PICTOU – A Pictou County man will not stand trial on charges of possessing, accessing and making child pornography available, but his days in a courtroom are not over.
Earle Victor MacDonald, 38, was granted a stay of proceedings Thursday in provincial court after his lawyer Rob Sutherland successfully argued that his trial on three charges involving child pornography didn’t take place in a reasonable amount of time.
However, Crown attorney Craig Botterill confirmed Thursday outside the Pictou courtroom that a new charge of bestiality will be laid against MacDonald.
“During the course of this investigation and looking at child pornography images on the accused’s computer, police also recovered homemade videos that led to a charge of having sex with a dog,” said Botterill. “So those charges will have to be dealt with before the court.”
MacDonald will return to court in December to face the charge.
MacDonald wouldn’t comment yesterday on the judge’s decision to grant a stay or on the new charge, saying he would let his lawyer do the talking.
Sutherland said he doesn’t represent MacDonald on matters other than pornography charges and he and his client were “ecstatic” the stay was granted.
“It was a very long and torturous delay and we brought the appropriate application and we had excellent candor from the Crown confirming everything we had to say,” he said of Judge Del Atwood’s decision. “The judge made a very well reasoned decision, I think in the only way under the circumstances that he could have dealt with the case, given the prejudice that was already occasioned by police conduct. There was no solution other than a stay.”
New Glasgow Regional Police Service’s Internet Child Exploitation Unit started investigating MacDonald in November 2010 after receiving an alert on its own monitoring system that he was allegedly sharing child pornography.
Botterill told the court that MacDonald’s home was searched in February 2011 and he was officially charged in June 2011.
During the search of MacDonald’s home, a Macintosh laptop computer was seized and sent to the Atlantic Regional Tech Crime Unit in March for analysis.
Botterill told the court this had to be done because New Glasgow’s ICE unit had equipment to deal with Windows operating systems, but was unable to work with Macintosh.
In August 2011, the provincial tech unit told New Glasgow police it wouldn’t be able to perform a forensic analysis on the computer and it was returned to them.
Shortly afterwards, the officer assigned to MacDonald’s case was called upon to assist with the Amber Kirwan missing person case that later turned into a homicide.
However, when he returned to the ICE unit a few months later, he again asked the province tech crime unit to analyze the computer, but it wasn’t until Botterill contacted the tech to say he would be dropping the charges against MacDonald that a forensic analysis was completed on the laptop.
Atwood said in his decision that MacDonald was diligent in his court appearances and his lawyers had asked for full disclosure a number of times.
The judge added that the delay also caused MacDonald emotional and financial stress because his work equipment – as a self-employed photographer – was seized in the investigation.
In addition, when he was arrested in June 2011, he was put on a court undertaking that ordered him to stay away from the Internet and computers, thus “essentially shutting down his photography business,” said Atwood.
Outside the courtroom, Botterill said this is the first time he has experienced a stay of charges for unreasonable delay, but it was bound to happen considering the rise in child exploitation charges.
“This is just a symptom of the growing pains in this particular field of law enforcements,” he said. “The perforation of Internet-based crimes against children is something we are all struggling with keeping up with.”
He said not only has computer technology increased over the years, but so has the user’s knowledge of computer equipment.
“The software people are using to share pornographic images is creating an environment where there are suddenly not 10, 15, or 20 people under investigation in Nova Scotia at any given times, but hundreds of people under investigation,” Botterill said. “It was just a matter of time before a case like this occurred and where the ability of the police to respond in the very narrow time frame the courts have given us to bring a case to trial would occur and a charge would be stayed.”
He said he doesn’t expect this to be a problem in the future because police have expanded their resources to accommodate the growing number of child exploitation cases.
“I don’t think you would see situation like this arise again where the turnover time for police to complete a forensic analysis of the suspect’s computer would take as long as it had in this particular case because in the last two years the police have added additional resources to their tech crime unit,” he said.
