Court File and Parties

Court File No.: CR-24-0094-0000 Date: 2024 10 28 Ontario Superior Court of Justice

Between: His Majesty The King – and – M.E.

Counsel: M. McGuigan, for the Crown R. Geurts and J. Gilbert, for the Accused

Heard: October 15, 2024

Ruling on Whether the Court Should View the Images and Videos of Child Pornography

Conlan J.

[1] On August 23, 2024, the offender, M.E., pleaded guilty to and was found guilty of count 2 on the Indictment dated March 20, 2023 – possession of child pornography contrary to section 163.1(4) of the Criminal Code.

[2] A presentence report was ordered, which report has now been completed and has been reviewed by this Court. The sentencing date is November 14, 2024.

[3] In advance of the sentencing hearing, on October 15, 2024, counsel gave brief oral submissions to the Court on the narrow issue of whether I should view a selection of the child pornography images and videos in question. The Crown submitted that I should, while the defence argued that it was unnecessary to do so.

[4] After careful reflection, I have decided not to view the images and videos.

[5] In my view, a leading authority on the issue presented is the decision of the Court of Appeal for Ontario in R. v. P.M., [2012] O.J. No. 1148, 2012 ONCA 162. In that case, the offender pleaded guilty to several offences including making and possessing child pornography. The judge imposed a global sentence of six years’ imprisonment. At the sentencing hearing, the judge declined the Crown’s request for him to view a video sampling of the child pornography in question. The Crown’s appeal as to sentence was dismissed by the majority. It was held that the judge did not err in finding that the prejudicial effect of him viewing the video sampling of the child pornography in question outweighed its probative value, and it was further held that there was no reason for the Court of Appeal to interfere with the global sentence that was imposed.

[6] My reading of the opinion of the majority at the Court of Appeal reveals the following principles that are most relevant to this Court’s decision:

(i) ordinarily, the judge should view this kind of evidence if asked to do so [paragraph 31, citing with approval the decision of the Alberta Court of Appeal in R. v. Hunt, 2002 ABCA 155, 166 C.C.C. (3d) 392, at paragraph 16];

(ii) in order to fully appreciate the sickening horror of child pornography, the judge actually viewing the material can assist in understanding the true nature of the offence committed [paragraph 33, citing with approval the decision of Justice Molloy in R. v. Kwok, [2007] O.J. No. 457, at paragraph 48];

(iii) in the exercise of discretion as to whether to view the images/videos or not, the judge should consider both the prejudicial effect of doing so and the probative value of doing so (paragraph 27);

(iv) on the prejudicial effect, the views of the victim(s) are relevant in that, among other things, the judge viewing the images/videos may cause additional trauma to the victim(s) (paragraph 34); and

(v) on the probative value, the judge may consider, among other things, (a) whether there is any dispute about the facts underlying the offence – if so, then that would normally be a factor in favour of the judge viewing the material, and (b) whether there is any dispute about what is depicted in the representative sampling of the material – if so, then that would also normally be a factor in favour of the judge viewing the material, and (c) how detailed the material has already been described to the judge – the more detailed, generally speaking the less necessary it may be for the judge to view the material, and (d) how experienced the judge is with child pornography - the more experienced, generally speaking the less necessary it may be for the judge to view the material (paragraph 35).

[7] In the case of R. v. Pinner, [2023] O.J. No. 5973, 2023 ONSC 7530, my colleague, Chozik J., at the urging of the Crown and (unlike our case) without any strong objection by the defence, immediately after the guilty pleas were entered and without any fulsome submissions by counsel on the law (again, unlike our case), decided to view a representative sampling of the child pornography material in question. Given the manner in which the request unfolded (I have read a transcript of the actual proceeding before Her Honour on April 28, 2023, which transcript was kindly provided to me by the Crown), I am not surprised that Her Honour exercised her discretion in favour of viewing the material. In Justice Chozik’s Reasons for Sentence, Her Honour indicated that “[v]iewing the images helped me appreciate the nature of Mr. Pinner’s collection” (paragraph 9).

[8] Every case is different, however, and I have reached a different result in our matter as compared to the Pinner, supra case.

[9] In our case, unlike in P.M., supra, there is nothing before me in terms of the views of the victims. Still, albeit limited, there exists some inherent prejudice to the victims in having these abusive images/videos viewed yet again, by another stranger, in an environment that they have no control over.

[10] In our case, in terms of the probative value analysis, first, there is no dispute about the facts underlying the offence; a typed Agreed Statement of Facts has already been marked Exhibit 1. Second, there is no dispute about what is depicted in the representative sampling of the child pornography material – a typed document containing descriptions of more than thirty images and videos has already been marked a sealed Exhibit on the sentencing. Third, the said document is very detailed; each and every item is described most thoroughly. Fourth and finally, this Court, like the judge in P.M., supra, has extensive experience with child pornography both (i) as a lawyer [(a) trial counsel for a Children’s Aid Society, with several cases involving child pornography, (b) certified specialist in criminal law, with numerous cases as defence counsel involving child pornography, and (c) agent for the Federal Department of Justice, as it was then called, and part-time prosecutor with the Ministry of the Attorney General in Grey, Bruce, and Huron Counties, with several cases involving child pornography] and then (ii) as a judge for thirteen years, having presided over many, many cases of child pornography. Regrettably, this previous experience has had me view numerous images and videos of child pornography, and I am confident that I have an appreciation for its truly shocking and grotesque nature.

[11] In summary, in this particular case, I see very limited probative value in the Court viewing the material. Although I also see limited prejudicial effect in doing so, on balance I think that it is better to decline the Crown’s request.

[12] The Crown is concerned that this Court may need to view the material because the two sides are so far apart in their respective sentencing positions. I respectfully disagree. The agreed-upon facts and the very detailed descriptions of the thirty-plus images and videos are sufficient. The Crown is also concerned that the Court may need to view the material in order to gauge the credibility of what the offender told the author of the presentence report – he denied seeking out child abuse material specifically. Again, I respectfully disagree. The agreed-upon facts and the very thorough descriptions of the numerous images and videos speak for themselves.

[13] In conclusion, this Court will not be viewing the material in question. We will proceed with the rest of the sentencing hearing as scheduled on November 14th.

Conlan J. Released: October 28, 2024