A doctor in Sioux Lookout is clear of child pornography allegations. The Crown withdrew the charge yesterday, three years after 51-year-old Leonard Kelly was arrested.
At that time, provincial police officers seized three computers, floppy disks and other equipment during a raid. Kelly's arrest was part of a province-wide initiative by the O.P.P's child-porn section dubbed Operation Snowball.
In total, a half-dozen people were arrested on similar charges. The Ministry of the Attorney General received information last week about the case. Spokesman Brendan Crawley says the information used to obtain the search warrant against Kelly was not valid.
Lookout resident Leonard Kelly is "happy the ordeal is over," his lawyer said after Crown attorney Richard Cummine withdrew a charge of possession of child pornography in Superior Court in Kenora, Sept. 13.
Defence lawyer David Gibson added Kelly is, however, "deeply disappointed the process took as long as it did."
The OPP laid the charge against Kelly in October 2001.
The process ended when Cummine told the court Monday, "The Crown can't proceed with this prosecution... because of the validity of the warrants. The charge is withdrawn."
OPP Det. Const. Taylore Hald, who requested the search warrant from Thunder Bay Justice Di Guiseppe March 23, 2001, offered no comment after court was adjourned. A second detective, OPP Det. Const. Jeff Degen, walked out of the courtroom as soon as Cummine made the statement. Hald referred questions about the case to Cummine, who said in an interview he'd received information about the search warrant. His decision to withdraw the charge was influenced by an acquittal in a child pornography case investigated by the OPP and heard Sept. 3 in Superior Court in Barrie, Ont., an outcome he found out about Sept. 8.
Cummine used the words "misinformation" and "misrepresented at best" when describing the warrants.
"We have laws and you have to abide by them," Cummine said. "When you search someone's house you have to abide by them in that kind of intrusive search."
"The Crown has made a decision to withdraw the charge," Gibson said. "My client has lost his opportunity to defend himself. Most people understand you're innocent until you're proven guilty."
[A principle of law only - but not in practice -- injusticebusters.org]
He explained when a peace officer appears before a judicial officer to request a search warrant, they present a sworn affidavit saying, "This is what we think we know. If you allow us to search, we will find evidence of a crime at that place. The judge doesn't accept the peace officer's rational grounds. The judge double checks their reasoning."
In the case against Kelly, Hald swore in an affidavit the OPP wanted to search Kelly's Visa records on the grounds Kelly had used his Visa card to purchase child pornography over the Internet.
The OPP said they'd been given information on the purchases by police in Dallas, Texas.
Gibson said, "I began asking, 'Show me the information from Dallas that confirms the web sites contain child pornography.' I didn't get any information."
Cummine, however, received information in May 2004 provided by a U.S. postal inspector that revealed the authorities didn't have any "definite information" on the sites.
Further, Gibson said Hald swore to the information on the search warrant but it was Degen who had written it based on information he'd received from the police in Dallas.
After getting the search warrant, the OPP searched Kelly's Visa records, computer and house.
"This warrant should have never been issued," Gibson said.
"Everyone the least bit interested in privacy protection should be outraged by what is happening here."
If Canada wants to effectively fight child pornography, it must raise the age of consent to at least 16, an investigator with the Ontario Provincial Police told CTV's Canada AM.
Sgt. Bob Matthews of the OPP child pornography crime unit told Canada AM that they've been advocating for some time that the rules regarding age of consent be raised from the current age of 14.
"It seems to be falling on deaf ears," Matthews said. "That is a must. I think it would go a long way to help us."
His comments come one day after police announced a massive global pornography investigation has uncovered links to more than 2,300 people in Canada.
The Canadian probe, which involves 30 police agencies at all levels of government, has been dubbed Operation Snowball and is linked to the same bust, in Britain, that led to the arrest of The Who guitarist Pete Townshend. [where no child porn was found]
Despite a lengthy investigation, police say there have been few arrests.
"We in Canada have been working on this for just over two years. We have (more than) 2,000 suspects and we have arrested five per cent them," Det.-Sgt. Paul Gillespie, who heads up the Toronto police force's sex crime unit, told a news conference Thursday.
In all, the Canadian probe had led to 32 arrests and a total of 42 charges laid. In contrast, the British investigation has netted 1,300 people out of a list of 7,000.
Matthews told Canada AM that the police simply don't have the resources to go after child pornographers. He worries about the number of children who are being victimized.
"We find that roughly 25% ... of individuals we arrest are actual child molesters", he said. [injusticebusters.org editorial: thus 75% of people arrested are not] "When you look at this list overall, how many potential children out there are being targeted and being victimized?" [injusticebusters.org editorial: how many people arrested are victimized? 75%]
New legislation, Bill C-20, has just been tabled but still needs to be debated. It suggests that if pornography is being made by an adult who is somehow exploiting the child, then that would be deemed illegal. However, there is still some debate on the definition of "exploiting."
Mark Erik Hecht, a lawyer and children's rights advocate, said Bill C-20 is only trying to "plug some of the loopholes" created by the case of John Robin Sharpe decision.
Sharpe was convicted on two counts of possessing pornographic photographs depicting children but cleared of his writings that describe various sexual acts involving children. The case also found that any legal consensual activity, even between a 14-year-old and an adult, that is videotaped or recorded is legal if there is consent.
"I think that the Supreme Court gave us a pretty strong indication of how they feel about the Charter Rights of alleged offenders in the Sharpe case," Hecht said.
"Essentially they said that when it comes to trying to balance between Charter Rights of an alleged offender and a child's right, we're going to find in favour of the offender's rights," he said. "And I find that quite disturbing."
Hecht agreed that raising the age of consent would help, saying the case involving Sharpe tied the age of consent to child pornography.
"I think one thing that could happen, which might help in future cases regarding production issues around child pornography is raise the age of consent in Canada," he told Canada AM.
"The federal government has refused to do that despite the strong advocacy efforts of parents and teachers and lawyers."