N.W.T. judge rules she'll review child pornography to sentence former nurse

Justice Louise Charbonneau has issued a ruling on whether viewing the materials at the heart of a child pornography case will help or hinder her sentencing decision, and what other harms it could cause to court staff. 

Former Whatì nurse Mario LaPlante was convicted of possessing and distributing child pornography on August 4. His sentencing hearing began earlier this month in the Supreme Court of the Northwest Territories.

The court heard then that he had been in possession of thousands of digital images and video files of child pornography while living and working as a nurse in the Whatì health centre. He also made the files accessible to others through online file sharing service BitTorrent.

Crown Prosecutor Jill Andrews and defence counsel Mallorie Malone debated whether Charbonneau should view the materials, or if they would be described to her at the next court date in September. 

According to Charbonneau's written ruling, Malone argued that "the materials are so vile and offensive and will evoke such a visceral reaction that my seeing them risks skewing the entire sentencing analysis."

Malone also raised the concern that viewing the materials could cause the judge to conflate the issue of possession and distribution — LaPlante's crimes — with the act of creating the pornography, which LaPlante is not guilty of. 

However, "being aware of such risks, being careful not to conflate issues, and not allowing decisions to be driven by emotional responses rather than rational analysis, are at the very heart of the judicial function," Charbonneau wrote.

"Unfortunately, judges sometimes see horrific things and hear horrific things, and must be vigilant about the effect this has on their reasoning processes and their decisions."

She acknowledged Malone's concern that in viewing the images and video, more people than necessary would be exposed to the materials. Malone argued that counsel would have to view the material and other court staff risk seeing them in preparing the files for court. 

Charbonneau said that in looking at the samples herself, the court actually avoids such risks.

She decided to view the files in chambers and not in open court. This way, others in the courtroom will not be subject to a detailed description of the materials and Charbonneau would be able to ensure explanations are accurate rather than having information filtered through a witness. 

"I will be able to make my own direct observations. That, it seems to me, may alleviate the need for counsel to also look at them," she said. 

Victims' group can weigh in

Charbonneau noted that the victims' stance on her viewing the files was "a significant consideration." She was advised that the victims took no position on the matter and understood that the function in this case is entirely different from offenders viewing the materials for pleasure. 

Charbonneau also ruled on whether or not a 19-page community impact statement could be heard from a group of victims of child pornography provided by the Canadian Centre for Child Protection.

She said that hearing the statement would provide "important context about the nature of the harm caused by these offences and their long-lasting nature."  

Obtaining victim impact statements are exceedingly difficult in these kinds of cases, she said, noting that "reliance on this type of general document is the only way that sentencing courts can get a true measure of the impact of these crimes."

Charbonneau acknowledged the defence's argument that not all information in the community impact statement would be significant to her sentencing decision. She invited counsel to make further submissions on what she should consider or disregard. 

LaPlante's hearing is scheduled to continue on September 13.