WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a ) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
( b ) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
INFORMATION NUMBER: 20-9801 & 21-1547
BETWEEN:
HIS MAJESTY THE KING
— AND —
JEFFREY ADUBOFUOR
Before Justice M.K. WENDL
Submissions on Sentence Heard on September 21, 2023
Reasons for Sentence dated October 26, 2023
C. Sweeney Counsel for Crown
S. Peiters Counsel for Jeffrey Adubofuor
1Jeffrey Adubofuor was found guilty, after trial, of mischief and distributing an intimate image without the consent of the victim. I acquitted him of the charge of criminal harassment. The Crown is requesting a sentence of 3-4 months and the defence is requesting a conditional sentence.
FACTS
Facts
2Jeffrey Adubofuor and the victim were in a relationship. They broke up. He was then charged with scratching “karma” or “krama” on her vehicle, sending a video of the victim performing fellatio on himself to her new boyfriend, and criminal harassment. At trial, I rejected the offender’s evidence that he did not scratch the vehicle and found him guilty of mischief. I also found him guilty of distributing the intimate image. The victim testified, and was uncontradicted, that she did not consent to the video being sent, while Mr. Adubofuor, himself, admitted to sending the video.
3Finally, at trial, I accepted the fact that the victim was not aware that the video was even taken.
BACKGROUND
Background
4Mr. Adubofuor is a 31-year-old, university educated, African Canadian. In the pre-sentence report he describes his upbringing as “tough”. While his parents are still together, he noted that in earlier times their relationship was strained due to financial issues. He states in the report that his father struggled with alcohol abuse and was emotionally and physically abusive towards him. That being said, it appears from the report that his father no longer drinks, and he now speaks to him every day. Mr. Adubofuor indicates that he is otherwise close to his full siblings and mother, and he is now in a healthy and positive romantic relationship with someone else.
5Mr. Adubofuor indicates that he attempted to commit suicide when he was 13. He was eventually diagnosed with a learning disorder.
6The offender also made comments about the victim in the pre-sentence report, while he did acknowledge that he “understands the Publish Intimate image Charge” and regrets the “whole situation” he did go on to state that he feels the victim views this as a “win” and that he was pushed into engaging into such behavior.
LAW and ANALYSIS
Law and Analysis
7I will deal first with the offence of distributing an intimate image. Justice Leach in J.B. thoroughly summarized the applicable sentencing principles under section 162:
Section 162.1 of the Code is a relatively new offence that was created in response to growing concerns about violations of privacy"cyber-bullying" and, in particular, the distribution of intimate images in a public forum without the consent of those depicted in them, especially in cases involving what is known in the vernacular as "revenge porn". It is beyond question that the non-consensual distribution of such intimate images carries with it the risk of psychological hardship and embarrassment to the victims of such crimes. In notorious instances, those who have been the subject of such non-consensual publication of their intimate images on the internet have killed themselves. The inferred impact on victims accordingly is substantial, and the moral responsibility of such offenders generally will be high. Moreover, our courts recognize that distribution of such intimate images via the internet can result in the images being forever available. See, for example: R. v. Ly, [2016] O.J. No. 7196 (O.C.J.) , at paragraphs 32-34 and 44-45 ; R. v. P.S.D., [2016] B.C.J. No. 2653 (Prov.Ct.) , at paragraphs 9-10 ; R. v. A.C., 2017 ONCJ 317 , [2017] O.J. No. 2867 (O.C.J.) , at paragraphs 17-20 and 65 ; R. v. Agoston, [2017] O.J. No. 3207 (S.C.J.) , at paragraphs 16-17 ; and R. v. J.S., [2018] O.J. No. 653 (S.C.J.) , at paragraphs 20 and 32-34 .
*While other sentencing goals such as rehabilitation of an offender obviously must not be forgotten, denunciation and general deterrence accordingly are the paramount sentencing goals in relation to s.162.1 crimes. See, for example: R. v. Calpito, [2017] O.J. No. 1171 (O.C.J.) , at paragraphs 77 and 99 ; R. v. A.C. , supra, at paragraphs 53 and 54 ; and R. v. J.S., supra, at paragraph 20. Denunciation and general deterrence similarly have been accorded paramount importance in relation to crimes of voyeurism and criminal harassment involving the surreptitious taking and/or non-consensual sharing of intimate images via the internet. See, for example: R. v. Desilva, [2011] O.J. No. 1298 (O.C.J.) , at paragraph 29 ; R. v. Dewan, [2014] O.J. No. 5151 (C.A.) , at paragraph 13 ; R. v. Trinchi, 2016 ONSC 6585 , [2016] O.J. No. 6719 (O.C.J.) , at paragraph 33 ; and R. v. Zhou, [2016] O.J. No. 4641 (O.C.J.) , at paragraph 28 . [1]
8Although I note that the case at bar does not involve publishing an image on the internet but sending it to the victim’s new boyfriend, this does not alter the sentencing principles in my view. It is a significant breach of trust and the impact on the victim is the same. It is degrading and substantial. As the victim noted in her impact statement:
After contacting the police to resolve the matter, I thought I would begin to find some sense of safety. This feeling was quickly ripped away from me when an intimate video of myself was weaponized and used to cause further abuse and embarrassment. The nonconsensual distribution of this video was not only bullying but it was horribly abusive and calculated. It was done to inflict embarrassment, pain, diminish my character in the eyes of my boyfriend, and whoever else may have received the video. When my boyfriend informed me of the video, I felt degraded and taken advantage of, I felt utterly sick to my stomach. It feels violating and terrifying to know that intimate images of yourself are being sent out for people to see, and the potential it has to ruin my relationships, future and career aspirations. Not only did I feel awful for myself, but I felt horrible that my loved one was also enduring such harassment because someone wanted to hurt me.
9The crux of the defence submissions for a conditional sentence are based on the fact that the accused is a first-time offender and that he is the subject of anti-black racism.
10While I accept the assertions of defence counsel that the accused has been subject to anti-black racism, the focus of this court is:
A sentencing judge has a specific and focused task. A sentencing judge must impose a sentence tailored to the individual offender and the specific offence. While evidence relating to the impact of anti-Black racism on an offender will sometimes be an important consideration on sentencing, the trial judge’s task is not primarily aimed at holding the criminal justice system accountable for systemic failures. Rather, the sentencing judge must determine a fit sentence governed by the fundamental tenets of criminal responsibility, including free will, and the purposes, principles and objectives of sentencing laid down in Part XXIII of the Criminal Code : R. v. Nur, 2015 SCC 15 , [2015] 1 S.C.R. 773 (“Nur (SCC)”), at para. 43, aff’g 2013 ONCA 677 , 117 O.R. (3d) 401 (“Nur (ONCA)”); R. v. Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R. 206 , at paras. 39-45 ; Hamilton, at paras. 2, 87; see also Michael C. Plaxton, “Nagging Doubts About the Use of Race (and Racism) in Sentencing” (2003) 8 C.R. (6th) 299 , at pp. 306-7 . [2]
11Ultimately, the sentence I impose on Mr. Adubofuor must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [3] Put another way, proportionality is measured by reference to both the offence and the offender.
12As noted in Morris , how the court assesses the gravity of the offence is not affected by the background of the accused. The accused’s background is relevant to how the Court assesses the offender’s responsibility for the offence. [4] While no causal connection is required between anti-black racism and the offence, a connection must be showed:
There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue. Racism may have impacted on the offender in a way that bears on the offender’s moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour. Everyone agrees there can be no such discount: see e.g., F.H.L., at paras. 45-49; R. v. Elvira, 2018 ONSC 7008 , at paras. 21-25 ; R. v. Ferguson, 2018 BCSC 1523 , 420 C.R.R. (2d) 22 , at paras. 126-29 ; and R. v. Biya, 2018 ONSC 6887 , at para. 36 , rev’d on other grounds, 2021 ONCA 171 . [5]
13In respect to the case at bar, I accept that Mr. Adubofuor has been subject to anti-black racism throughout his life. However, no connection has been established between the sending of the intimate video and his being subject to anti-black racism. Put another way, the fact that the accused has been the subject of anti-black racism does not assist the court in explaining why the accused sent a video, a video taken surreptitiously, of his ex-girlfriend performing fellatio to her new boyfriend, nor does anti-black racism affect his prospects for rehabilitation.
14Mr. Adubofuor has pro-social support from his family and new relationship. He has no record and is gainfully employed. In my view this makes his prospects for rehabilitation quite good, except for the fact that he appears to have no insight into his behavior. [6] I do not find that anti-black racism plays any role or has any general connection into that lack of insight. When I look towards his testimony at trial, he had absolutely no regard for the fact that the victim was in a vulnerable position in the video when he sent it. She was merely incidental to him showing off the size of his penis:
“So when I had sent the video it was literally just to measure, show my dick, just like, hey, we're having a dick measuring contest. I'm not worried about you. I'm good in that department. Just worry about your girlfriend and leave me alone. That was the intention behind it. It wasn't to share. It was literally like, the video, you see, it's just my dick. You want to measure dicks? Let's measure dicks. It was also to remind her like, I'm not worried about you. I'm good. [7]
15This coupled with the comments in the pre-sentence report that the victim sees this as a “win” and that he was “pushed into it” clearly demonstrates that he does not have any understanding into the impact of his actions on the victim or awareness into his behavior generally as it relates to this offence.
16As noted by Justice Leach in J.B. , the moral responsibility for offenders under 162 will be high and so it is for Mr. Adubofuor. This offence involved a breach of trust, the video was surreptitiously recorded, it was sent to her new boyfriend with no thought on how it could affect that relationship, and I find that, based on his own testimony and the presentence report, he had absolutely no regard for the victim in this case. Again, her embarrassment or humiliation, both of which go to the core of her dignity, were simply secondary to him wanting to show off the size of his genitalia.
17Based on the seriousness of the offence and the high degree of responsibility of Mr. Adubofuor a conditional sentence, although legally available, is not appropriate, even taking into account that he is a first-time offender. Simply, a conditional sentence does not sufficiently address the principles of deterrence, both general and specific, and denunciation. [8] I note that counsel relied heavily on Priest [9] during their submissions. However, there are significant differences between the facts at bar and Priest . In Priest the offender was 19 years old, not 31. Also, the nature of the offence was completely different in Priest . It was a property offence and not distributing an intimate sexual video.
18Balancing all the factors, namely, the seriousness of the offence, the breach of trust, the fact the video was secretly recorded, the lack of insight, the impact on the victim, the background of the accused, the fact that he is a first-time offender, the principle of restraint and considering that the principles of denunciation and deterrence are the primary sentencing principles while not losing sight of rehabilitation, the 4-month sentence requested by the Crown is appropriate.
19In relation to the charge of mischief, I impose probation for 2 years. As noted above, he is a first-time offender, this is a property offence and the principle of totality make probation appropriate.
Released: October 26, 2023
Signed: Justice M.K. Wendl
[1] R v JB , 2018 ONSC 4726 , [2018] OJ No 4133 [2] R. v. Morris 2021 ONCA 680 at para 56 [3] Criminal Code of Canada section 718 [4] Morris supra, at para 75-76 [5] Ibid at 97 [6] R. v. C.L ., 2023 ONCA 691 at para 12 [7] R. v. Adubofuor 2023 CarswellOnt 10698 [8] R. v. A.C. 2017 ONCJ 317 at para 66 and R. v. Ha 2023 ONCJ 75 at para 62 [9] R. v. Priest , 30 O.R. (3d) 538
