Flin Flon man's child pornography charges stayed because of trial delays

A northern Manitoba man is no longer facing child pornography charges after a provincial court judge found he waited an unreasonably long time for a trial.

"This was a serious matter and it is truly unfortunate that it has not been decided on its merits," Judge Catherine Hembroff said during a hearing in The Pas last week.

The Flin Flon man was charged in early 2022, when he was 19 years old, with possession of child pornography, accessing child pornography and making child pornography available.

Those charges were stayed last week because of the Jordan decision, a 2016 ruling by the Supreme Court of Canada that puts a cap of 18 months between a charge and the actual or expected end of a trial in provincial court, with the exception of some allowable delays.

The Flin Flon man was charged on July 28, 2022, and it would've been more than 28 months until he finally reached the end of his trial due to numerous delays during the process, according to Judge Hembroff.

She said that even if time was subtracted for allowable delays — such as some caused by the defence — the accused still faced 21 months between his charge date and the trial's presumed end, several months over the Supreme Court's limit.

"One of the fundamental rights of any accused person in Canada is the right to a fair trial and to a trial within a reasonable amount of time," said Frank Cormier, a criminologist at the University of Manitoba. 

"Leaving someone in limbo with charges hanging over them for a prolonged period of time really just is not fair."

However, Cormier says the limits can become controversial when those facing serious allegations are set free without a trial. 

"In some cases, there is very clear evidence that probably would result in a conviction. And for those people to walk away, that can be extremely concerning to the public."

RCMP's 'late disclosure' played role in dismissal: judge

Early in 2022, RCMP seized a phone and two iPads while executing a search warrant on the Flin Flon man's home. On one of the devices, they found video of child pornography in the man's Snapchat that involved a girl aged eight to 10, court heard. The accused had argued that his device was hacked.

Among the delays cited by the judge is that it took four months before Crown prosecutors told the court they hadn't received phone analysis from police. 

Hembroff said actions by the RCMP and the Crown resulted in "unnecessary delay" that contributed to the stayed charges, according to recordings of court proceedings reviewed by CBC.

"This late disclosure [of the phone analysis] from RCMP at the front end played a role in this matter being dismissed for delay, and I hope this will be brought to their attention,"  said Hembroff. "This is a significant chunk of the 18-months ceiling eaten up."

When asked by CBC about the delay, the RCMP sent a written statement saying forensic analysis of seized devices is labour-intensive and time consuming.

"I can assure you that this matter was taken seriously and that a number of specialized resources were deployed in order to conduct a thorough investigation," RCMP spokesperson Sgt. Paul Manaigre wrote.

It is in no one's best interest to have matters stayed due to unreasonable delay.- Judge Catherine Hembroff

Another issue that dragged out over months was a discussion about disclosing evidence to the accused and how to do that, given his rural location. 

At one point, a Crown attorney told the accused's lawyer that copying evidence in a child pornography case could itself be an offence, suggesting the accused look at the evidence at The Pas Crown office, instead of allowing the defence to make copies.

Judge Hembroff said it seemed the Crown was not prepared to provide the accused with a printed copy of the evidence "in light of the number of pages involved" — which was over 1,000 pages. 

After six months of wrangling, a redacted printed paper copy was finally given to the man in court in mid-December 2023.

Delay 'denies justice' to accused, victims

Judge Hembroff said in her decision it is normal for defendants in small northern Manitoba communities to have to co-ordinate with lawyers who are based long distances away.

But she noted the Crown did not provide "firm and clear" direction on whether or not the defence lawyer was allowed to give his client a copy of the disclosure.

Another delay was caused when the Crown asked the original judge, Judge Todd Rambow, to recuse himself from the case on May 14, 2024. Rambow agreed.

Ultimately, the trial was scheduled for the third week of December 2024. Instead, a hearing was held on Dec. 12, where Judge Hembroff stayed the charges due to the numerous delays. 

"Unreasonable delay denies justice to the accused, victims and their families and the public as whole," Hembroff said at that hearing. 

"It is in no one's best interest to have matters stayed due to unreasonable delay."

The Canadian Centre for Child Protection said the outcome of the case is "very concerning."

Crimes involving child pornography can be more complex to investigate and prosecute, given the digital evidence involved, said Monique St. Germain, general counsel for the centre, in a written statement to CBC News.

"These are serious crimes, and real risks to children that can arise if suspects are not prosecuted," she said. "Victims deserve much better from our criminal justice system."