Sask. appeal court overturns breach charge against child sex offender, but his sentence is unchanged

·2 min read
Gabriel Michael Fisher's conviction that he breached a prohibition has been overturned on the grounds that he wasn't discussing child pornography using a digital network as outlined in his prohibition order; it was a telephone service. (Gajus / Shutterstock - image credit)
Gabriel Michael Fisher's conviction that he breached a prohibition has been overturned on the grounds that he wasn't discussing child pornography using a digital network as outlined in his prohibition order; it was a telephone service. (Gajus / Shutterstock - image credit)

Saskatchewan's Court of Appeal has overturned a child sex offender's conviction for breaching an order of prohibition when he listened to voicemail messages describing graphic sexual activity about children, but his sentence remains unchanged.

In July 2020, Gabriel Michael Fisher, formerly known as Kevin Hudec, was convicted with accessing, possessing and making audio recordings that constitute child pornography.

He was also convicted of breaching an order prohibiting him from accessing child pornography through the internet or a digital network. The breach charge stemmed from him using using what is described in court documents as a telephone chat service for men over 18 years old on which he could record and listen to messages.

Fisher admitted that the messages from the service were "sexual in nature."

He was an inmate at the Oskana Centre, a federal community correctional centre, when he was accessing the service.

Regina police found he made 346 calls to the service in a 46-day span.

When Regina Police Service officers accessed the account, as agreed to by Fisher, they found 46 messages totalling more than two hours in length.

An appeal court overturned the breach conviction last week, finding that the voicemail messages did not breach the conditions of his prohibition.

Court documents say Fisher was prohibited from using "the internet or any other digital network" to access child pornography or participate in chat rooms, among other forums, that discuss or promote it.

Fisher argued that the chat room was not a digital network because it was accessed by telephone.

In a conversation between a police officer and the company that runs the service, a representative of the company said it did not constitute a digital network.

 

The appeal court's decision to overturn the decision rested on that wording, saying the 2020 trial judge "found that the fact that Interactive Male was a chat room, which Mr. Fisher accessed using a telephone in order to access child pornography, was sufficient to support a breach of the order of prohibition," court documents said.

"This interpretation would be correct, if the order of prohibition required him to abstain from using a telephone to access child pornography or related chat rooms. But that is not how the order reads."

Despite the acquittal, Fisher's 90-month sentence will not change. The appeals court ruling says his breach sentence was concurrent with his sentences for the other convictions, meaning they were to be served at the same time, as opposed to consecutive sentences which are served one after the other.

Fisher has previously faced other child pornography related convictions and a sexual assault conviction.

In 2016, under the name Kevin Hudec, he became the first person in the province to receive long-term offender designation after being convicted of child porn-related offences.

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