A Trial Judge’s Inappropriate use of Independent Social Science Research to Determine a Central Issue


A trial judge cannot rely on social studies or literature or scientific reports unless they have been accepted after being properly introduced and tested by the parties.

 See, R. v. P.(S.D.) (1995), 1995 CanLII 8923 (ON CA), 98 C.C.C. (3d) 83 (Ont.C.A.) at ¶ 33, 36; Cronk v. Canadian General Insurance Co. (1995), 1995 CanLII 814 (ON CA), 85 O.A.C. 54 at ¶ 47, 49-51; R. v. Désaulniers (1994), 1994 CanLII 5909 (QC CA), 93 C.C.C. (3d) 371, (Que.C.A.) at ¶ 21, 23-24, 26-27.

R. v B.M.S., 2016 NSCA 35 (CanLII):  It was an error for the trial judge to use articles he found about the psychological harm of sexual photo sharing by means of smartphones (“sexting”) without notice or a proper foundation to decide a central and contentious issue: in this case, whether the accused’s youth’s possession of child pornography through sexting caused psychological harm that amounted to a “violent offence” within the meaning of section 2 of the Youth Criminal Justice Act.

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