David Spencer convicted of sharing child porn

Matthew David Spencer was wilfully blind that his use of a file-sharing program made child pornography files on his computer available to others, a Saskatoon judge has ruled.

On Thursday, Justice Shawn Smith found Spencer guilty of sharing child pornography, a charge that dates back to 2007.

Spencer was acquitted of the charge after his first trial in 2010, but after the Crown successfully appealed and the case went all the way to the Supreme Court of Canada, his second trial ended with a conviction.

He’s already served a ninemonth jail sentence for possessing child pornography, a charge which arose out of the same circumstances.

Spencer appealed that conviction to the Supreme Court, which issued a ruling last year that focused on the issue of how police requested and received Spencer’s address from his Internet service provider. The top court ruled police should have obtained a search warrant, but upheld Spencer’s conviction because police believed they were acting reasonably.

On the issue of making child porn available, Spencer testified he didn’t understand how the filesharing program Limewire worked and said “he had no idea others could access his downloaded pornography,” Smith recounted in his written decision.

Crown prosecutor Michael Segu pointed out Spencer was an experienced user of Limewire for years before he was charged.

The judge was shown a series a screenshots of what someone would see while installing Limewire, which Spencer did at least once in 2006 when he bought a new computer.

“The entire process is heavily peppered with statements, often highlighted, that indicated Limewire was a file-sharing program,” Smith said.

In a recorded police interview, Spencer appeared to acknowledge he was sharing files, but he argued at trial that he first had the “epiphany” that he was sharing files during the interview.

Ultimately, Smith concluded that while he couldn’t be certain Spencer consciously shared the files, he had “absolutely no hesitation” concluding Spencer was “wilfully blind” to the sharing function of Limewire.

The issue of wilful blindness was at the centre of the Saskatchewan Court of Appeal’s decision to overturn the original acquittal.

The question of how much more time Spencer will spend behind bars still has to be decided.

Segu said in court he will argue for the mandatory minimum of a one-year jail sentence, but Smith indicated he thought the nine months Spencer already served on the possession charge should be taken into account, especially given that it’s taken almost eight years to resolve the case.

Segu said he wasn’t sure a sentence of less than one year would be legal and he would have to research the case law.

“What I don’t want to see happen, and I’m pretty sure Mr. Spencer doesn’t want to see happen, is that for whatever reason the sentence imposed is not a legal sentence and we all end up in the Court of Appeal,” Segu said. “That’s the last thing anyone wants.”

Sentencing arguments are scheduled for April 13.