Getting Away From the “Representative Sample”: A Trauma-Informed Approach to Presenting Unlawful Pornography in Court
Exposure to unlawful forms of pornography, such as child pornography, can be traumatizing.
R. v. Shaw, 2018 ONCJ 61 (CanLII).
On most occasions, it is unnecessary for the judge to view the child pornography that comprises the subject matter of a charge or even for the Crown to select a representative sample of images from the child pornography collection to show at the sentencing hearing.
Defence and Crown counsel should do their best to agree to a mutually satisfactory verbal description of the contents of child pornography so as to protect courtroom participants (including themselves, the judge, and victims) from unnecessary exposure to potentially trauma-inducing raw material.[FN]
R. v. Marratt, 2019 ONCJ 618, per Band J;
See also R. v. Shaw, 2018 ONCJ 61, per Band J.
This can even be taken a step farther. In the appropriate case, once the parties have agreed to present the evidence in a summarized verbal form, they should be canvassed as to whether it can simply be filed as a written exhibit to be reviewed by the judge alone.
Where counsel does wish to present the evidence, the presiding judge or counsel should provide a warning concerning its nature. That way, court staff and victims can raise any concerns with the presiding judge. This will also allow members of the public to decide whether or not to remain in the courtroom.
Written by Stuart O’Connell (Barrister/Solicitor).
[FN] This approach is permissible in certain circumstances. Among the relevant considerations are the existence of an agreement between the parties as to the facts and whether, owing to his or her professional experience, the sentencing judge is able to “fully appreciate the sickening horror of such pornography”: see R. v. M.P., 2012 ONCA 162 (CanLII).