Court mulls if child pornography meets dangerous offender assessment test

Thirteen years ago, James S. Millie was sentenced for what the Crown then called “a horrendous case of child exploitation.”

Having taken 31 graphic photos of himself engaged in sexual acts with a very young girl — and then sending the photos to a man in the United States — Millie, then 36, was handed a four-year prison sentence for that and other child pornography offences.

He avoided further criminal trouble until 2019, when he was tagged by the National Child Exploitation Crime Centre (NCECC) and the province's internet Child Exploitation (ICE) unit for possessing, accessing and making available child pornography.

Millie pleaded guilty to all of those most recent offences. The Crown has launched proceedings to determine whether he might be deemed either a dangerous (DO) or long-term offender (LTO).

But the matter isn't that straightforward. A Regina judge is now to decide whether she can, by law, request a DO assessment — the first necessary step to proceedings.

The issue, as raised at Regina Court of Queen's Bench last week, is whether child pornography offences without a “hands-on” element — such as Millie's current offences — count as a serious personal injury offence (SPIO).

“One concern I have is that if in order to order a dangerous offender assessment — I have to be satisfied that it's a serious personal injury offence — by making the order, I'm creating a precedent or jurisprudence,” said Justice Catherine Dawson.

While it's expected she'll order an LTO assessment in any case, she wanted to consider whether she can also order the assessor to complete a DO assessment.

Defence lawyer Rod Simaluk didn't oppose Crown prosecutor Roger Decorby's request for the assessments. Dawson is expected to issue a decision next week.

Under the Criminal Code, Millie's current offences are within the parameters of the LTO section. A LTO designation typically involves a prison term followed by a period of long-term supervision.

On the other hand, a DO designation could result in either a standard sentence, an LTO -type sentence or an indeterminate sentence. But under the Criminal Code, the route to a DO finding is different. One of the routes — and the one in question here — involves an offender who has been convicted of an SPIO while showing a pattern of persistent or repetitive behaviour and a failure to restrain his or her actions.

Decorby said the hope was for the assessments to be ordered and for any SPIO issue debate to be dealt with at the hearing, set for October.