Judge questions need to show child porn in court By: Dean Pritchard Posted: 7:00 PM CDT Thursday, Aug. 13, 2020

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This article was published 12/08/2020 (1499 days ago), so information in it may no longer be current.

A sentencing this week for a Winnipeg man who admitted downloading child pornography became the focus of what kind of evidence a court is obliged to consider after a judge questioned his duty to view the criminal material.

It’s a common scene played out in court when an offender is being sentenced for child pornography offences: a prosecutor asks a judge permission to show court a “representative sampling” of the child abuse material so the court may properly gauge the seriousness of the crimes committed.

It’s a request that is almost always granted, but on Wednesday, provincial court Judge Tim Killeen pushed back on that request, arguing viewing the material would subject the child sex abuse victims to further victimization at his hands.

“I think sometimes there is a view that the Crown advances this evidence because it wishes to evoke an emotional response from the court. That is not why the evidence is being advanced in this case.” – Prosecutor Michelle Bright

Rhys Busch, 24, pleaded guilty last year to one count of possessing child pornography. Busch was arrested in August 2018 after an investigation by the Winnipeg Police Service’s internet child exploitation (ICE) unit revealed he had downloaded 254 images depicting child sex abuse and 74 child sex abuse videos.

The material depicted girls as young as three involved in explicit sex acts with adult men, sometimes with their hands and feet bound.

Prosecutor Michelle Bright said the images provided the court with the best evidence of the offences committed, likening them to surveillance video capturing the commission of a crime.

“The court is being asked to make significant determinations regarding the offender’s moral culpability,” Bright said. “From the Crown’s perspective, the best possible evidence is available from (the images captured on) his devices.

“I think sometimes there is a view that the Crown advances this evidence because it wishes to evoke an emotional response from the court,” Bright said. “That is not why the evidence is being advanced in this case. It’s being advanced for a reason.”

Killeen, grudgingly agreed to the request, citing case law obliging him to view the material if asked to by the Crown, but said he was capable of appreciating the grave nature of the images without watching them himself.

“You are entitled to play this, if you see fit,” Killeen said. “So be it, I will be compelled to watch it. But I can tell you I can anticipate how disgusting this will be.

“I’m also aware of the victimization that occurs when somebody who has been the victim of child sexual abuse that has been captured on video is played over and over again. It seems to me that we will do that once more in this case, with me being the one who is being compelled to victimize the children.” – Judge Tim Killeen

“I’m also aware of the victimization that occurs when somebody who has been the victim of child sexual abuse that has been captured on video is played over and over again,” he said. “It seems to me that we will do that once more in this case, with me being the one who is being compelled to victimize the children.”

It’s good that judges recognize how viewing child sex abuse material revictimizes victims, but it’s wrongheaded to say judges shouldn’t be obligated to view the material when requested — it’s their job, said Monique St. Germain, general counsel for the Canadian Centre for Child Protection.

“Our court system is designed to deal with all sorts of horrific things,” St. Germain said. “When we are talking about this sort of imagery, it’s not like you’ve seen one you’ve seen them all… When the Crown is requesting to put a representative sample forward, it’s in large part to ensure that the judge is well aware of what material this particular offender found to be sexually enjoyable. You can’t really understand that from a word description.”

Relying on a word description would also open it up for the defence to downplay the seriousness of the images in a given case, St. Germain argued.

St. Germain said victims may not like the idea of judges watching images of them being sexually abused, but they recognize it as an important part of the sentencing process.

“When (child sex abuse survivors) talk about being revictimized, they are talking about the viewing by offenders who are viewing it for the purpose of a sexual release,” St. Germain said. “That’s a very, very different purpose than what a judge would be viewing it for. A judge is in a position of power and authority where they are essentially responsible for keeping society safe from people who are enjoying this type of material. The only way they can really do that is if they understand exactly what the individual before them had.”

The Crown is recommending Busch be sentenced to 18 months in jail, his lawyer Amanda Heslop six months, arguing he has been on restrictive bail conditions for two years with no breaches of his order.

“When (child sex abuse survivors) talk about being revictimized, they are talking about the viewing by offenders who are viewing it for the purpose of a sexual release. That’s a very, very different purpose than what a judge would be viewing it for.” – Lawyer Monique St. Germain

Busch, who court heard has been undergoing therapy, told Killeen he is ready to accept whatever sentence he sees fit.

“What I did was wrong,” he said. “I need to pay for it and whatever you decide I should serve, I will do it.”

Killeen reserved his decision. A sentencing date has not been set.

dean.pritchard@freepress.mb.ca

Dean Pritchard
Courts reporter

Someone once said a journalist is just a reporter in a good suit. Dean Pritchard doesn’t own a good suit. But he knows a good lawsuit.

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