Federal Ombudsman for Victims of Crime
Heard. Respected. Victims First.
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Special Report:
What More Needs to be Done—Recommendations
8. Ending Ongoing Victimization
“This is how I see it. When I capture their image—I capture a piece of time that not even there own mommy’s will have. They stay young forever, just for us pedos.... The vid cam makes them our eternal slaves. They becum our property to do whatever we want too.”
–Written in a chat message by Darren Philpott/canuckboylover136
“Usually, when a kid is hurt and the abuser goes to prison, the abuse is over. But because XXX put my pictures on the Internet, the abuse is still going on…. I am more upset about the pictures on the Internet than I am about what XXX did to me physically.”
–13-year-old sexual abuse victim whose images were put on the Internet
As determined, the ongoing circulation of child sexual abuse images makes it exponentially more difficult for victims to move on and heal.
While the abuse itself may have taken place in the past, victims are continually traumatized by the fact that those images continue to circulate and be used for gratification purposes. This is compounded by the fear that such personal markers of their own private past could pop up anywhere, for anyone to see at any given time.
Such ongoing levels of anxiety would be difficult for anyone to bear. For a victim who not only feels the embarrassment and shame of the image itself, but is forced to relive the crime each time the image is viewed, it is excruciating.
Consequently, it is imperative that any consideration of this issue include a discussion and recommendation on the handling of child sexual abuse images once they have been identified.
The handling of images falls into two main spheres—the lawyers and law enforcement specialists who handle and store the images as evidence and the Internet itself where the images are circulating.
Handling of child sexual abuse images in the Canadian justice system
In Canada, Crown attorneys are obligated to disclose copies of all evidence to the defence, including child sexual abuse images. These images are, however, unique and, given the serious privacy implications that exist for such victims, special care must be taken with respect to their disclosure.
This has already been recognized in the U.S. where legislation provides that in child pornography prosecutions, any property or material that constitutes child pornography shall remain in the care, custody and control of either the Government or the Court and that courts shall deny any request by the defendant to copy, photograph, duplicate or otherwise reproduce any property or material that constitutes child pornography so long as the Government makes the property or material reasonably available to the defendant.137
In 1993, the Ontario Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (“the Martin Committee”) recognized that while the “normal method” of disclosure was by copy, other interests, including a reasonable privacy or security interest of a victim or witness, may require and allow for an alternative form of disclosure, such as private viewing.138
In R. v. Blencowe, which involved the disclosure of 35 videotapes alleged to contain child pornography, Mr. Justice Watt found that while disclosure to defence counsel was mandatory, it was also necessary to consider the privacy interests of the victims and that they not be further compromised by copying, viewing, circulation or distribution of the tapes beyond what was required. Justice Watt required defence counsel to sign an undertaking with certain conditions prior to receiving disclosure. He proposed several conditions, including that counsel retain possession and control of the copies and not release them to anyone other than an expert; that the defendant not have possession or control of the tape (or images); that no one be permitted to view the tapes (or images) except the applicant, his counsel and any expert; that no copies be made and that the tape (or images) be returned to the investigating officer.139
More recently, in October 2008, an Alberta Provincial Court judge imposed strict conditions for the defence lawyer to abide by upon receipt of the DVD from the Crown: A lengthy password, which could not be written down, was given to him so he could access the evidence on the encrypted DVD; he could not allow anyone else to view the evidence; the DVD had to be returned to the Crown for destruction; and finally, he had to turn over the computer used for viewing the evidence to have an expert delete everything.140
In Canada, defence attorneys may be required to enter into an undertaking or to apply for a court order under subsection 490(15) of the Criminal Code to obtain access to the seized images, pursuant to conditions similar to those set out above (although more stringent).141 Unfortunately, an undertaking is no guarantee that a child’s privacy will not be compromised. On at least two occasions, defence counsel in Ontario have lost or misplaced material and were not able to return it to the police.
Finally, once the evidence has been viewed and removed it should be deleted from the original computer system in accordance with the Criminal Code. Subsection 164.1(5) of the Criminal Code allows the Court to make an order to the “custodian of the computer system” to delete material that the Court is satisfied, on a balance of probabilities, is child pornography.142 There is little evidence, however, to show that courts are making these orders. We therefore urge the Department of Justice to consult with its provincial and territorial counterparts to determine if these provisions are being used as Parliament intended and if they need to be amended to provide more clarification for the Court.
RECOMMENDATION 8—That the federal government introduce legislation to amend the Criminal Code to ensure that child sexual abuse images, video or audio recordings are not disclosed to defence counsel but that opportunities are made available for proper review of the evidence.