Accused loses fight in child pornography case
Images found on laptop left for repairs
WHITBY — Copying images from a computer hard drive to CDs and other media constitutes making child pornography even if the material is never distributed, a Superior Court judge has ruled.
Justice Myrna Lack said last Friday that when Robert Horvat copied downloaded child porn to CDs, DVDs and other computers, he was doing more than copying the images: He was creating new porn, she ruled.
“Before the process, the data did not exist in that medium,” the judge said in delivering her ruling. “All of this leads me to believe the copying of child pornography … constitutes making child pornography.
“Mr. Horvat copied data from one storage format to another and in doing so he made child pornography.”
Friday’s ruling was another defeat for Mr. Horvat, who has fought to have evidence gathered against him ruled inadmissible. After hearing arguments prior to the start of the trial Justice Lack ruled that Durham Regional Police investigators did not breach his charter rights when they interviewed him in February of 2005.
In those conversations with police Mr. Horvat, 28, of Brantford, admitted he was the sole owner and user of a computer that had been left at a Whitby shop for repairs. A technician found hundreds of images of child porn on the laptop and called police.
Mr. Horvat also told Durham Detective Andy Bussanich he was aware that what he was looking at online was child porn, Justice Lack heard during the voire dire hearing.
In a ruling released just before the case was to go before a jury trial, Justice Lack said Mr. Horvat’s admissions could be used as evidence against him. He immediately chose not to go to trial with a jury.
Mr. Horvat did not call evidence to contest a charge of possession of child pornography, but did fight the charge of making porn. His argument was that since the images on the discs seized by police were for his own use and would not be distributed, he was not guilty of manufacturing porn.
Crown counsel JulieAnn Barrett argued that when the images were transferred from one medium to another, new porn had been created. The judge agreed.
“I reject the defence argument that personal use only is a defence to making (pornography),” Justice Lack said.
“What is done in my view is an act of creation.”
Mr. Horvat is to be sentenced in July.