Court File and Parties
CITATION: R. v. Sutherland, 2019 ONCJ 307
DATE: March 19, 2019
Information No. 180245
ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
TYLER SUTHERLAND
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE R.W. LALANDE
on March 19, 2019 at Sudbury, ONTARIO
INFORMATION CONTAINED HEREIN
IS PROHIBITED FROM PUBLICATION OR BROADCAST
PURSUANT TO THE ORDER OF K.L. LISCHE, J.
DATED FEBRUARY 21, 2018.
s. 486.4(1) and s. 517(1)
APPEARANCES:
C. Croteau Counsel for the Crown
M. Venturi Counsel for the accused
TUESDAY, MARCH 19, 2019
R E A S O N S F O R S E N T E N C E
LALANDE, J. (Orally):
Mr. Sutherland was charged that between September 23rd, 2017, and January 16th, 2018, he did have in his possession child pornography, contrary to s. 163.1(4) of the Criminal Code. On January the 8th, 2019, Mr. Sutherland entered a plea of guilty. A pre-sentence report was ordered and the matter was put to today for submissions on sentence.
The complainant in this matter is V.W. Miss W. had sent a number of images of herself to Mr. Sutherland over a number of months during a relationship that she had with him online. Miss W. was 16 years old when she sent some of the images to Mr. Sutherland. He was aware of her age. The relationship concluded in September of 2017. Mr. Sutherland, from what I gather from the facts narrated, became upset at the dissolution of the relationship. He used his email account to send a collage of nude or semi-nude pictures of Miss W. to her mother. He also provided the following note, “Your daughter is a whore.” The email was sent to Miss W.’s mother on September 23rd, 2017. Mr. Sutherland also distributed images of Miss W. on a social media page to the Instagram account administrator of the boys’ hockey team at her high school.
The images in question were reviewed by police and determined to be child pornography, as defined in the Criminal Code. In consequence a search warrant was obtained. The warrant was executed on January 16th, 2018. Police seized Mr. Sutherland’s cell phone. A forensic examination of the cell phone located images of Miss W. consistent with those which had been sent out.
Mr. Sutherland was cooperative with the police. He had admitted sending a collage of images to Miss W.’s mother and to the boys’ hockey team via the administrator of the Instagram account. Mr. Sutherland, essentially, indicated that he had done so because he had been angered by the fact that Miss W. had betrayed him of sorts by becoming friends with other male persons.
As stipulated in s. 718.01 of the Criminal Code, when a court imposes a sentence for an offence that involves the abuse of a person under the age of 18 it shall give primary consideration to the objectives of denunciation and deterrence.
Additionally, the court must remain mindful of the proportionality principle set out in s. 718.1 The proportionality principle requires that full consideration be given to both the gravity of the offence and the moral blameworthiness of the offender. It has been said that proportionality is a cardinal principle that must guide the court in considering the fitness of a particular sentence. Generally, and as counsel know, the more serious the crime and its consequences or the greater the degree of the offender’s responsibility the heavier the sentence will be.
In imposing an appropriate sentence the court must take into account any relevant aggravating and mitigating circumstances relating to the offence or the offender.
I have outlined mitigating circumstances as follows:
• Mr. Sutherland has no prior criminal record;
• He entered a plea of guilt;
• Mr. Baril, who authored the pre-sentence report, described him as being polite, forthright and cooperative;
• Mr. Sutherland has been employed fulltime by the same company for several years. The employer provided a positive review of his work integrity;
• Mr. Sutherland has expressed remorse for what he did. He said, “I honestly feel bad about what I did and I understand it would be humiliating to go through.”;
• There is no determinative information that Mr. Sutherland suffers from sexual issues. He identified the reason for his offending behaviour as having been carried out because of spitefulness. There was no self-creation here of child pornography;
• Mr. Sutherland at no time was involved in any collection of sorts of child pornography outside the images, of course, sent to him by Miss W.
I have outlined the following as aggravating circumstances;
• Mr. Sutherland’s conduct was intended as an act of hurtfulness toward the complainant. He knew this when the images were sent to her mother and to the administrator of the Instagram for the boys’ hockey team;
• The offence of child pornography is serious and requires that the principles of denunciation and deterrence be considered as paramount in the court’s consideration of a proper sentence;
• Miss W.’s age and the emotional impact that a distribution of images of herself nude or semi-nude would have on her and the fact that Mr. Sutherland sent a collage of photos;
• He chose not to send one but to send a collage.
• There was an element of trust of sorts that Miss W. had bestowed upon Mr. Sutherland in sending the images of herself. This is not trust in the conventional sense. Nonetheless, the images were obviously sent within the context of her and Mr. Sutherland privately interacting with one another over the Internet. There would have been with this an expectation on her part of some privacy.
In terms of the disposition of this case, the Crown seeks the following; a period of custody of 18 months; three years probation; an order in accordance with s. 161 of the Criminal Code for a period of ten years; an order under s. 490.012, namely SOIRA, for a period of 20 years; an order for DNA.
The Crown underscored that Mr. Sutherland’s conduct was spiteful and intentionally hurtful and that the principles of general deterrence and denunciation would be the most important sentencing objectives to consider. The Crown also provided a chart outlining a certain sentencing range. The chart summarizes those cases contained in the Crown’s brief. The cases are not factually similar, although they do highlight the objectives of sentencing, including rehabilitation and individual deterrence.
Defence counsel strenuously submitted that a period of straight jail is not required in the circumstances of this case. Defence counsel highlighted the unique circumstances of the case. He also distinguished facts from those contained in the cases contained in the Crown’s casebook of authorities. In defence counsel’s submission the principles of sentencing could adequately be met without imposing a period of straight jail. Defence counsel spoke of meaningful probation. He highlighted the success with which Mr. Sutherland has abided to the conditions of his undertaking to the court over the past 14 months.
Defence counsel also submitted that should the court conclude that a period of custody be required then this could be accomplished with the imposition of a conditional sentence. Defence counsel also submitted a draft of conditions for the court’s consideration.
Defence counsel also made strong submissions against the imposition of a s. 161 order. He referred to several cases where the order had been requested but declined by the court.
In essence, if I may summarize, Mr. Sutherland can be said to have betrayed Miss W. He did so in a deliberate way with a view to embarrassing and humiliating her. This case involves a unique scenario where Mr. Sutherland pleaded guilty to have possession of child pornography consisting of images sent directly to him by the child who had taken the images herself. The images were forwarded as a result of what has been described as the two of them having been involved in an Internet relationship. The information is scant on the extent of the relationship. It appears that the relationship exclusively consisted of Mr. Sutherland and Miss W. communicating with each other via the Internet. In other words, they never met in person.
The images taken by Miss W. of herself may be categorized as being of a non-extreme nature. The images consist of poses that she took of herself of a sexual nature while mostly partially nude. Nonetheless, the images were rightfully categorized as consisting of child pornography within the definition of the Criminal Code.
There is no evidence in this case of any sustained planning on the part of Mr. Sutherland. The information disclosed is consistent, indeed, with him having sent the images as an act of spite against Miss W. Without taking away from the seriousness of Mr. Sutherland’s conduct there is no indication that he had planned anything further.
The pre-sentence report is favourable to Mr. Sutherland. He is seen to have demonstrated a level of insight into his conduct. There is an indication that he understands the impact that his conduct had on the complainant and her family. There is no indication that he abuses or has abused alcohol or illegal drugs. He is described by his grandmother, who is in court today, as a person who is polite, well mannered, with no anger or behavioural issues.
The court accepts defence counsel’s submissions touching upon stressors affecting Mr. Sutherland’s life at the time that the images were sent. In essence, he was dealing with his mother’s hospitalization and death at a time commensurate with the deterioration of his relationship with Miss W. and his spiteful decision to forward the images.
The emotional condition that he was in at the time is accurately articulated by Nurse Practitioner Jason Ingram, as referred to in the pre-sentence report. He said, “Tyler was already grieving in the death of his mother, the uncertain circumstances of her death and the unwillingness of investigators to follow up on these circumstances. Then his girlfriend at the time ended their relationship exacerbating his grief. He was awaiting grief counselling at our clinic as he has no private coverage.”
As counsel know, the imposition of an appropriate sentence can be a challenging process. I was attracted to the decision of R. v. C.A.M., decided by the Supreme Court of Canada in 1996, where the following was said,
“Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise in academic abstract. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on many circumstances.”
The complainant provided a succinct and well composed victim impact statement. She was, indeed, humiliated by what Mr. Sutherland did. She indicated the following, “When I was 16 and everything took a turn for the worst three years seems like a big deal to me. Your last year of high school should be memorable for all the right reasons, but mine was the opposite. In my senior year of high school Tyler stripped me of my pride, my confidence and my dignity. Tyler made me feel like I was nothing.”
To her credit, Miss W. did indicate that she had been fortunate in having strong family support. She also indicated that she had and has the support of her community. She stated, “I realize how great my small community is. The support I was given slowly allowed me to heal.”
Importantly in this decision, the court must bear in mind that Mr. Sutherland is a first offender. Given that fact, including his age and the unique factual circumstances of this case, the court is mandated to explore all appropriate dispositions. I must note that Mr. Sutherland chose to address the court personally. He openly expressed remorse for his conduct. He indicated that he is fully, permanently committed to avoid future criminal conduct.
Given the unique circumstances of this case, comments of support from those involved in Mr. Sutherland’s life, his own comments to Probation Services and his comments on the record expressed today, there is reason to accept that Mr. Sutherland is a person not likely to again come before the criminal justice system as an accused person.
In terms of my decision, I must address the issue of whether the principles of sentencing above discussed and importantly including s. 718 and s. 718.2 demand imposition of a straight jail sentence or whether they can adequately be addressed by something else, namely as submitted, a conditional sentence. I am satisfied, generally speaking, that the preconditions for the imposition of a conditional sentence in accordance with s. 742.1 of the Criminal Code have been met.
Importantly, I am satisfied that should Mr. Sutherland be allowed to serve a sentence in the community this would not endanger the safety of the community at large. The commission of this offence was situational and directed toward one complainant. Mr. Sutherland was admittedly motivated by some sort of spite toward Miss W. on the heels of his Internet relationship with her breaking up.
I am mindful of the principles set forth in the seminal decision of R. v. Proulx decided some time ago by the Supreme Court of Canada in the year 2000. As stipulated in that decision, a conditional sentence can, in appropriate circumstances, provide significant deterrence and denunciation, depending on the conditions imposed.
In these unique circumstances, having considered all significant aggravating factors, there is no reason, ultimately, to conclude that a conditional sentence would not suffice in providing a sentence proportionate to the gravity of Mr. Sutherland’s conduct.
That being said and for all the above reasons, Mr. Sutherland will be sentenced to a period of custody of 12 months. He will be allowed to serve the 12 months in the community in accordance with the provisions of a conditional sentence order.
As part of that order, he will report to a sentencing supervisor within two working days and after that at times as directed. He will cooperate by signing any releases of information requested of him in order to monitor his compliance with any program or counselling he is to attend. He will live at a residence approved by his sentencing supervisor and not change the residence without obtaining the consent of his supervisor in advance.
He will be under home confinement for a period of three months. He will remain within his residence for that period of time, except for Saturdays between the hours of one and four p.m. in order to acquire the necessities of life. There will also be an exception for medical emergencies involving himself or members of his direct family. He will be allowed to go out of the residence for employment purposes. That means he will be allowed to travel directly to and from work. He will also be allowed out if he is ordered to attend assessment or treatment or to attend meeting with his sentencing supervisor. Also, he will be allowed out with the written prior approval of his sentencing supervisor. As part of the exception, he will be allowed out to satisfy any legal obligations and that may include meeting with his counsel. When he is out of his residence he will keep on his person a copy of his sentencing order in case he has to show it to the police. When he is in the residence in compliance with the order he will attend at the door of the home in the event that the police attend to check up on him.
For the following three months of the sentence order he will be under a curfew from ten p.m. each night to six a.m. the following morning. The same exceptions will apply.
In the order he will have no contact or association, directly or indirectly, with the complainant, Miss W., or her mother, or any member of her immediate family. He will not, during the currency of the order, buy, possess or consume alcohol or other intoxicating substances, including drugs, unless he has a valid medical prescription. He will actively attend in counselling as recommended to him. That would include for rehabilitation measures or assessments. That could be for anger management, stress management, bereavement issues and, generally speaking, life skills. He will sign any release forms that would enable his supervisor to monitor his attendance at any program.
The conditional sentence order will be followed by a probation order, Counsel, extending 12 months with the same conditions, except there will be no house arrest or curfew. It will be a reporting probation order.
The Crown has requested a DNA order. There will be DNA order where he will provide a small sample of his blood in the usual sterile conditions for analysis and data banking.
I have considered the Crown’s request for a s. 161 order. That order, essentially, would restrict Mr. Sutherland’s right to be around children. In considering that request I have taken the following factors into account. Mr. Sutherland was fairly young at the time that this offence was committed. Mr. Sutherland is a first-time offender. This is not a case involving multiple victims. Based on all of the information received, including the pre-sentence report, and certainly in the absence of evidence tending to show otherwise, it cannot in this case be said that Mr. Sutherland is a person defined as somebody who poses a risk to young children. He has not been involved and it has not been alleged that he has been involved in any form of predatory behaviour. His misconduct was contained, in terms of time, to that short-lived period of time where he was upset over the breakup with his girlfriend. In other words, the bad conduct was short lived in terms of time and there is no indication that he has or will ever repeat it. Also, he has shown remorse and there is no reason not to believe that he is seriously remorseful.
Further, there are several conditions that I am about to pronounce, which I have not yet in the conditional sentence order and the probation order, which will restrict his conduct vis-à-vis persons under the age of 16.
There is no demonstrated risk of reoffending. There is little known connection between Mr. Sutherland’s misconduct and potential harm to future victims. Generally, the evidence does not support the need, in my view, of a s. 161 order. In essence, there is no known evidentiary basis upon which to conclude that he will pose a risk to children.
In terms of other conditions, Counsel, both in the conditional sentence order and in the probation order, the following conditions will apply. Mr. Sutherland will be prohibited from using the Internet social media or other electronic communication networks for the purpose of communicating, directly or indirectly, with persons under the age of 16, except for members of his immediate family. He will not seek, obtain or continue with any employment, whether or not the employment is remunerated, or in becoming a volunteer in a capacity that involves him being in a position of trust or authority toward any person under the age of 16 years.
My focus, Counsel, is closer to the age of 16 years. I have already made some pronouncements with reference to him not being a risk to children at large. I am including these two conditions for good measure because I am not acceding to the s. 161 order. But at the same time, I do want to pay attention to the Crown’s position on these matters.
There will, however, be an order under the SOIRA legislation, s. 490.013, which is mandated for the minimum period of ten years.
This, Counsel, has been a difficult case to decide. I must say there is likely no specific sentence on these facts which could, in the mind of the public at large, be unanimously correct. I acknowledge that. I have, however, done my best, even if I have not pronounced myself on each point that you had submitted, to factor in all of the principles that I believe are relevant in this case, importantly the principles of general deterrence, denunciation, as well as principles involving Mr. Sutherland’s personal circumstances, including issues toward rehabilitation.