven, beyond a reasonable doubt, that the [accused] had sexual contact with, or took pornographic images of, [the girl] before her 14th birthday. ... there was simply no reliable evidence upon which a properly instructed jury could have reached the conclusion that [the girl] was under the age of 14 when any of the acts of sexual contact with the [accused] occurred" - See paragraphs 13 to 27.

Criminal Law - Topic 4731

Procedure - Information or indictment - Charge or count - Indictable offences - Form and content - Date and description of offence - The accused was convicted of making and possessing child pornography between "November 5, 2007, and March 20, 2008" - The evidence at trial was unclear when the pornographic images were made, but, notably, the trial judge found that sexual contact occurred on or about August 2007, prior to the dates in the indictment - The accused argued that he should have been acquitted because the conduct underlying the charges occurred outside of the dates charged in the indictment - The Alberta Court of Appeal dismissed the appeal - The Crown need not prove the conduct fell within the alleged dates unless the date was an essential element of the offence - Since the accused was guilty unless the complainant was at least 18 years of age, and she was not yet 18 when the alleged offence was committed (13 or 14), the time that the offences charged occurred was not an essential element of the offence and the date did not need to be proved by the Crown beyond a reasonable doubt - See paragraphs 47 to 53.

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 44 D.L.R.(3d) 351, refd to. [para. 1].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 8].

R. v. Biniaris (J.) (2000), 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 143 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 8].

R. v. Shepherd (C.) (2009), 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 9].

R. v. Baig (1985), 9 O.A.C. 266; 20 C.C.C.(3d) 515 (C.A.), affd. [1987] 2 S.C.R. 577; 81 N.R. 212; 24 O.A.C. 372; 45 D.L.R.(4th) 318, refd to. [para. 9].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 12].

R. v. Keough (J.A.) (2011), 501 A.R. 26; 267 C.C.C.(3d) 193; 2011 ABQB 48, refd to. [para. 36].

R. v. Barabash (D.J.) (2012), 532 A.R. 364; 2012 ABQB 99, refd to. [para. 36].

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 49].

R. v. Rooke and De Vries, [1990] 1 S.C.R. 1020; 108 N.R. 234; 56 C.C.C.(3d) 220, refd to. [para. 49].

R. v. S.D., [2011] 1 S.C.R. 537; 414 N.R. 1; 2011 SCC 14, refd to. [para. 50].

R. v. G.B. et al. (No. 2), [1990] 2 S.C.R. 30; 111 N.R. 31; 86 Sask.R. 111; 56 C.C.C.(3d) 200, refd to. [para. 51].

R. v. Woodward (T.E.C.) (2011), 284 O.A.C. 151; 276 C.C.C.(3d) 86; 2011 ONCA 610, refd to. [para. 61].

R. v. Legare (C.B.), [2009] 3 S.C.R. 551; 396 N.R. 98; 469 A.R. 168; 470 W.A.C. 168; 2009 SCC 56, refd to. [para. 66].

R. v. Chalk (R.) (2007), 231 O.A.C. 107; 227 C.C.C.(3d) 141; 2007 ONCA 815, refd to. [para. 71].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 71].

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

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 172.1(1) [para. 55]; sect. 342.1(2) [para. 56].

Counsel:

J.C. Robb, Q.C., for the respondent;

S.A. Beaver, for the appellant.

This appeal was heard on January 31, 2013, before Côté, Conrad and Bielby, JJ.A., of the Alberta Court of Appeal.

On May 15, 2013, Bielby, J.A., delivered the following judgment for the Court of Appeal.