No 'double jeopardy' for Saskatoon man accused of making child porn

Justin Gerard Gryba recently served a jail sentence for possessing and making available child pornography, but the Saskatoon man who believes he’s been charged twice for the same crime won’t have his new child pornography charges thrown out.

On Friday, Chief Justice Marty Popescul dismissed Gryba’s rare pleas of autrefois convict and autrefois acquit, which claim he had been previously convicted and acquitted of the same offences of which he is charged. If Popescul had accepted the pleas, the case would not have gone to trial.

Instead, Gryba was ordered to enter new pleas of either guilty or not guilty to his seven charges at a later date.

The 27-year-old was charged in September 2014 with one count of accessing child pornography, two counts of possessing child pornography, two counts of making child pornography and two counts of voyeurism. They were laid after police were able to crack two of Gryba’s hard drives that, according to the Crown, had “military grade encryption”. It took them two years to do so.

Court heard the hard drives contained 18,961 child pornography images and videos. Some of the videos showed nude boys in pool and hotel change rooms, and another video was taken of a young boy urinating in the bathroom of a home.

According to police, most of the videos show Gryba holding a small recording device and focusing on the boys’ genitals.

The files were discovered two years after police originally seized the computer devices in 2012. Other files found during that initial investigation led to Gryba’s first set of child pornography-related charges. He received a two-year sentence in 2013 after pleading guilty to one count of possession of child pornography and one count of making child pornography available to other users. The Crown stayed two other charges.

Court heard how the sentencing judge in that case clearly stated that whatever was contained on the locked hard drives would “form no part of the sentencing” and would be the subject of further charges if they were cracked.

Gryba’s lawyer said the plea of autrefois acquit applies to the stayed charges, which he argued could be seen as the equivalent of an acquittal. Popescul disagreed.

He also disagreed that Gryba had already been convicted for the same offences he now faces.

In the case of arguing autrefois convict, the defence said some images found on the encrypted hard drives were duplicates of the ones found in the original case. The accused also argued that the videos found on the hard drives were linked to other computers and proves they should have been found during the initial investigation.

But even if police were aware of those “links” it doesn’t mean they would have been able to gain access, Popescul said.

The child pornography found on the encrypted hard drives was “over and above” what the accused was previously sentenced for, Popescul said, adding the charges of voyeurism and making child pornography are very different from what Gryba pleaded guilty to back in 2013.

“The accused could not have been convicted of any of the charges he now faces at the time of the original sentencing because the Crown did not know what was in the hard drives until the police gained entry,” Popescul wrote in his decision.

“The charges … are both factually and legally different than the original charges. They relate to different factual transactions involving different victims that took place on different days.”

Gryba will be back in court at the end of the month.