Court must consider showing child pornography sample at sentencing hearing: Manitoba judge

A Manitoba judge says the court must consider showing a sample of child pornography during a May sentencing hearing for a man who has pleaded guilty to possessing the material.

"The proper administration of justice requires the court to consider the representative sample," provincial court Judge Geoffrey H. Bayly wrote in an April 9 decision delivered from court in the Interlake community of Ashern.

Rodney Yankie's defence had made a motion to prevent the court from seeing the material. 

The defence had argued "there is no necessity" for the court to view the child sex abuse material, suggesting that doing so would "create a prejudice to the accused that far outweighs the probative value of the sample," according to Bayly's decision.

Yankie's lawyer also argued that showing the material could be "adding to the trauma and victimization of the children depicted in the sample."

The defence suggested because Yankie is not contesting the facts in this case, a written description of the material would suffice. 

However, the Crown said the sample should be reviewed alongside a written description of the material at the sentencing hearing, referencing a 2002 Alberta appeal court decision that stated "the photographs do not depict the crime — they are the crime."

Bayly denied the application, ruling that the evidence the defence wanted to exclude accurately demonstrates the seriousness of the crime and Yankie's culpability, suggesting the presiding judge should consider showing a sample at the sentencing hearing next month.

Differing views on benefits, harm of showing material

Monique St. Germain, general counsel for the Winnipeg-based Canadian Centre for Child Protection, told CBC News that generally speaking, judges may decide to review child sexual abuse material to get an accurate understanding of the crime, as opposed to "a sanitized version." 

"Seeing an image is never going to be replaced by words. That's just not possible," St. Germain said, adding that a written or verbal description "diminishes the victim's experience in a considerable way."

"In the context of sentencing, it is viewed because that is the crime that was committed — either the making of it, or the possessing of it, or the distributing it. Understanding what [child sexual abuse material] was possessed or distributed is part of the sentencing process."

In his decision, Judge Bayly wrote that the sentencing judge serves a "gatekeeper function," adding the decision to review the material is decided on a case-by-case basis, depending on how the judge weighs the value of the evidence to the case at hand. 

Showing the child pornography could revictimize the children depicted in it, Bayly wrote, but his decision also said a judge shouldn't avoid showing it on the grounds it is "distasteful or upsetting," if safeguards are put in place to protect the children's dignity. 

However, no one but the court — the witness, judge and counsel — should view the material, Bayly wrote. The public and Yankie should not see it, he wrote.

Brandon Trask, a University of Manitoba associate law professor who himself developed post-traumatic stress disorder while prosecuting a number of child sex abuse cases as a Crown attorney in Nova Scotia, says viewing these types of images and videos in a court setting is "definitely an unsettled issue," with judges ruling both for and against. 

"Every time somebody views these materials, arguably that has a very negative impact on the victim — wherever they are located," Trask told CBC News.

"Unless it's absolutely necessary for the truth-finding function of the criminal justice system, I'm certainly of the perspective that we should not be encouraging the actual submission of the actual materials where there is agreement on, through a verbal description, of what the materials depict," he said.

"We should be looking to protect people as much as possible — victims and everybody else involved in the criminal justice system."

Trask also said descriptions should be the "default" approach for courts, with materials provided only in "exceptional situations."

Yankie's sentencing hearing is scheduled for May 12.