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Ontario Court of Appeal. (Deborah Baic/The Globe and Mail)
Ontario Court of Appeal. (Deborah Baic/The Globe and Mail)

Globe Editorial

Trial judge should have viewed videotapes of rape crime Add to ...

The absurd leniency shown a Canadian soldier who raped his daughter 10 times over several years and videotaped those rapes reveals, once again, a justice system incapable of grasping the enormity of the harm done to children.

And how could it truly grasp that harm? The trial judge refused to watch the videotapes, saying that he well understood such things, from his 15 years of experience as counsel to a children’s aid society, and from his 20 years on the bench. He also said that the tapes would have had to be played in open court, and that the victim didn’t want that to happen – yet there are ways for the judge to minimize such harms.

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Amazingly, the Ontario Court of Appeal upheld, by a count of 2-1, this evasion of duty by Judge Stephen Hunter of the Ontario Court of Justice, saying trial judges are owed a good deal of deference. Yet juries often have to view grotesque pieces of evidence. On Monday, a jury in the murder of eight-year-old Tori Stafford of southwestern Ontario had to troop out to the site where her body was found. Perhaps some jurors should have begged off, citing experience with rural woodlands.

For the crime of making such videotapes, for possessing a vast trove of child pornography, and for the rapes, the father received a total of six years. (The dissenting judge would have given nine years in total.) Why so little? Because he pleaded guilty, had post-traumatic stress disorder and no previous criminal record and because it might help reconciliation.

The evidence was overwhelming, so why give credit for a guilty plea? His PTSD did not cause the crimes, a psychiatrist testified. (But the crimes would almost certainly cause PTSD.) Yes, he had no criminal record, even as he was abusing his daughter’s trust. As for reconciliation, if it is to happen at all, it needs to be rooted in a just sentence that reflects the harm done to the victim and society. The leniency, following on the two years given to hockey coach Graham James in a Manitoba court for repeated sex assaults on two teenage players, shows the courts aren’t facing up to child sexual abuse. The Crown should ask the Supreme Court of Canada to look at toughening the protection of children from predators.

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