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Restitution laws for child porn victims need to improve

Criminal restitution laws in the United States are far more advanced than they are in Canada, says Toronto personal injury lawyer Anna Matas.

This deficiency, Matas adds, is something the government needs to address when it comes to improving legislation for victims of child pornography.

“American federal criminal restitution provisions are much more robust than ours,” says Matas. Section 738 of the Criminal Code of Canada, she adds, “allows for restitution in Canada but it’s very limited. You can only recover pecuniary damages incurred as a result of a harm, and then only if they are ‘readily ascertainable.’ There is no provision in our Criminal Code that permits recovery for pain and suffering.

“It’s a deficiency in our criminal restitution system. And we don’t have a civil cause of action that easily fits the kind of damage done to children who are the victims of child pornography.”

Next month, the U.S. Supreme Court will consider what thousands of men must pay “Amy” (as she’s named in court documents), after taking pleasure from viewing images of her being abused by her uncle, according to the National Post.

Images of Amy being sexually assaulted are among the most widely viewed child pornography in the world, the article reads. The images have figured in some 3,200 criminal cases since 1998.

A U.S. Justice Department program notifies Amy when new developments in criminal cases involve her and, according to the article, there have been about 1,800 notifications so far.

A 1994 law allows her to file a restitution request on each notification, the article says. Every viewing of child pornography, Congress found, “represents a renewed violation of the privacy of the victims and repetition of their abuse.”

Amy’s lawyers say the damages she’s endured – which are life-long and difficult to measure with a monetary value – add up to about $3.4 million: she finds it hard to hold down a job, she needs a lifetime of therapy, and has large legal bills to pay.

However, Matas says it is currently difficult for a Canadian citizen who has faced a similarly tragic situation to bring this kind of action against perpetrators of child pornography in a Canadian court.

“It would be a challenge under our current laws, because we don’t presently have legal instruments that are well suited to this type of action. But I have no doubt that victims in Canada want and need a remedy here,” says Matas, an associate with Lerners LLP. “However, a major hurdle in Canada is the lack of any mechanism by which to provide victims of child pornography with notice that their images form part of an ongoing criminal case.”

The U.S. case is significant for Canada, she says, because of the Canadian government’s plan to implement a federal victims’ bill of rights and the proposed Protecting Canadians from Online Crime Act, known as Bill C-13, which is currently before the House of Commons.

“Very often the damages caused to a child who is the subject of pornography are life long,” says Matas. “Throughout their lives these victims wonder if people recognize them, or if the guy standing behind them in the grocery store line has viewed images of their abuse and violation. Our criminal restitution system does not help these victims.”

Following the tragic death of Rehtaeh Parsons, a teenager who committed suicide after years of online abuse, Nova Scotia brought in legislation that gives victims of cyberbullying the opportunity to bring a civil action for compensation against their aggressors.

“It looks to me as if the Nova Scotia legislation is broad enough to encompass a claim based on being a victim of circulating child pornography images, but it hasn’t been tested,” says Matas. “However, it’s not a perfect system, because cyberbullying has been made a tort, and as with any tort you have to prove that the defendant’s actions caused one to suffer damages, and that can be a big issue.”

It can be very difficult for victims of child pornography to prove causation, says Matas. In the U.S., courts have reached different positions on this issue.

Some courts have found that all the damage inflicted on a victim of child pornography was caused by the person who committed the abuse and have ruled the fact that John Doe is looking at a picture of that child’s abuse, often years later, isn’t causing any more harm. But other courts have found that continued viewing does cause continued harm, and have compared the continued viewing to slow drips of acid that eat away at the victim.

“The abuse is just not the physical act of taking the picture or the video, it’s the continued mental suffering caused by the distribution of your image and your abuse. This causes constant re-victimization.”

Matas says the mandate of the Child Victim Identification Project, run through the U.S. National Centre for Missing and Exploited Children, “is to help law enforcement identify victims of child pornography. This is how individuals like Amy can find out if someone has been charged for having their images.”

However, in Canada, there isn’t an organization that allows for victims of child pornography to be made aware of criminal charges relating to their images.

“It’s a glaring problem in Canada, as there is generally no way for individuals to know if someone has been caught looking at their pictures,” says Matas. “The federal ombudsman made submissions on the proposed federal victims’ bill of rights which support notice for victims, and which note that restitution is under-utilized and poorly enforced in Canada.”

Ontario already has a Victims’ Bill of Rights and it provides that victims should have access to information about prosecutions. However, this is qualified by a provision that states the notice provisions apply only where practicable, so it’s not mandatory, adds Matas. “So if someone is arrested for child pornography and they have images of 400 different children, it is unlikely that anyone will find it practical to notify those child victims, so they’re left with no way of knowing there is someone from whom they could seek restitution.”

There are some mechanisms in place that allow victims to seek compensation for their suffering, however Matas says there are limitations due to the inability of all victims to determine whether or not charges against a pedophile are based on images of their abuse. In Ontario, the Criminal Injuries Compensation Board, she says, “could be, in theory, open to victims of child pornography. However recovery is quite limited, and the maximum payout is $25,000. If you have ongoing needs,  for example therapy, the maximum you can get from the CICB is $1,000 a month.”

Unlike in the U.S., in Canada there is simply no clear starting point for victims of child pornography to seek restitution, adds Matas. But if the legal mechanisms did exist in Canada, they would be used by those affected by child pornography.

“Some victims might decide not to pursue legal action because the process might be too hard on them. But I think a lot of people would,” says Matas. “For example, for historical sexual assaults, victims often decide after a significant period of time to go to the police or start a civil action, so I think given the number of people who bring historic claims of sexual assault that it’s likely if victims of child pornography had notice of prosecutions and the legal means to pursue meaningful redress, many would choose to seek justice through restitution.”

This article originally appeared on AdvocateDaily.com

Anna Matas

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