Deference to trial judge
on whether to watch
disturbing images
CHRISTOPHER GULY
A split decision by the Ontario
Court of Appeal in a case of a
father sexually assaulting his teenage daughter, has sparked debate
on whether a judge should be
required to view evidence for the
purposes of sentencing, when an
accused has entered a guilty plea.
In a 2-1 judgment in R. v.
P.M., 2012 ONCA 162, the Court
of Appeal ruled that the trial
judge did not err in refusing to
view a disc containing disturbing
images of child pornography and
videos of the accused sexually
assaulting his teenage daughter.
The disc had been filed as an
exhibit and the Crown argued
that Justice Stephen Hunter was
required to view it, as he would
any other piece of real evidence.
Justice Hunter concluded that
based on his nearly 20 years on
the bench and 15 years prior as
“The assessment of the nature of the offender’s
specific offences is an adjudicative fact central to
the determination of the sentence and should not
be determined by reaching outside the record and
into one judge’s prior professional experience.”
Justice Gloria Epstein
Ontario Court of Appeal
Epstein
counsel to the Children’s Aid
Society, he had seen several videos of a similar nature. As a
result, the statement of facts to
support a plea was sufficient to
impose a sentence against P.M.
The majority of the Court of
Appeal panel stated that defer-
ence must be shown to the deci-
sion of Justice Hunter
“The trial judge, by reason of
“experience and judgment from
having served on the front lines
of our criminal justice system”, is
in the best position to decide
what evidence is required to
determine a fit sentence and to
decide how, and in what manner,
the evidence should be received,”
wrote Justice Marc Rosenberg,
with Justice James MacPherson
concurring.
