Saskatoon man found guilty of sharing child pornography on Facebook

A judge has dismissed a charter claim alleging the man did not receive his rights and warnings before giving police passwords to his phones.

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A Saskatoon judge has convicted a man of possessing and distributing child pornography after ruling his Charter rights were not violated when police searched his phones.

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John P. Malsi, 24, was arrested on June 18, 2020 after Saskatchewan Internet Child Exploitation (ICE) officers executed a search warrant at a house on McKercher Drive.

They had received reports from Facebook that child pornography was being downloaded from an Internet Service Provider (IP) associated with that address between February 23 and May 17, 2020, Sgt. Amber Lang testified in Malsi’s single judge trial in the Court of Queen’s Bench in Saskatoon last month.

She said Malsi gave officers the passwords to her two cell phones, which contained seven images and 11 videos of child pornography involving girls between the ages of five and seven. He was told he was being charged and taken to the police station, where he called legal aid, Lang said.

Defense attorney Christopher Gratton argued that Malsi’s Charter rights had been violated and evidence seized from the phones should be thrown out. He said Lang did not tell Malsi he was being detained or inform him of his right to counsel and his right to remain silent before giving him his passwords.

Lang testified that she provided Malsi, her brother, and her parents with written copies of the search warrant, told them they were detained (but not arrested), and read them their rights. She said Malsi seemed to understand and initially agreed to call a lawyer before inexplicably changing his mind.

The family members then gave her the passwords to their various devices, she told the court.

Another officer corroborated Lang’s testimony, adding that he could possibly have extracted the data he needed from the phones without a password.

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“The fact is that law enforcement could not be stopped. Discovery of the contents of the phones was inevitable,” the judge wrote in his decision to dismiss the charter application.

Malsi testified that he felt compelled to give up his passwords before he received his Charter rights and the warning from the police. His mother said the same thing in court, although most of her testimony was consistent with Lang’s, the judge noted.

He said he did not accept Malsi’s testimony, calling it “mantra-like repetition”.

“Bringing six police officers, some in uniform, all masked, into your home at 7 a.m. must be a daunting and disorienting event. It is not surprising that their memory is not as clear as that of Sergeant Lang who, of course, led the team and took notes on the proceedings of the day, ”wrote the judge.

Gratton also argued that Malsi’s right to hire a lawyer was delayed because he did not call legal aid before being brought to the police station. Crown prosecutor Linh Lê argued that due to high emotions and a lack of secure devices at the family home, police needed to find a more secure and private environment for him to make the call.

The judge said he did not find the delayed appeal “inappropriate or unlawful”, concluding that “police conduct was appropriate and appropriate throughout”.

He admitted evidence found on Malsi’s phones and eventually convicted him of three counts of distribution and one count of possession of child pornography. His sentencing hearing is scheduled for April 8.

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