Vol. 77, No. 1External submissions

Beyond a reasonable doubt

Partnerships key to successful prosecution

Vancouver police investigators work with NGO staff in Phnom Penh, Cambodia. Credit: Vancouver Police Department

By

On December 2, 2003, the Vancouver Police Department (VPD) Sex Crimes and Child Abuse Unit initiated an investigation into serial rapist Donald Bakker. Bakker was arrested after he sexually assaulted and tortured a local sex trade worker in Vancouver's downtown eastside (DTES).

During the course of the subsequent investigation, investigators recovered videos that appeared to depict Bakker raping and torturing up to 57 more drug-addicted, vulnerable women from the DTES. Investigators also discovered three video segments in which Bakker was raping young Asian children.

The children appeared to range between four and 10 years of age. In each segment, Bakker was raping three children at a time. The children spoke no English, leading investigators to believe the offences likely occurred in Asia.

The case grew exponentially on the discovery of the videos. Essentially, it was broken up into three parallel investigations:

  • The rape and torture of the women in the DTES
  • Bakker's background and comparing his movements to unsolved crimes in Canada
  • The overseas sexual assaults against children

This third portion of the investigation ultimately led to the first successful prosecution under Canada's child sex tourism legislation.

Section 7(4.1) of the Criminal Code of Canada allows for the Canadian prosecution for specified sexual offences against children that occur outside the territorial jurisdiction of Canada.

In 1997, the legislation was amended, removing the requirement to prove the purchase of sexual services of a minor; however the consent of the country in which the offence occurred remained in effect. In July 2002, the legislation was amended yet again, removing the requirement to have the consent of the host country prior to launching a Canadian prosecution.

Investigative challenges

Although police could see what Bakker had done, they couldn't prove the essential elements of a criminal charge. The children looked to be under 14 (the age of consent at the time), but they were likely from an impoverished land where children develop at different rates than in North America. Without proving the children's ages beyond a reasonable doubt, there could be no criminal prosecution.

Even assuming the children's ages could be proven and consent was no longer a potential defence, investigators still needed to prove when and possibly where the offences occurred. If the offences occurred prior to July 2002, investigators would need to identify the country in which Bakker offended so their officials could formally agree to a Canadian prosecution.

Investigators conducted traditional investigative queries but found no leads. The videos were filmed indoors so there were no landmarks or other identifiers in the background. Forensic analysis of the videotapes yielded no probative information.

Bakker's passport was examined, but he had travelled extensively throughout Southeast Asia several years in a row. The children in the video spoke a mixture of Khmer (the Cambodian language) and Vietnamese, but because many of these children are trafficked from country to country, this was of limited value.

International resources

It became apparent that police resources alone would never find the evidence needed to convict Bakker, so investigators turned to non-police experts and international resources for assistance.

In the hope that someone would recognize one or more of the children, investigators isolated 19 facial stills of the children. They also isolated hundreds of background images from the three rooms in which Bakker had molested the children.

Investigators believed the most crucial element was the ages of the children. Unable to find any local experts to provide a definitive opinion on their ages, investigators researched methods of measuring sexual maturation rates of children.

Investigators could find only one study on the maturation rate of ethnically Asian children outside of North America or Europe. This study, conducted by North Carolina Pediatrician Dr. Sharon Cooper, studied the maturation rates of children growing up in developing countries where malnourishment and childhood disease are endemic. Investigators contacted Dr. Cooper, who agreed to view the images of the children and provide an expert opinion on their ages.

Meanwhile, investigators sought resources to identify the children and the scenes of crime. Through a plea to regional Canadian police contacts for assistance, investigators were referred to a civilian RCMP tool mark examiner, Brian McConaghy. McConaghy had founded several charities in Cambodian communities since the early 1990s.

He agreed to view the images and provide whatever assistance he could. McConaghy observed a distinctly Khmer (or Cambodian) pattern on a scarf in the background of one of the videos. He also noted the corner of a poster that appeared to be written in the Khmer language. These and other clues led him to believe the crimes likely occurred in Cambodia.

McConaghy provided VPD investigators with contacts for a number of non-governmental organizations (NGOs) in Cambodia. These included human rights organizations, health care providers and caregivers for children rescued from sexual slavery. Investigators contacted these NGOs and determined which of them had the potential knowledge and/or capability to assist the VPD investigation.

Four NGOs were selected and contacted. Investigators sent the 19 assorted facial stills and hundreds of background stills from the videos to these selected NGOs. Within weeks, all four independently identified that there were only seven children, not nine as initially believed, and the names and ages of the children.

By the time VPD investigators received these identifications, they had also determined through facial recognition that there were only seven children. They concluded that one child appeared in all three of the video segments.

The children were between four and nine years old at the time of the crimes. Several had been rescued from sexual slavery the previous spring in a joint undercover operation between one of the NGOs and a special unit of the Cambodian National Police.

VPD investigators had also received the expert opinion from Dr. Cooper by this time. Her report similarly concluded there were only seven children, and her age estimation for each child was within a year of their actual ages.

Investigating overseas

The undercover operation and rescue of the children occurred in the town of Svay Pak, Cambodia. All four NGOs indicated the town, and two tentatively identified rooms that were inside brothels in Svay Pak. Satisfied that sufficient evidence now existed to prove the essential element, investigators decided to send an investigative team to Cambodia to secure this evidence in a manner meeting the requisite standard of Canadian courts.

There was no precedent for this type of investigation. The cultural and bureaucratic differences between Canada and Cambodia are immense. Because Canadian police have no jurisdiction in Cambodia, both Canadian and Cambodian government permissions and assistance were required.

VPD investigators sought access to the tentatively identified crime scenes, and sent select evidence from their investigation to Cambodian National Police to support this request.

Investigators again turned to Brian McConaghy for guidance and assistance. When VPD investigators ran into bureaucratic roadblocks, both in Canada and abroad, McConaghy provided contact information for officials who could expedite the process. When selecting team members to travel to Cambodia, he provided cultural and sociological perspectives so completely foreign to Canadian values that they hadn't even been considered. When VPD investigators received communication from Cambodian officials and NGOs, he interpreted the nuanced messages contained within, advising on the hidden meanings and suggesting how best to respond.

The diplomatic discussions continued for several weeks, and it soon became clear that investigators would have to meet with Cambodian officials directly to secure the necessary permissions. Without guarantees of access to crime scenes or witnesses, the VPD investigative team left for Cambodia. The relationships the team had built with Cambodian officials and NGOs over the past few months truly proved their worth.

After a series of meetings, the Cambodian government agreed to assist the VPD team. Based on the information provided by the VPD, the Cambodian National Police obtained a warrant authorizing a search for evidence to confirm the scenes of crime. The Canadian Ambassador allowed VPD investigators to interview witnesses in the embassy so statements could be taken in Canadian jurisdiction. NGOs brought witnesses to the embassy for their interviews and they provided vehicles, drivers, interpreters, office space, equipment and expertise.

VPD investigators interviewed dozens of witnesses who could identify the children and testify about their ages. The Cambodian National Police escorted the VPD investigative team to the village of Svay Pak to execute the warrant. VPD investigators, with the assistance and authority of the Cambodian National Police, located the two rooms already tentatively identified, and also the third room depicted in Bakker's videos.

The VPD investigative team took hundreds of photos of the interiors of the rooms and compared them to specific markers and characteristics noted in the background stills. While documenting the rooms, VPD investigators found the same poster that was partially visible in Bakker's video.

The poster was actually a 2003 calendar that was printed and distributed by a local NGO operating a medical clinic in Svay Pak. While in Cambodia, VPD investigators contacted both the medical clinic and the printing company, determining that these posters were first printed in November 2002. This evidence proved the offences occurred at least four months after the latest amendment to the sex tourism legislation.

On May 22, 2004, less than six months after the arrest of Donald Bakker in the DTES, VPD investigative team returned to Canada with evidence to secure Canada's first conviction for child sex tourism.

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