SELECTED CASE LAW
ONTARIO:
In 2012 ONCA 162, Mr. M, a 37-year-old man, pleaded guilty to incest, sexual assault, and making and possessing child pornography in relation to his teenage daughter.
When his daughter was between 13 and 14 years old her father repeatedly vaginally and anally assaulted her, masturbated and ejaculated on her, and filmed some of the incidents. His daughter told someone about the sexual abuse and a search of his home resulted in videos and photos of the assaults, as well as around 1,800 other images of child pornography, including images of forced sexual interactions.
Mr. M was a high-ranking military officer who stated he had begun sexually fantasizing about his daughter to disassociate from the stress of serving in Afghanistan. He was diagnosed with post-traumatic stress disorder. However, his PTSD and use of malaria drugs to self-medicate were not thought to have caused Mr. M to abuse his daughter.
Mr. M was sentenced to six years in jail. The Crown appealed the sentence, arguing the judge should have viewed the videos of the abuse to understand the seriousness of the offences and that a six-year sentence was not long enough.
On appeal the court stated:
In this case, the trial judge was presented with a difficult and troubling issue. The images copied on to the disc contained video of the victim actually being assaulted by the offender. The victim was present in court and the trial judge was of the view that she had the right to be present during the proceedings. The judge was also of the view that the offender’s right to be present during the proceedings required that if the judge was to view the disc he would have to do so in the offender’s presence and, it followed, in the victim’s presence. It would have been open to the judge to take steps to limit the exposure of the child pornography, including the images of the assaults on the complainant, to the public. Even so, the viewing of the disc showing the sexual assaults of the victim could cause additional trauma to the victim. The judge was sensitive to this fact and this was a proper consideration.
[…]
The [Crown] makes much of the fact that the trial judge sought the views of the victim as to whether he should look at the contents of the disc. Counsel argues that the trial judge should not have let the views of the victim determine the decision. But this is not what occurred. While the trial judge sought the views of the victim, he made it abundantly clear that it was his decision not hers. It was not wrong for him to take those views into account. He did not defer to her wishes. The courts are becoming increasingly more sensitive not just to the impact of crimes upon the victim, but of the criminal process itself. It is not wrong for the trial judge to involve the victim in the process, provided that involvement does not interfere with the orderly presentation of the case, or unfairly interfere with the rights of the parties to a fair hearing.[1]
The Court of Appeal found that the judge did not make a mistake in not watching the video. The trial just didn’t watch the video in part to protect the daughter from the experience of the film being shown in open court. The images had been described in detail and the trial judge had extensive experience with child pornography in his career, and found the sentence to be fit for the offence.
Also see: [2012] SCCA No 242 (Leave to appeal).
Criminal Offence(s): Sexual Assault
[1] 2012 ONCA 162 at para 34 & 36.