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Child porn judge criticizes search decision

The RCMP’s Internet Child Exploitation Unit is the latest agency to face scrutiny at the trial of a man accused of making and possessing child porn by shooting pictures of nude girls.

Justice John Menzies has questioned a decision by Brandon police to wait for the Winnipeg-based ICE Unit to travel here to secure a warrant and search the accused’s home.

The question is whether that decision violated the accused’s rights by having him sit in custody longer than justified before being released by police.

A Brandon Police Service officer testified that the accused was held to secure and preserve evidence until the search could be done. Police wanted to find the photos the man allegedly took, but ICE Unit members, experts in child porn, weren’t available until the morning after the accused was arrested.

Menzies questioned whether the BPS should have waited for ICE Unit members who were apparently “too busy,” as he put it, to come out to Brandon sooner.

“You release (the accused), and if he’s any kind of intelligent person at all, he goes home and destroys that evidence,” Menzies acknowledged.

“But that doesn’t mean we keep him in custody because we’re not going to do the search until the prima donnas are ready.

“When you have these special units set up and you arrest somebody and you need to do something before you can release them. Is it an answer to the accused to say — you know what, our super high-powered, flowery, big-named specialist guys said they were too busy and so we’re just going to leave you in jail? Or is it, OK, we’re going to have to release him.”

Menzies made his comments in Brandon Court of Queen’s Bench on Thursday, as Crown attorney Rich Lonstrup and defence lawyer Philipe Richer made closing arguments at the trial of the 76-year-old accused.

Two women testified that, on Nov. 28, 2011, when they were both 15 years old, the man drove them from Brandon to his trailer park home outside the city. There, he plied them with liquor and shot pictures of them bare-breasted and nude, the girls testified.

The Brandon Sun isn’t naming the man to ensure the identities of the women are protected.

Richer argues that his client’s rights under the Charter of Rights and Freedoms were violated, so the charges should be dropped.

The Crown and defence have already agreed that the man’s rights were violated when he spent about 21 hours at the Brandon jail without getting a chance to call a lawyer as he requested.

Richer argues that his client’s right not to be arbitrarily detained was also breached, based on the length of time he spent in custody before police released him on conditions.

The BPS lead investigator testified that the accused has no criminal record and confirmed that he’d intended to release him on conditions following his arrest in the afternoon of Nov. 29, 2011.

But, after requesting the ICE Unit’s assistance, a unit member told the BPS investigator the unit wasn’t available to travel here from Winnipeg to do a search until morning.

With the accused already in custody, the clock was ticking. Under these circumstances, the accused could be held for up to 24 hours, but should have been released as soon as practical.

City police shouldn’t have waited for the ICE Unit, Menzies suggested — it doesn’t take a specialized unit to search a home. The BPS should have either released the accused, or told the ICE Unit they couldn’t wait, or prepared the warrant and done the search itself (likely with the help of local RCMP as the home was just outside the city).

Or, Menzies said, the BPS should have at least prepared the warrant to have it ready for when the ICE Unit arrived.

Instead, the BPS officer waited until ICE Unit members arrived at the BPS station in the morning and helped them write the warrant. It was another four hours before that was done, the warrant obtained and ICE Unit members left to do the search.

The BPS investigator then retrieved the accused from jail and interviewed him. It was about 24 hours after his arrest that he was finally released.

Menzies has reserved his decision on the charter issues and verdicts, and the case has been put to May 12 to set a date for him to deliver his decision.

» ihitchen@brandonsun.com

» Twitter: @IanHitchen

Republished from the Brandon Sun print edition April 19, 2014

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The RCMP’s Internet Child Exploitation Unit is the latest agency to face scrutiny at the trial of a man accused of making and possessing child porn by shooting pictures of nude girls.

Justice John Menzies has questioned a decision by Brandon police to wait for the Winnipeg-based ICE Unit to travel here to secure a warrant and search the accused’s home.

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The RCMP’s Internet Child Exploitation Unit is the latest agency to face scrutiny at the trial of a man accused of making and possessing child porn by shooting pictures of nude girls.

Justice John Menzies has questioned a decision by Brandon police to wait for the Winnipeg-based ICE Unit to travel here to secure a warrant and search the accused’s home.

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