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Appeal tossed for B.C. man who argued child porn on his phone was downloaded by someone else

This Feb. 19, 2014, file photo shows the Facebook app icon on an iPhone in New York.
This Feb. 19, 2014, file photo shows the Facebook app icon on an iPhone in New York. AP Photo/Karly Domb Sadof, File

The B.C. Court of Appeal has dismissed an attempt by a Terrace man to have a conviction for possession of child pornography overturned.

Marcus John Paquette argued that there was no concrete evidence he was the one who downloaded the material onto his iPhone.

Paquette was arrested after the social media website Tumblr contacted Canadian authorities and notified them of a user uploading child porn in April, 2016.

Police tracked Paquette down using his IP address, and seized an iPhone 3GS which contained child pornography, and a laptop from his office which contained a backup of the same material.

READ MORE: Squamish firefighter charged with possessing, distributing child pornography

The phone was password protected, and the 300 pornographic images and three videos were stored in a special compression app called iZip, which was downloaded from the app store using Paquette’s Apple ID.

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According to the ruling, he was charged with possession of the material, which was downloaded between Nov. 26, 2015 and July 5, 2016.

Protecting children from being victims of online pornography
Protecting children from being victims of online pornography

While Crown’s evidence was circumstantial, a B.C. Supreme Court judge ruled he was confident beyond a reasonable doubt that Paquette had downloaded the material.

Paquette’s appeal argued that the judge had misapprehended the evidence, had not given the defendant the benefit of the doubt in his inferences, and had reversed the burden of proof.

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In her reasons for judgement, signed off by two other judges, appeal court Justice Barbara Fisher noted that only one other person, Paquette’s former wife, was known to use the phone, and that there was correspondence linking Paquette to a Tumblr account.

Fisher further noted that an RCMP expert witness explained it was extremely unlikely that someone could have downloaded the iZip app without Paquette’s Apple ID password, and impossible to do without conscious intent.

Child pornography front and centre in ‘shocking’ new art exhibit
Child pornography front and centre in ‘shocking’ new art exhibit
“The [lower court] judge found it ‘highly improbable’ that another individual could have downloaded ‘a large volume of child pornography onto a password-protected iPhone which they did not own and likely would not have regular access to and to store that material in a manner in which it was readily accessible to the owner of that iPhone,'” wrote Fisher.

“Accordingly, the trial judge concluded that the only reasonable and non-speculative inference to be drawn from the evidence was that the appellant downloaded and stored the child pornography.

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“The theory that someone else did so amounted to mere speculation and did not raise a reasonable doubt.”

READ MORE: Canadian girls among victims in U.S. child porn case that landed 7 men in prison

Fisher went on to note that in a case involving circumstantial evidence, raising a reasonable doubt involves more than just showing that innocence is a possibility.

A reasonable doubt, she wrote, may be based on a lack of evidence — but in that case, the inferences drawn from that lack of evidence must also be reasonable, not mere speculation.

“In my opinion, the trial judge properly assessed the circumstantial evidence and the lack of evidence, and made findings and drew inferences of fact that were available on the evidence,” wrote Fisher.

“I see no basis to interfere with his conclusion that the Crown had established the appellant’s guilt beyond a reasonable doubt.”