Toronto judge wants courts to rethink how graphic evidence is presented

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Toronto judge wants courts to rethink how graphic evidence is presented


A Toronto judge is highlighting the issue of handling graphic evidence in court, and the lasting impact it can have on everyone involved in the justice system.

Ontario Court Justice Patrice Band touched on the topic recently in a sentencing ruling for a man who had pleaded guilty to charges that included possession of child pornography.

“My intention is not to be self-indulgent; rather it is to attempt to spur on and continue an increasingly important conversation about the trauma that justice system participants can suffer by being exposed to disturbing material such as child pornography,” Band wrote in the September judgment.

The case involved 60 videos and 11 images containing child pornography. Rather than having the Crown present a sample of the videos and images at the sentencing hearing, Band said he urged the Crown and defence to agree on a verbal description of the material. This was done to protect everyone in the courtroom, including lawyers and the judge himself, from having to see the potentially traumatizing material.

Lawyers who work in the criminal justice system, both prosecutors and defence, may be constantly exposed to graphic evidence including photos and videos. Band said in his judgment the courts should be having a discussion about how to present such evidence in courtrooms to protect everyone, including members of the public who may be sitting in the gallery.

“I believe that it is my responsibility and that of my colleagues to take an active and leading role in the discussion rather than to sit by and passively leave the door open for harmful evidence that is either unnecessary or presentable in an attenuated form,” Band wrote.

But even verbal descriptions of the graphic evidence may not go far enough, as Band said a courtroom staffer was noticed silently weeping while the Crown attorney read some of the descriptions into the court record. After a break the Crown decided to simply file written descriptions with the judge.

The judge noted several “lessons learned” in his ruling.

“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,” Band wrote.

“In such a case, there is no need for court staff to be exposed to it or the source material.”

He said in cases where the original evidence must be presented, Band suggests allowing some court staff to be excused, or at the very least, the judge or the lawyers should provide a warning regarding the nature of the evidence.

“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,” the judge wrote.

Band declined the Star’s request for comment. His ruling comes at a time of greater discussion and awareness within the legal profession about the mental health of lawyers.

Criminal defence lawyer Robin Parker, who has taken a keen interest in mental health in the legal profession, said there should be no stigma in talking about how the viewing of graphic evidence is a difficult part of the job and how to manage it. She herself can still recall seeing graphic images including those from autopsies while she was an articling student with the Crown.

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She said there will be cases where graphic evidence needs to be presented in its original form, but that there must be a wider discussion surrounding the handling of it, as urged by Band in his judgment.

“What we don’t talk about is how to handle that mentally, emotionally, spiritually,” she said. “To sort of have someone say to you: ‘Are you prepared to work on this case?’ And have people make conscious choices around it.”





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