Fearing vigilantes, judge protects privacy of Alberta sex offender

An Alberta judge independently decided last month to withhold the identity of a man he had convicted of internet luring.

A mandatory publication ban protects the victim, who was only 11 years old when she began exchanging highly sexual text messages with a man old enough to be her grandfather.

It does seem to run counter to that general principle of the openness of the court system.-Sean Sinclair, media lawyer

No one asked Court of Queen's Bench Justice Brian Burrows to shield the accused's name.

When CBC News asked why he had done so, Burrows issued a two-page document titled "Supplementary Reasons for Judgment." In it, he quoted himself from the court transcript.

Judge feared 'vigilantism'

"In the judgment, I have anonymized the accused," Burrows said in court on Oct. 25. "I've done that because on my own motion without anybody suggesting that I should … because of the nature of the allegations. I think [of] the recent news of vigilante reactions to such allegations. So I have used initials for the accused's name."

Burrows's decision appeared to take the Crown prosecutor and defence by surprise.  

Neither lawyer would comment on the record about the decision to protect the man's identity. CBC News contacted media lawyers outside Alberta for reaction.

"Well, it's certainly an unusual decision," Saskatoon media lawyer Sean Sinclair said. "It does seem to run counter to that general principle of the openness of the court system."  

A sexual assault victims' advocate and the founder of Little Warriors, a Canadian national charity dedicated to the awareness, prevention and treatment of child sexual abuse, was even harsher in her assessment.  

"You know, I think it's not only an insult to the process, but it's also an insult to the victim," Glori Meldrum said.

'It makes the conviction toothless'

"I believe this particular judge is going in the wrong direction," Vancouver media lawyer David Sutherland said.  

"Creep Catchers arises because the justice system isn't catching or deterring these perverted perpetrators," Sutherland said. "Luring of young victims continues. With all due respect to Justice Burrows, the existence of Creep Catchers is not a basis to anonymize the accused.

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"Somebody's got to think of the kids that get lured. Basically, the courts are kind of covering up for the perpetrator. It makes the conviction toothless."  

Sinclair said that in his experience, the decision appears to be unprecedented.

"I haven't seen it in this context," he said. "Where a judge on his own motion, without any evidence, it appears, having been tendered, decides on his own volition to anonymize a decision to protect the person who's been convicted."  

Both lawyers agree Burrows had "inherent jurisdiction" or the right to anonymize the name in his decision. But both also believe the decision does not prohibit others from publishing the accused's name.  

"It looks to me that he anonymized his own decision," Sinclair said. "But he doesn't suggest that nobody else can publish the name. He just didn't publish the name in his own decision."

CBC News obtained the perpetrator's name from the court record, and examined the file to ensure no publication ban was in place. The court record shows that Kenneth Blake Rode, 53, was the man convicted on one count of internet luring of a person under age 16.

Rode is now serving a 15-month jail sentence.  

Facts of the case

The case began in January 2015, when the parents of an 11-year old girl (referred to in the decision as AB) went to the Edmonton police. They told police they had discovered "their daughter had engaged in sexualized conversations with unknown persons on the internet."  

By the time her parents found out, AB and Rode had engaged in as many as 10 sexually charged online conversations, which included the exchange of graphic photos of their private body parts.

An undercover RCMP officer with the Alberta Integrated Child Exploitation Unit took over AB's account and pretended to be the girl. He let Rode know he was a girl under age 12.  

On Jan. 7, 2015, Rode and the officer posing as AB agreed to meet. The truck driver from southern Alberta was in Edmonton overnight and wanted company.

"Hey, if you here come cuddle up with me and ser (sic) what happens," Rode's text message read.

The undercover officer dropped many clues about age, saying boys she knew still played Pokemon, that she was too young to drive but the tallest in her class and that she was still a virgin.  

None of it deterred Rode.  

"The offer still stands," he wrote.  

The married truck driver sat in a Tim Hortons waiting to meet the young girl he wanted to have sex with. Instead, three police officers came in and arrested him.

When Rode testified in his own defence, he insisted he thought he was dealing with a mature woman online. Burrows didn't believe him, but he still protected Rode's identity.

'It makes me angry'

"The public deserves to know who these offenders are," said Meldrum. "When it comes to safety, it should be kids and the public first. The convicted offenders should be at the last of the list.

"This guy has now been convicted of trying to lure this young child. I don't think he deserves the right to be protected from the public and from the media."

In his decision, Burrows said he was concerned about vigilantism. But Meldrum said that doesn't make sense to her.

"I have never heard of anything on the vigilantism side that an offender has been put at risk," she said. "It's definitely not common."  

Burrows is now a semi-retired judge. He has presided over many high-profile cases throughout his career, including the convictions in 2009 of Dennis Cheeseman and Shawn Hennessey in the deaths of four RCMP officers. He also acquitted a young teen in 2013 on murder charges in the so-called Bosco Homes case.