Should judges have to view graphic evidence?

Hey there, time traveller!
This article was published 04/11/2015 (3803 days ago), so information in it may no longer be current.

Three years ago, the Supreme Court of Canada rejected a request by an Ontario Crown attorney to challenge a decision by a judge in Ontario’s Court of Appeal not to view graphic video before delivering a sentence in a sexual assault case.

The Ontario case in question involved a father that had been convicted of raping his teen daughter, and shooting video of the acts as he committed them. As Sun Media reported, the girl had been raped about 10 times between the ages of 13 and 14.

Evidence showed that her 37-year-old father, who had served in Bosnia and Afghanistan as a member of the Canadian military, had a large collection of explicit child pornography on his computer. Throughout the videos, the child victim begged her father to stop the rapes.

Prior to being sentenced by judge Ontario Court Judge Stephen J. Hunter in September 2010, the man pleaded guilty to sexual assault, incest, possession of child pornography and sexual interference. But before meting out a sentence, Judge Hunter declined to view video evidence that had a direct bearing on the case, stating that he had seen enough graphic sexual assault evidence as a former lawyer for the local children’s aid society, and that he didn’t need to see any more.

This sparked a debate over whether a judge is obligated to view all video evidence before arriving at an appropriate sentence, and prompted the Crown to bring the issue to the Ontario Court of Appeals, which ultimately upheld the original decision 2-1. Crown attorney Lee Burgess argued that Hunter’s failure to review explicit videotape skewed his ability to draft a balanced sentence. In essence, he believed that had the judge actually seen the videos, he would have issued a harsher penalty than the six-year jail sentence the father was given.

Burgess eventually sought leave to bring his challenge of the decision to the Supreme Court of Canada. But by refusing to hear the case, Canada’s highest court effectively defended the right of the Belleville judge to refuse to view graphic video in a child sex abuse case. No reasons for the rejection were given, leaving courts to fend for themselves when handling sensitive matters.

“I think all of us in the justice system could have benefited from some guidance in this area,” Burgess told reporters. “Undoubtedly and unfortunately these issues will have to be addressed again by the courts.”

It seems Burgess’ comments were prophetic, for within the last two weeks, two different Manitoba judges have decided to challenge the need for judges to view child porn during sentencing.

Winnipeg Judge Brent Stewart last week questioned the need to see videos made by a man who recorded his molestation of a sleeping child, and who secretly recorded unsuspecting children in bathrooms and changing rooms. Stewart said there had to be a legitimate reason for showing the videos other than simply being inflammatory, and asked the Crown attorney for case law that showed he was required to do so.

He was then joined this week by Brandon Judge John Combs, who was presiding in the case of an intellectually challenged man, Kenneth Andrew Lippett, who was caught with child porn after dropping his computer off at a repair shop. The pictures and videos in question depicted boys and girls aged two to 14 years involved in a wide range of sex acts.

As we reported, Combs questioned the need to view the material at all, given his experience and a written description of some of the images that was provided. Although Crown attorney Rich Lonstrup politely insisted that the judge view the material, Combs asked Lonstrup to limit the display of child porn, keeping it as brief as possible. Lippett was given nine months in jail and two years of probation, with limits to his contact with children under 16 years old.

But Judge Combs maintained it was unnecessary.

“I would just like to place on the record … that this judge doesn’t need to see them.”

No doubt the three judges in these cases believe they have seen enough horrific sexual imagery in their careers to last them a lifetime, and can well imagine what the videos would look like, based on a description from a Crown attorney.

But we have to wonder if justice is actually being served when and if judges start refusing to see all the evidence at hand. Certainly no ordinary person wants to see these kinds of films and images, but should not the role and duty of a judge be to fully appreciate the victimization of children when determining a sentence? 

In this digital age, these are tricky issues for judges and lawyers to handle, ones that do not come with perfect or easy answers. We find ourselves in agreement with Burgess, that Canada’s courts could have used a little guidance from the Supreme Court in these kinds of issues.

If the need for judges to view distasteful evidence continues to be challenged in court, we humbly suggest that Canada’s highest court should change its mind and make a ruling.