Judge reserves decision on intimate-videos case

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This article was published 28/02/2024 (825 days ago), so information in it may no longer be current.

BRANDON — Closing arguments in provincial court Tuesday wrapped up the trial of a man accused of making intimate videos of his ex-fiancée publicly available on a porn site without her consent.

The trial began in July, but was paused for the judge to make a decision after the defence brought a no-evidence motion upon conclusion of the Crown’s arguments. After hearing Tuesday’s arguments, the judge will again take more time to make her final decision on the case.

The accused is a Brandon businessman, but a court-imposed publication ban intended to protect the identity of the victim also prevents naming of the accused.

The 35-year-old pleaded not guilty to making available an intimate video recording of his ex-fiancée.

During the trial last year, the Crown called three witnesses, including the victim, who testified she became aware that intimate videos of her and her former partner were posted on Pornhub after she was sent a link to Pornhub by her former partner on Aug. 20, 2020.

The complainant testified that she did not know the Pornhub account with the videos existed. She did say she had consented to the filming of some of the intimate activities depicted in the videos.

Two police officers also testified about their knowledge of the Pornhub platform and how the videos were connected to an email account with the accused’s name.

The profile was listed as having seven subscribers and 18 friends, one officer testified.

The defence did not call any witnesses, nor did the accused take the stand.

The Crown’s closing arguments focused on the victim’s testimony that while she did give consent to making the videos, she did not consent to them being uploaded on Pornhub.

The Crown pointed to the subscribers and friends on the account and argued that the video was visible to others and uploaded for the purpose of sharing.

“(The accused) should have known by putting these videos on a subscriber group that they could have been viewed by at least one person,” Crown attorney Yaso Mathu said on Tuesday.

The prosecution also noted the production order, required for police to access the videos from Pornhub, had been granted to police.

This meant that someone at Pornhub would have access to the videos to send them to police, and that the videos therefore were shared with someone the complainant did not consent to.

The accused’s defence lawyer, Andrew Synyshyn, reminded the court that the burden of proof was on the Crown and not for his client to take the stand and explain his actions.

He disagreed with the Crown making inferences about the accused’s reasoning for uploading the videos and said his client would not have foreseen a Pornhub employee accessing the videos to give to police.

He argued his client uploading the videos to the pornography site was a reasonable step for protecting the videos, which had been stored on his phone. The phone was often used by his children and the accused would not want them to accidentally stumble upon the videos, Synyshyn said.

He likened the situation to someone storing the Mona Lisa, an original item of value that someone could keep under their bed in a locked box, but could also move to a locked closet if that person decided they wanted to view it more often.

“If I’m allowed to have the picture, I’m allowed to have a look at the Mona Lisa, do I not have some level of saying of where and how I keep that picture?” he said.

However, the Crown rebutted Synyshyn’s argument, turning his analogy of the famous painting against him.

“In this case, the accused took the Mona Lisa, put it in something that looks an awful lot like an art gallery, but insists he had no intent for anyone to come and see it,” Mathu said. “Even though there’s a membership list and a subscriber list to that art gallery.”

Judge Shauna Hewitt-Michta reserved her decision.

—Brandon Sun