The conviction of a 17-year-old girl in a Victoria “sexting” case should serve as a warning to youths who use text messages and other forms of online communication, said Crown prosecutor Chandra Fisher.
She said the case shows that youth should be wary of what they transmit via text, especially pictures.
“They need to be careful what they send, what they send to each other and where it might end up.”
The convicted girl, who cannot be named under terms of the Youth Criminal Justice Act, has been found guilty of possessing and distributing child pornography, as well as uttering threats, in the unique case heard in Victoria Youth Justice Court.
The case involved the girl, 16 at the time, sending naked pictures via text message to her boyfriend’s ex-girlfriend and to another friend. The pictures, which were stored on the boyfriend’s phone, showed the ex-girlfriend in various revealing shots.
Fisher said the case has significance because there have been similar examples of online interaction “where young people do serious harm to themselves.”
Canadian teenagers Amanda Todd and Rehtaeh Parsons were both cyberbullied before committing suicide. Two teenagers are facing child pornography charges in the Rehtaeh Parsons case.
Defence lawyer Christopher Mackie said his next steps will include a constitutional challenge addressing whether Canada’s laws against child pornography should apply to cases involving young people.
Fisher said that means some aspects of the case are still to come. “Really, today isn’t a final decision, it’s going to be heard again down the road.”
Sentencing is also on hold.
Mackie said he is disappointed that the trial and the constitutional challenge will be at least a few months apart.
“We wanted to ideally avoid the kind of situation that we have now where my client has a conviction of child pornography,” he said. “The concern [is] that if ultimately we succeed on a constitutional argument and it’s found to be unconstitutional, then she’s had to deal with the stigma of having been painted a child pornographer for the interim.”
The girl and her family feel she has been “singled out and picked on” since she was the only person prosecuted, Mackie said.
He said the intent of federal legislation will be part of his constitutional argument.
“The Supreme Court of Canada in 2001 denoted that Parliament enacted this legislation to deal with child pornography, ie: pedophiles and the exploitation of children. So the question is whether or not it’s constitutional then to apply that regime to the phenomenon of teen sexting, which is what this is about.”
Mackie said the “ultimate argument” would be that laws haven’t caught up to what is happening with social media. He said the federal government looks poised to bring in a new law to address “gaps” — something that would seem to acknowledge “a phenomenon of teens doing things that [are] problematic and they shouldn’t be doing, and adults, as well.”
Meanwhile there is considerable “scrambling” in the legal system to deal with similar cases that come up, he said, with some leading to child-pornography charges and others to charges of harassment. “In this case, it happened to be child porn.”
Mackie said his client realizes she should have acted differently. “I think both she and her family acknowledge that her conduct, certainly it’s something she regrets. I expect if she had the opportunity to do it over again, as we all would when we make mistakes, that she wouldn’t do the same thing.”
He said the evidence indicated that neither she nor the other youths involved in the case “really realized the jeopardy they were placing themselves in.”
Still, the girl and her family have been frustrated by the case and question why the criminal justice system was involved.
“I guess that’s part of the constitutional question: Is this an appropriate way to deal with this type of phenomenon?”
Current rules can be seen as a “heavy hammer” for cases involving youths, Mackie said.
Fisher noted that there were about 36,000 text messages and 4,000 images to sift through in the case.
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The “sexting” trial of a Victoria teenager alleged to have sent nude pictures of another girl over the Internet, via texts and Facebook, wrapped up in a single day Thursday.
However, a constitutional challenge against the charges is still in the works.
The 17-year-old, whose identity is protected under the Youth Criminal Justice Act, is accused of sending explicit photos of her boyfriend’s ex-girlfriend to both the former girlfriend and a friend.
The charges against the girl include possession and distribution of child pornography because the pictures were of a minor. The accused is also charged with uttering threats through texting.
The situation started when the boyfriend moved away from the B.C. community where he was living and came to Victoria, breaking up with his old girlfriend in the process.
Crown prosecutor Chandra Fisher said in Youth Justice Court that the accused was aiming to “mock and ridicule” the ex-girlfriend by sending the photos.
The accused had testified that her boyfriend was still in touch with his former girlfriend and she didn’t like it.
The accused had heard that the ex-girlfriend was pregnant, and is alleged to have written nasty text messages about wanting the baby to come to harm.
Some of her comments were deemed threatening by the prosecutor, including a warning that the former girlfriend would be “stomped” if she ever showed up at the accused’s Victoria-area high school.
Defence lawyer Christopher Mackie countered that it is hard to say whether any of the comments went beyond teenage “trash talking.”
The lawyers pored over pages of text messages during the questioning of witnesses.
“In any case of this nature, there’s a lot of ‘he said, she said,’ ” Mackie said outside court.
Judge Sue Wishart is scheduled to give her decision today. If the accused is found guilty, a sentencing hearing will follow.
Mackie said that if there is a guilty verdict, constitutional arguments about the case likely will be presented in a few months.
The defence lawyer is expected to argue that it is unconstitutional to charge youths who engage in sexting with child-pornography offences because sexting — sending sexualized or erotic images — is lawful for adults.