A top criminal defence lawyer says police acted irrationally by holding a high profile media conference in which it named 21 alleged child porn users nabbed in a province-wide sweep.
“The government has no rules. The police have no rules. So we get these knee-jerk reactions instead of rational policy,” said Morris Manning, a prominent Toronto lawyer known for changing Canada’s abortion law during his defence of Dr. Henry Morgentaler.
The Ontario Provincial Police and more than a dozen police forces announced the details on Feb. 12 of Ontario’s largest child porn sweep in history. Queen’s Park handed law enforcement agencies a mandate and $5 million in 2004 to work together to combat Internet crimes against children, including child pornography.
As recently as last week, a U.S. study showed there were more than 15,000 computers in Ontario actively distributing child porn. Police estimate 30 per cent of child porn users will abuse children at some point, and that abusers victimize as many as 30 children each.
Despite the magnitude of the child porn problem, Manning says naming suspects at large media events flies in the face of the presumption of innocence.
“If the idea is to blacken these people’s names forever, then they should say so up front,” said Manning.
The media event was attended by more than 40 journalists. Media outlets including the CBC and the Toronto Star published the names of those charged on their websites that same evening.
In 2003, when OPP boss Julian Fantino was Toronto’s police chief, he led a similar news conference to announce the arrests of five people suspected of possessing child porn, including Toronto resident James LeCraw.
Crown has 50 per cent conviction rate
The charges were dropped a short time later, but LeCraw killed himself in 2004, leaving behind a note in which he blamed Fantino and police for “their reckless, irresponsible media release”.
A 2007 study completed last year by Justice Canada found that only about 50 per cent of child porn charges result in convictions. If these statistics hold true, at least 11 of the people charged last week will have their charges dropped, be acquitted, or be found not guilty.
Media lawyer Tony Wong said there is no doubt that those named will have their reputations suffer as a result of being named.
“However, does that mean accused should not be identified until they are convicted?” he said. “That can’t be right because that would mean trials would have to be secret in order to protect the privacy of the accused.”
Wong, who represents clients such as the CBC and the Toronto Star, said police and the media have the absolute right to name suspects, except in rare cases such as those involving young offenders. He said people need to see everything that police and the courts do so they can tell whether the justice system works.
But Ted Fairhurst, who teaches media law and ethics at Centennial College, said announcements of major sting operations by police get much more prominence in the news than regular crime stories, increasing the need to follow up on those cases.
“As the LeCraw case illustrates, there is indeed the risk of collateral damage,” he said. “And the news media have a moral obligation not to ignore that.”
And it’s more than just a moral duty, it’s a legal requirement, said Wong.
“The privilege that applies to reports of charges requires that reports be fair,” he said. “This fairness requires that if the charge is ultimately dismissed, that this result be reported.”
Defence lawyer Manning goes further, saying that a news organization should present the acquittal, for instance, in the same place and with the same prominence as the original story that reported the charges.
“If there was a big front-page headline covering the laying of the charge, then there should be a big front-page headline covering the acquittal,” he said.
Manning says the police, media and criminal defence lawyers should work together to develop a policy on naming suspects.