Local man didn't just stumble upon child porn, judge rules

A local man will be in a Sault Ste. Marie courtroom September 9 for sentencing after a judge found him guilty earlier of this week of possessing child pornography.

Robert Capancioni was convicted of the offence following a trial that took place over four days in January and two days this month.

Superior Court Justice Edward Gareau dismissed a second charge, finding him not guilty of making child pornography available by distributing it on the Internet.

In a written decision he released Wednesday, the judge said he was "simply not satisfied," based on the evidence he heard, "to the degree of certainty required" that Capancioni had the intention to make child pornography available for others.

Detective Constable Doug Erkkila, a city police computer forensic expert, was the Crown's primary witness at the trial.

He told the court that he flagged and began monitoring an IP address in November 2012 after police received information that a computer system was making child pornography available on the Internet.

Using undercover investigation software, images, some of which were identified as child pornography, were downloaded from the computer the following month.

On December 31, 2012, the software made a direct connection to the computer system and successfully downloaded a quantity of child porn.

The IP account was tracked to Capancioni and Erkkila obtained a warrant on January 15, 2013 to search his home.

A laptop computer was among a number of devices seized from the residence.

Erkkila testified that when he conducted a forensic analysis of the computer he discovered that the hard drive had been divided into two sections.

He was unable to open one side which had been encrypted.

In his decision, Gareau said the Crown's position was that the seized computer's archival history of use indicated Capancioni was a sophisticated computer user.

Assistant Crown David Kirk suggested the websites visited by the accused implied he knew he had child pornography in his possession.

The Crown conceded the case against Capancioni was "built on circumstantial evidence," but argued that "when the evidence is examined in its totality, it overwhelmingly establishes the elements of knowledge and control," the judge said.

Defence counsel Bruce Willson maintained that this circumstantial evidence didn't meet the threshold to establish the essential element of knowledge and control beyond a reasonable doubt.

Gareau noted the child pornography was lodged in the encrypted portion of the computer and police couldn't break the code to locate child pornography images on the laptop.

There was "no direct evidence" that Capancioni possessed child pornography "in that no one observed him on child pornography sites or observed him viewing child pornography," he said.

But it was established that Capancioni was the primary user of the computer from which the police downloaded child pornography on December 31, 2012, he said.

As well, it was the accused who searched how to set up encryption before the disk was encrypted.

The "inescapable conclusion," on the evidence, is that Capancioni created the disc, encrypted it, and that the images of child pornography were stored in his account.

The judge said it was the accused's account which searched various websites pertaining to young females.

These websites need key entry words to be activated and have to be actively sought out, "they are not stumbled upon by accident," the judge said.

"On the totality of the evidence, I am satisfied beyond a reasonable doubt that the accused knew what he had was child pornography and that he did not stumble on these files inadvertently," Gareau concluded.

"At the very least the accused was reckless or willfully blind as to the qualities of the files given the archival history of the use of the computer including the websites of young females assessed."