Convicted of possessing thousands of child pornography images and videos in 2020, a Guelph man will receive a new trial after successfully appealing the verdict due to the “misapprehension of evidence.”
In a decision posted Thursday, a trio of appeal court judges said the trial judge gave inappropriate weight to a report not entered into evidence in reaching a guilty verdict against Wilfred Kwok for possession of child pornography, accessing child pornography and making child pornography available.
Kwok was an instructor at the Guelph Grotto Climbing Gym at the time of his arrest.
That report drew links between Kwok and two computers and four hard drives police seized from his father’s basement, where he allegedly lived part-time, in August of 2019. Those computers contained 5,652 images and 65 videos of child pornography.
“Even though the evidence may have been capable of supporting a conviction without reference to the dates from the report that was not in evidence, an essential part of his reasoning relied on them,” the appeal ruling states. “Given the role played by his misapprehension of evidence, the result the trial judge reached was not a ‘true verdict.’”
In his appeal, Kwok successfully argued the trial judge relied on a report created by a computer forensic officer that provided dates when files and folders were downloaded and viewed. This was done to connect the accused with use of the computers.
However, the report wasn’t entered into evidence (only a slideshow summary was) and the officer didn’t testify regarding the dates. As such, those connections can’t be appropriately drawn and depended upon by the trial judge, the appeal court ruled.
“The trial judge then relied on when certain files and folders that contained illicit material were created to establish a period when the material was downloaded and when the appellant resided at the address,” the decision states. “This circumstantial evidence assisted the trial judge in deciding whether the appellant had knowledge and control over the illicit material.”
The trial judge “left it open” for the Crown to argue the full report should be entered into evidence, but that wasn’t done.
“The appellant was entitled to be tried only on the evidence,” the appellate judges ruled.
