Matthew David Spencer v. Her Majesty the Queen

(Saskatchewan) (Criminal) (By Leave)




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Canadian Charter of Rights and Freedoms – Search and seizure – Whether s. 8 of the Charter was violated – Offences – Elements of offence – Mens rea of offence of making child pornography available – Whether Court of Appeal erred in law by overturning acquittal on count of making child pornography available

The applicant downloaded child pornography from the internet using a peer-to-peer file-sharing software program that connects users over the internet. The applicant stored child pornography in his shared folder and did not override the software’s default settings that made his shared folder accessible to other users from which they could obtain downloads of his files. A police officer searched his folder and discovered the pornographic files. The officer could not identify the owner of the folder but did determine that the Internet Protocol address being used by the owner of the folder had been assigned by Shaw Communications. The police wrote to Shaw and requested information identifying the assignee at the relevant time. Shaw identified the respondent’s sister. The police obtained a warrant and searched her residence, where they seized the respondent’s computer. The applicant was charged with possession of child pornography and making child pornography available.

Lower Court Rulings

August 31, 2009
Court of Queen’s Bench of Saskatchewan

Q.B.J. No.21/08, 2009 SKQB 341
Application to exclude evidence pursuant to the Charter dismissed Conviction on count of possession of child pornography; acquittal on count of making child pornography available
November 25, 2011
Court of Appeal for Saskatchewan

1857-CR, 1862-CR, 2011 SKCA 144
Appeal by applicant from conviction dismissed; Appeal by Crown from acquittal allowed, new trial ordered on count of making child pornography available