Appellant has possession of child porn conviction overturned after two layers of court misunderstand caching
In R. v. M.N., the appellant had been convicted in 2009 of possessing child pornography, and his conviction in the trial court was upheld in the summary conviction appeal court. The appellant’s common law partner had found 55 child pornography images on their shared computer, in an Internet Explorer temp folder and on Google Desktop, and together they decided to call the police. The appellant admitted to accessing adult pornography but denied any knowledge of any child pornography and in particular denied downloading it. The couple’s 14-year old daughter testified that on one occasion, while accessing adult pornography on the computer, she had seen a child pornography pop-up but had simply closed the computer without downloading it. The appellant was convicted and sentenced to six months’ imprisonment (which he had served by the time of the appeal), as well as 10 years on the sex offender registry.
Much of the appeal turned on the Crown’s computer expert witness at the trial and how his evidence was interpreted. The expert had testified that cached files are created automatically upon accessing websites. The trial judge had rejected the appellant’s testimony that he did not know the files were on his computer, and held that the appellant had accessed the images on the internet. The judge then inferred—mistakenly, and clearly misinterpreting the expert evidence—that the file could not have come to be in the cache without some deliberate act on the part of the appellant. The appellant was convicted at trial and the conviction was upheld on appeal when the summary conviction appeals judge made the same mistake as that of the trial judge.
On appeal, the Crown consented to leave to appeal being granted and acknowledged that there was insufficient evidence that the appellant had intended to possess the images. Justice Weiler, for the court, reviewed the applicable law:
 The question of whether an accused person can be said to be in culpable possession of a cached visual depiction alone, while perhaps a live issue at the time of the appellant’s trial in 2009, was definitively answered by the Supreme Court of Canada in 2010. In Morelli, referenced above, Fish J. held, at para 19:
[P]ossession of an image in a computer means possession of the underlying data file, not its mere visual depiction. [Emphasis in original.]
 He explained, at para. 14:
In my view, merely viewing in a Web browser an image stored in a remote location on the Internet does not establish the level of control necessary to find possession. Possession of illegal images requires possession of the underlying data files in some way. Simply viewing images online constitutes the separate crime of accessing child pornography, created by Parliament in s. 163.1(4.1) of the Criminal Code. [Emphasis in original.]
 Fish J. concluded, at para 31, “Plainly, the mere fact that an image has been accessed by or displayed in a Web browser does not, without more, constitute possession of that image.” At paras. 35-36, he considered how the Court’s understanding of possession applied to files in an Internet cache as follows:
When accessing Web pages, most Internet browsers will store on the computer’s own hard drive a temporary copy of all or most of the files that comprise the Web page. This is typically known as a “caching function” and the location of the temporary, automatic copies is known as the “cache”.
On my view of possession, the automatic caching of a file to the hard drive does not, without more, constitute possession. While the cached file might be in a “place” over which the computer user has control, in order to establish possession, it is necessary to satisfy mens rea or fault requirements as well. Thus it must be shown that the file was knowingly stored and retained through the cache. [Emphasis in original.]
 After commenting that most computer users are unaware of the contents of their cache, how it operates, or even its existence, Fish J. held that absent that awareness, “they lack the mental or fault element essential to a finding that they culpably possess the images in their cache”: Morelli, at para. 37.
 Fish J. acknowledged that there could be rare instances where a person knowingly used the cache “as a location to store copies of image files with the intent to retain possession of them through the cache” (emphasis in original): Morelli, at para. 27. There is no evidence that this case is one of those rare instances. Thus, quite apart from the misapprehension of Ryder’s evidence, the existing jurisprudence would lead to the conclusion that the appellant was not guilty of possession of child pornography.
While effectively conceding the appeal on the possession conviction, the Crown nevertheless argued that a conviction should be entered for the offence of accessing child pornography, which in its view is a lesser included offence within the possession offence. Specifically the Crown argued that it is impossible to possess child pornography without accessing it, justifying considering the latter to be an included offence. Justice Weiler disagreed:
 For example, if someone downloaded child pornography onto a memory stick and gave that memory stick to the appellant, and the appellant knew the memory stick contained child pornography, the appellant would be in possession of child pornography. He would have knowledge of the contents of the memory stick and control over those contents; therefore the elements of possession would be satisfied. He would not be guilty of accessing child pornography because he has not viewed the images on the memory stick nor has he transmitted them to himself.
 As the above example illustrates, it is possible to possess child pornography without accessing it. The elements of the offence of accessing are not intrinsically embraced within the offence of possession.
 My conclusion is also consistent with Morelli, at para. 27, where Fish J. observed that “viewing and possession [of child pornography] should … be kept conceptually separate”. (emphasis added.)
In the end, neither entering a conviction for accessing nor amending the indictment to include the accessing offence, and sending the matter for a new trial, would be in the interests of justice. The trial judge’s misapprehension of the evidence might well have had an impact on the trial judge’s findings on the appellant’s credibility on the mens rea element of the possession offence, so a conviction was too dangerous. There was nothing to serve the public interest in having a new trial, given the length of time and the fact that the appellant had already served his sentence. The appeal was allowed and an acquittal entered.