Man loses appeal in shared intimate videos case

Manitoba’s highest court upheld a Brandon man’s conviction after he was found guilty of sharing sexually explicit videos of his pregnant ex-fiancée to Pornhub.

“We are not persuaded that the verdict is unreasonable,” Justice Janice leMaistre wrote on behalf of the appeal court.

The 36-year-old businessman was found guilty in April 2024 of making intimate imagery available without consent after standing trial in Brandon provincial court.

A publication ban on information that could identify the victim prevents the Sun from naming the accused.

In February, Judge Shauna Hewitt-Michta sentenced the man to nine months in jail and a requirement to report to the National Sex Offender Registry for the next 20 years.

The man took his case to Manitoba’s Court of Appeal, where defence lawyer Ryan Amy on Sept. 2 argued about the evidence used to support his conviction, the length of his sentence and NSOR order.

The accused texted a link to a video of the victim performing sexual acts on the accused in August 2020, which he posted on his Pornhub account.

The victim reported it to police, and they obtained the videos through a production order, which is a judicial authorization that compels a person or organization to disclose certain materials.

Neither the victim nor police could access the videos otherwise due to the account being locked. However, the man had 18 friends and seven subscribers.

Pornhub sent links to the videos to BPS, and they reviewed them with the victim, who testified during the trial that she had consented to recording “some, not all” of the videos, but that she didn’t consent to him posting them, wrote leMaistre.

During the trial, the argument was around whether the accused knowingly made the videos public. The defence lawyer argued that it was reasonable to infer he had posted the videos there for his own safekeeping, which Hewitt-Michta rejected.

“She found that the only reasonable inference was that the accused knowingly made the videos available to others. She reached this conclusion based on the fact that Pornhub’s purpose is to facilitate the sharing of pornographic videos and that the account had 18 friends and seven subscribers,” leMaistre wrote.

Hewitt-Michta had said that police were able to retrieve the videos through links from Pornhub, and that Pornhub employees and staff had access to the videos without the victim’s consent.

Amy argued at the appeal hearing that these inferences were unreasonable.

“To make the leap from having subscribers and friends, therefore they had access to these videos cannot be made … and that seemed, I would suggest, the error that was made on that issue,” Amy said.

In terms of the man’s sentence, Amy said the judge relied on an aggravating factor, which didn’t arise at trial. He said during the trial, the victim referenced two videos, which had two and seven views.

He said that at the sentencing, new evidence was attached to the pre-sentence report that indicated one video had been viewed more than 1,200 times and another a couple hundred times.

While the defence lawyer at the sentencing hearing did not object to this information, Amy said the judge relied on it too heavily as an aggravating factor.

“After a trial, the evidence a person is to be sentenced on is the evidence at the trial,” he said.

Amy also argued that the sentencing judge said the accused did not have Gladue factors. But the lawyer said that while his client’s family did a “fantastic job at breaking the cycle,” he has still felt the impacts of colonialism, including multiple family members attending residential school.

Amy said a conditional sentence, which is essentially house arrest, would have sent the intended message of a denunciation and deterrence.

Additionally, he said the 20-year NSOR order should either be overturned or, at the very least, reduced to 10 years, since the judge didn’t provide adequate reasons for making the order.

Crown attorney Kathryn Hart said Hewitt-Michta’s comments about the production order proving the videos were made available were not essential evidence, but instead one way to illustrate that those videos became accessible to someone without the victim’s consent.

She said the judge did not consider the 1,200 views as a further aggravating factor but used it to represent the impact on the victim of not knowing who and how many people viewed the videos.

“I don’t agree with my friend’s submissions that there was an impact on the sentence here. Even if we take the view counts out of the equation, it can’t seriously be contended that the assessment of the gravity of the offence and the moral culpability would have changed,” she said.

Additionally, she said Hewitt-Michta did take into account the man’s Gladue factors but came to the conclusion that they didn’t impact his moral culpability.

Hart agreed to reduce the NSOR order to 10 years from 20.

The Court of Appeal upheld the man’s conviction and jail sentence.

“We agree with the trial judge that the presence of friends and subscribers is evidence of file sharing and that this evidence reasonably leads to the inference that he intended to make the videos available to others,” leMaistre wrote.

She also said that Hewitt-Michta’s weighing of the relevant factors was appropriate and that “it’s not our role to reweigh them.”

The NSOR order was reduced to 10 years.

» sanderson@brandonsun.com