Regina Vs Pecciarich
[Indexed as: R. v. Pecciarich]
Ontario Court (Provincial Division) Sparrow Prov. Div. J.
April 6, 1995
Criminal law – Pornography – Distribution – Accused sending computer files to computer bulletin board – Files admitted to be child pornography – Accused convicted of distributing child pornography.
Criminal law – Evidence – Documents – Hearsay – Circumstantial evidence – Accused charged with distributing child pornography by sending computer files to computer bulletin board – Accused using code name – Identity of accused proven by circumstantial evidence – Documents found in accused’s possession and files on accused’s computer used as original circumstantial evidence that accused and the code name were linked in meaningful way – Inference that accused and person using code name were same person.
JP was charged with one count of distributing obscene pictures and one count of distributing child pornography by using his personal computer to upload, i.e., to send, computer files to a computer bulletin board where the files could be downloaded, i.e., received by other computer users. The charges arose after an investigation in which KB, a computer expert, download computer bulletin boards The files bore the identification of having been Zephyr scan “Recent Zephyr”, and certain images contained the words “Recent Zephyr scan”. Pursuant to a search warrant, a search was made of JP’s bedroom and, among other things, documents, catalogue pictures, lewd pictures of children, a manila folder labelled “Recent Zephyr’s Software and such”, and JP’s computer system were seized. The system included a backup tape and a scanner, a device permitting images to be reproduced on a computer where they could be altered. A printout was made of items stored on the backup tape, and the items included various documents identified by references to Recent Zephyr. The printout included a Series of images which appeared to be steps in the creation of one Zephyr. One of these images bore JP’s name. It was admitted that the images and text were obscene and pornographic; however, the accused argued that the Crown had not proven that it was he, using the code name Recent Zephyr, who had uploaded the computer files, and the accused argued that uploading computer files did not constitute as defined by law.
Held, the accused should be convicted only on the count of distributing child pornography.
There was no admissible evidence to prove uploading of obscene material, and the accused should be acquitted on this count; the other, however, was proven. The evidence established that the accused was Recent Zephyr. The fact that many documents in the accused’s computer exhibit the name Recent Zephyr tended to indicate that the code name was his. Further, the accused knew that he had documents in his computer containing references to child pornography with the name Recent Zephyr on a matching image. This correspondence was a piece of original or real circumstantial evidence that the accused and Recent Zephyr were one. It was logical to assume that someone would not leave his name on illegal material on a backup tape if he were not somehow connected to it or involved in its creation. Given that the accused’s possessed a scanner and given that certain similar to drawings and pictures in the accused’s possession, it was reasonable to conclude that he created the images placed on the bulletin board which bore the name Recent Zephyr did not violate the hearsay rule; the documents were used as pieces of original circumstantial evidence that the accused and the name Recent Zephyr were so frequently linked in a meaningful way as to create the logical inference that they were same person. Having found that the accused used the name Recent Zephyr, it could be conclude that the documents on his backup tape purportedly authored by him were his creations and were as such admission that he uploaded the files containing child pornography. To suggest that the files were created by an imposter but knowingly stored by him on a backup tape was conjecture without any evidentiary support. Finally, as a matter of law, uploading files onto a computer board where the public has access to them was distribution.
Cases referred to
R. v. B. (G) (No.1), [1990] 2 S.C.R. 3, 56 C.C.C. (3d) 161, 77 C.R. (3d) 327, 111 N.R. 1;
R v. Bastien (1968), 20 C.C.C. (2d) 562 (B.C.Co.Ct.);
R. v. Evans, [1993] 3 S.C.R. 653, 85 C.C.C. (3d) 97, 25 C.R. (4th) 46, 108 D.L.R. (4th) 32;
R. v. Householders T.V. & Appliances Ltd. (1984), 20 C.C.C. (3d) 561 (Ont. Co. Ct.), affd loc. cit. p.571 (Ont. C.A.);
R. v. McCrum (1974), 21 C.C.C (2d) 343, 9 N.B.R. (2d) 66 (C.A.);
R. v. Morrissery (1995), 22 O.R. (3d) 514 (C.A.);
R. v. Sudbury News Service Ltd. (1978), 18 O.R. (2d) 428, 39 C.C.C. (2d) 1 (C.A.)
Statutes referred to
Criminal Code, R.S.C. 1985, c. C-46, ss. 601, 786
Authorities referred to
McWilliams, P.K. Canadian Criminal Evidence, 3rd ed., p. 10310
Phipson on Evidence, 13th ed. (1982), para. 21-09
TRIAL on charges of distributing obscene pictures and child pornography
Philip Enright, for the Crown.
John Collins, for accused.
SPARROW PROV. DIV. J.: — The accused Joseph Pecciarich is charged that (1) between the 20th day of August, 1993 and the 28th day of August 1993 he unlawfully did distribute obscene pictures, to wit a series of files of computer images, and (2) between the 7th day of August 1993 and the 30th day of September 1993 he unlawfully did distribute child pornography, to wit a series of computer images and text files. In short, he is accused of using his personal computer to send the obscene texts and images to one or more computer distribution centres referred to as bulletin boards, where they can be accessed by or sent to other computer users.
The Facts
Defence counsel has admitted that the images and texts in question are obscene and pornographic as charged; however, he argues that the Crown has proved neither distribution in fact by his client, nor distribution as defined by law.
The case commenced with a voir dire regarding certain statements made to police by the accused, which were ultimately ruled admissible. They occurred during, and immediately after the execution of a search warrant on October 21, 1993 at his home at 2024 Millway Gate in Mississauga, where he was found lying on the bed in his upstairs bedroom. His computer system, a brown brief case filled with documents, catalogue pictures and sketches, and other items were seized in the bedroom.
The investigation which commenced in mid-July 1993, and lasted through mid-October, was led by Detective Constables Sweeney and Sutherland, and conducted largely by computer specialist Kevin Blumberg. Mr. Blumberg was engaged specifically for the purpose of reviewing materials made available to computer users via computer bulletin boards and locating items which were obscene and/or in the nature of child pornography or hate literature. He did so by using a directory of bulletin boards called “Toronto Computes”, contacting those which appeared to provide adult items and identifying images and texts which appeared to fall within the categories described above.
Mr. Blumberg explained that in order to access a bulletin board, he would enter a number, and then fill out an application to use the bulletin board, which would be accepted or declined by the manager, known as the systems operator. Mr. Bllumberg would then scrutinize the available files, and “download”, or replicate certain files or catalogues of file descriptions which he thought would be of interest to the police. These select items would be stored on the hard drive, or permanent storage area of his computer.
In exchange for receiving the “downloaded” material, Mr. Blumberg, using the alias “Romulus”, would provide a file as consideration, usually being one-third or one-quarter of the size of the downloaded file. The file is delivered by a process known as “uploading”, or transferring from a personal computer to another computer system such as a bulletin board. He described the programs he provided as “general” in nature. In other relevant testimony he stated that many of the files which he downloaded were identifiable by the terms “GIF” (Graphic Interchange Format) indicating a particular type of format for graphics or pictures, and “ZIP” indicating textual information that is compressed and must be brought back to its original state with a particular program.
After generally describing the way in which computer bulletin boards are accessed, Mr. Blumberg testified as to how on August 16, 1993 he contacted “the Gateway” — the major site of the obscene and pornographic material allegedly “uploaded” or distributed by the accused. His application was accepted by the systems operator, identified as one Michael Keating, who verified Mr. Blumberg’s identity and age by calling him back personally. Verification of his access thereafter was done by a computer driven system. The bulletin board was identified as containing adult files GIF, the “Cosysop” (co-systems operator) was identified as “The World Famous Recent Zephyr”, the alleged code name of the accused. He then examined a catalogue of available files, containing a brief description, date of creation, and date of uploading, and selected seven for downloading and storage to be reviewed by the police.
Regarding the files listed in count 2 of the information, Mr. Blumberg testified that on August 20, 1993, he downloaded YNGFUN 10.ZIP and YNGFUN 11.ZIP, both of which were identified as productions of RECENT ZEPHYR, copyright 1993. He testified that both text files were seen on the Gateway as well as other bulletin boards.
In further evidence addressing the second count, Mr. Blumberg testified that the graphic, or pictorial files Moppet 1.GIF through Moppet 4.GIF were downloaded by him on September 20, 1993, all exhibiting on screen a printed statement that they were uploaded by Recent Zephyr on dates in August and September, 1993. A sample description of MOPPET 01 was “A Gateway original GIF”! Two with girls fully nude and a younger one without panties, and just pulling off the top! He testified that all remaining files specified in count 2 of the information were seen on either the Gateway or another bulletin board such as “Scruples”, and all were identified as having been uploaded by Recent Zephyr on August 3, 1993. Only certain ones were downloaded and stored, due to time and space limitations.
Regarding the files of allegedly obscene pictures specified in count 1, Mr. Blumberg testified that they were all described as having been uploaded onto the Gateway by Recent Zephyr on dates in August 1993. Certain files contained a limited amount of graphic text such as “Guy and girl have sex and piss on each other in the series”, in file PDRNKRI.GIF. Again, only certain files were downloaded and stored by Mr. Blumberg. Other files purportedly uploaded by Recent Zephyr were seen on many bulletin boards, and sometimes identified as associated with the company names “Yes Software” and “UCP Software”.
In other evidence in chief, Mr. Blumberg described how a device called a scanner, seized in the accused’s bedroom, can be stroked across an image such as a picture of a child from a catalogue in order to reproduce it on a computer file. Once stored in the computer, other software could be used to make changes such as removing clothing and “drawing in” body parts including genitalia. In cross-examination, Mr. Blumberg acknowledged that even if images were uploaded by a subscriber to the bulletin board, the systems operator could make the alterations described above. In addition, the operator could insert the words “uploaded by Recent Zephyr”, without his knowledge. Furthermore, an imposter could upload materials onto the bulletin board in the name of another subscriber, using his telephone number without his knowledge; however, in testimony which was less than crystal clear, Mr. Blumberg explained that a system of call back verification may or may not pick up on the false identity of the uploader.
Following Mr. Blumberg, Detective Constable Sweeney gave testimony concerning all items seized from the bedroom of the accused and the alleged links between those items and the files viewed on the bulletin boards and specified in the information. Defence counsel does not dispute that these items were in his client’s possession, but argues that most of them are hearsay in nature, and therefore cannot be used to link his client to the obscene and pornographic material. I will now describe each item by exhibit number.
Exhibit 1 — Brown briefcase from closet containing documents.
1(a) — Catalogue picture of three children in bathing suits. The Crown argues that it is a definite match to ex. 1(c) on argument, the picture labelled “Moppet” 04.GIF, viewed on the Gateway Bulletin Board, except that the girls’ clothing has been removed;
1(b) — catalogue picture of children in a wading pool, which the Crown argues matches ex. 1(b) on argument, except that the boy has been moved on top of the girl and the clothing removed;
1(c) — a scrapbook of newspaper articles concerning sexual assault trials and pending child pornography legislation;
1(d) — a piece of paper with catalogue cutouts, a drawing of a naked child and man, and a drawing of a naked girl being held in an obscene pose by a boy. The Crown argues that the latter drawing matches ex. 9(d), a printout of an image which was located on a bulletin board and identified with the markings “Forestwood Kids”, “Recent Zephyr”, and “RZ” (see testimony of Detective Sweeney referred to below). The same image and a series of images which seem to be stages in the development of Exhibit 9(d) were located on the accused’s computer are are described below.
1(e) — a manila folder labelled “Recent Zephyr’s Software and Such”. The folder contains three printouts of a lewd story entitled “The Forestwood Kids”, by Y.E.S. (youth entering sex), referring to child characters such as Jammie, Alison, Adam and Courtney, and a scribbled draft of a lewd story entitled YNGFUN*ZIP. The story was also seen by Detective Sweeney on the Gateway;
1(f) — a hand-drafted directory of names, addresses and phone numbers of children in Mississauga, including L.P, C.H, J. who lives on Forestwood Drive, E. and E.;
1(g) — an envelope with “Lots of Young Fun” written on the outside, and a draft lewd story inside referring to children’s names seen in ex. 1(e) and (f); and with the words “Ultimate Connection BS” at the top of one page;
1(h) — an envelope with Lots of Young Fun”, “rough outline”, “story series” and “Years of fun (YRSFUN*.ZIP), continued from series one”, written on the outside, and draft suggestions for a lewd story inside;
1(i) — a sheet of scribbles referring to four of the files specified in count 2;
1(j) — a baby book with photos cut out;
1(k) — 2 pages of baby photos;
1(l) — a chart referring to pages and sizes;
2-7 — Computer, related parts, and scanner
