Court of Appeal of Quebec

Abel c. R.

Appeal from conviction. Dismissed. Following a jury trial, the appellant, a member of the military, was convicted on counts of possessing, distributing, and accessing child pornography. He submits that the trial judge erred by unduly restricting access to the evidence held by the prosecution, by finding admissible an out-of-court statement made in the presence of the police, and by giving the jury erroneous instructions on important aspects of the file. Access to the evidence The trial judge did not err by finding that the appellant’s right to make full answer and defence was not violated by the conditions of access to the evidence proposed by the Crown, including the obligation to consult the evidence in the Sûreté du Québec's offices, under certain conditions, rather than receiving a complete copy. Although the accused had a right to the disclosure of evidence, the prosecution has the discretion to choose the timing and manner of disclosure in the interest of justice. Indeed, certain elements of the evidence must not be reproduced or provided to the defence, as is generally the case with child pornography, the possession of which is prohibited and the dissemination of which must be prevented. Courts that control the conditions of access to evidence of child pornography as well as the conditions of their disclosure to the defence must take into account the following factors: (1) The harm likely to be caused to the victims. Whether they are known or unknown is irrelevant. The violation of the victims’ dignity in the event of dissemination and even in the event of simple access to the images must be taken into account. (2) The real danger of accidental dissemination. Indeed, despite the undertaking of an officer of the court to uphold its confidentiality, there is an inherent risk that pornographic material will be circulated as a result of a computer manipulation error. (3) The conditions of access to the evidence must therefore be precisely defined and the consequences assessed, all while ensuring that these conditions allow sufficient access to protect the accused's right to make full answer and defence. The statement made to the police The judge did not make a palpable and overriding error in his assessment of the contradictory testimonial evidence when he rejected the appellant's argument that his statement was not free and voluntary due primarily to his military status and the fact that his superiors asked him to cooperate with the police and that the investigator told him that it was in his interest to cooperate. The police also did not violate the appellant’s right to counsel, which is protected by s. 10(b) of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I), by not allowing him to communicate again with his counsel, during the interrogation, after he had been informed that child pornography had been discovered during the search of his home. In fact, it was not a material change in circumstances or increased jeopardy, which could have meant that the advice received by the appellant from his counsel no longer sufficed or was no longer valid. Instructions to the jury The judge’s instructions to the jury, even though they were lengthy and sometimes repetitive, are not tainted by errors that could lead to the conclusion that they were unfair. The trial judge correctly described the applicable principles, including the presumption of innocence, and he correctly explained the appellant’s grounds of defence to the jury.

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