Schrager, Hogue, Rancourt

Appeal from convictions. Appeal from long-term offender designation. Dismissed. Application for leave to appeal sentence. Granted. Appeal from the sentence. Allowed in part.

The appellant was convicted on several counts, including child pornography, invitation to sexual touching, and sexual interference. Several pieces of evidence came from files extracted from his computer during searches of his home. An investigator, a member of the Sûreté du Québec’s technological unit, testified on the methods used to extract the files, their location, and their accessibility as well as on the analyses done and their results. The appellant was sentenced to 12 years’ imprisonment. The trial judge also designated the appellant a long-term offender for 10 years and rendered an order prohibiting him from using the Internet for 15 years.

During a voir dire, the judge did not err in deciding that the investigator did not have to be qualified as an expert to testify. It is important to distinguish, as the judge did, opinion testimony that must be rendered by an expert from factual technical testimony that may be rendered by an ordinary witness. The first involves issuing an opinion whereas the second only reports facts based on specialized scientific or technical knowledge. In this case, the investigator explained the steps followed to copy, categorize, and analyze the content of the computer devices searched. He described the software used and explained each one’s function, whereas there is nothing in the record to suggest that the reliability of this software was questioned.

Moreover, while the appellant was right to fault the judge for having written that the analytical framework in R. v. W. (D.), (S.C. Can., 1991-03-28), SOQUIJ AZ-91111043, J.E. 91-603, [1991] 1 S.C.R. 742, applied only to the counts on which he testified, this ground has no merit. The judge analyzed the evidence as a whole, including the appellant’s out-of-court statement, and determined that the prosecution had discharged its burden of proving his guilt beyond a reasonable doubt.

As for the long-term offender finding, the judge concluded that the appellant’s conduct in any sexual matter shows a risk that he will cause injury, pain or other evil to other persons in the future, which meets the requirement under section 753.1(2)(b)(ii) of the Criminal Code (R.S.C. 1985, c. C-46). Insofar as the appellant has not established that the long-term offender designation or its term is unreasonable, the Court cannot intervene.

Last, with respect to the prohibition on using the Internet for 15 years, the principle that the order must be carefully tailored to the offender’s particular circumstances and be accompanied by conditions to reasonably reduce the risk he poses to society in general and children in particular must be considered. As with those accompanying a probation order, these conditions must not be overly vague or so difficult to follow that they will almost certainly result in a breach.

The prohibition on using the Internet for such a long period is reasonable given the particular circumstances of this case. However, the prohibition does not include any exception, while access to the Internet has become essential for various legitimate purposes. The order therefore disregards the tailored approach advanced by the recent case law. Thus, the order should be varied to allow the appellant to use the Internet in certain circumstances, but strict conditions should be imposed on this use.

Text of the decision: http://citoyens.soquij.qc.ca