Ontario's highest court has split over the question of whether a judge is obliged to view highly disturbing evidence before sentencing an offender.
The 2-1 split in favour of allowing a judge to avoid a full viewing of the evidence sets up the distinct possibility of an appeal to the Supreme Court of Canada.
The evidence in the case took the form of explicit videotape of a man sexually assaulting his daughter while she begged him to stop.
Ontario Court Judge Stephen J. Hunter declined to watch a compilation of several videos taken by the defendant. He said that he could well imagine what the tape depicted, given his 20 years on the bench and 15 years as a lawyer for a children's aid society in Eastern Ontario.
"I have seen and been exposed to significant examples of the type of behaviour here," Judge Hunter said.
The Crown appealed a six-year sentence imposed on the offender, arguing that the trial judge would likely have levied a harsher term had he seen the video.
The two-judge majority in the Court of Appeal sided with Judge Hunter, saying that he fully understood the enormity of the crime even if the sentence was relatively lenient.
However, Madam Justice Gloria Epstein wrote in dissent that, after watching the video herself, it became clear that it conveyed a more profound sense of depravity and exploitation than had emerged through other evidence.
The victim was raped about 10 times between the ages of 13 and 14. Her 37-year-old father – a former member of the Canadian military who had served in Bosnia and Afghanistan – was also found to have a large collection of explicit child pornography on his computer.
The defendant pleaded guilty to sexual assault, incest, possession of child pornography and sexual interference.
The defendant cited serious stress resulting from his military career as a mitigating circumstance. He received treatment for anger management, post-traumatic stress syndrome, depression and substance abuse.
The Court of Appeal – Mr. Justice Marc Rosenberg and Mr. Justice James MacPherson – said Judge Hunter also declined to view the video to show sensitivity to the victim, who had indicated that she would rather it was not shown.
While the offender's post-traumatic stress disorder did not cause him to commit the offences, the majority judges said, his mental turmoil had to be considered in arriving at a fit sentence.
"It is hardly for this court to decide how the trial judge presiding over a busy trial court should manage sentence hearings," Judge Rosenberg and Judge MacPherson said. "Provided the judge exercises the discretion reasonably and gives the parties the opportunity to fully present their positions, this court ought not interfere."
But Judge Epstein said the video contained key information that was not available elsewhere, including the fact that the offender had not used any form of protection when he assaulted his daughter.
"In the circumstances of this case, and on this record, I am of the view that the important aspects of the nature and gravity of the sexual offences could only have been obtained by direct observation of the contents of the disc," she said. "Once admitted, the trial judge was obligated to review the contents of the disc."
Judge Epstein also broke ranks with her colleagues on the proper sentence for the offender, saying that nine years would have been more fitting.
"The offender's abuse of his young daughter was horrendous and prolonged," she said. "His abuse of the countless other victims depicted in his child pornography collection is serious and, given the preparedness of depraved individuals to use the internet to share their passion for child pornography, must be strongly condemned."