R. v. Ha, 2023 ONCJ 75

ONTARIO COURT OF JUSTICE DATE: 2023 02 10 COURT FILE No.: BRAMPTON 20-5026

BETWEEN:

HIS MAJESTY THE KING

— AND —

ANTHONY HA

Before: Justice S. Caponecchia

Guilty Plea: August 31, 2022 Sentencing Submissions: December 15, 2022 Reasons for Judgment on Sentence: February 10, 2023

Counsel: L. Taub, counsel for the Crown B. Badali, counsel for the accused Anthony Ha

CAPONECCHIA J.:

Introduction

1Anthony Ha pleaded guilty to one count of assault and one count of distributing intimate images. The victim and Mr. Ha were involved in a dysfunctional relationship between 2016 and 2017. He assaulted the victim three times. After they broke up, he posted 10 videos of them having sex on an adult pornography website. The victim’s name was attached to the videos.

Position of the Parties

2The Crown seeks a sentence of five months jail, 12 months’ probation, a s. 110 order and DNA order.

3The Defence seeks a conditional sentence. In the alternative, a sentence in the intermittent range. The Defence does not contest the corollary orders sought by the Crown.

Circumstances of the Offence

4In August 2020 the victim contacted police when a friend alerted her to the videos. The victim checked the internet for herself. The videos were accessible by searching her name. She located videos depicting her engaged in sex with the defendant that were posted in 2017, 2018 and 2019 on two different adult pornography websites. The videos were originally made with her consent using the defendant’s phone during their relationship. The only person who had access to the footage was the defendant. She did not give him, or anyone else, permission to distribute the videos on the internet.

5Mr. Ha acknowledges he distributed 10 videos in 2017 on one adult pornography website and attached the victim’s name to the videos. The defendant does not take responsibility for the subsequent re-posting of videos in 2018 and 2019, nor the appearance of the videos on a second adult pornography website. That said, he acknowledges that he let the proverbial “Genie out of the bottle” and but for his initial posts, the subsequent re-distribution of the videos would not have occurred.

6In her statement to police in August 2020 the victim also disclosed three historical assaults committed by the defendant over the course of their relationship.

7One of those assaults occurred on November 16, 2016. During the course of an argument Mr. Ha tried to take the victim’s cell phone out of her hands. He pulled her to do so, and she hit her head on a doorframe. When he put his hands on her he did not intend for her head to strike the door. Nevertheless, she sustained a large bump over her right eye that extended from her eyebrow to her hairline. She went to a walk-in clinic to seek treatment for her injury.

8The second assault occurred on March 20, 2017. Mr. Ha pushed the victim down and grabbed her by the throat for a few seconds before letting her go. She had problems breathing when he did so.

9A third incident took place on June 15, 2017. During a disagreement in a car, Mr. Ha grabbed the victim’s legs and arms with enough force to leave bruises.

Background of the Offender

10Mr. Ha is 30 years old. He was between 24 and 26 years old when he committed the offences. He has no criminal record.

11The offender has a degree in engineering and has a history of employment. He worked for one employer for six years. Subsequently he worked as a Project Coordinator for a year, but that job ended in July 2022. Mr. Ha was let go for expressing his frustrations to his manager in an unprofessional manner. Mr. Ha is currently unemployed and is contemplating a career change once the matter before the court is completed.

12Mr. Ha is the eldest of two children. His father passed away in October 2022. He had a strained relationship with his father. Mr. Ha lives with his mother and they emotionally and financially support each other. He enjoys the support of his sister and numerous friends and associates who submitted positive letters on his behalf.

13He described his previous relationship with the victim as both toxic and emotionally and sexually satisfying. He told the author of the PSR that he was seriously impacted by the breakup. After they separated in 2017, he felt lonely, sad and isolated from a social group they shared. Mr. Ha acknowledges that he posted the intimate videos on the internet out of anger and vengeance. He felt that he had been treated unfairly and wanted justice.

14After being charged, Mr. Ha completed six two-hour sessions of domestic abuse counselling. He now feels shame and regrets his actions. He lives a healthy lifestyle.

1. General Principles of Sentencing

15Sentencing is a highly individualized process. A delicate balancing of the various sentencing principles and objectives is called for, in line with the overriding principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [1]

16Section 718 of the Criminal Code states that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. This is to be achieved by imposing sentences that have, among other objectives, the objectives of:

• separating offenders from society, where necessary;
• denouncing unlawful conduct;
• general deterrence;
• rehabilitation; and
• promoting of a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

2. Victim Impact

17Section 718.2(a)(iii.1) of the Criminal Code explicitly provides that a court shall take into consideration evidence that the offence had a significant impact on the victim.

18A victim impact statement was filed in this case. In it the victim describes the toll the offences took on her.

19The victim has a lasting reminder of the physical abuse she experienced, a visible mark on her head from when she struck a door. The physical abuse changed the way she related to her friends and family because she endeavored to conceal the dysfunctional relationship. The victim had no intention of disclosing the details of the physical abuse until she learned that the videos had been put on the internet. When she learned about the videos three years after the relationship ended, she found herself feeling abused again by Mr. Ha. She described having to work through feelings of humiliation, disgust, shame and hopelessness when she discovered the videos on the internet.

20At the time she learned of the videos, she was going to school for real estate. Her career depends on having an online presence. She had to hold off on launching a website because the videos could be accessed by anyone searching her name on the internet. She described feeling robbed of a future.

21She spent hours of her own time and energy trying to have the images removed from the internet. She continues to check the internet to see if copies of the videos have been recirculated.

22She worries about who has seen the videos and who might have access to them.

23She continues to process how a dysfunctional relationship that ended in 2017 continues to negatively impact her emotional well-being many years later. The victim seeks therapy to cope with her anxiety arising from the offences.

3. Aggravating and Mitigating Factors

24Section 718.2 (a) of the Criminal Code indicates that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

25The mitigating factors include Mr. Ha’s guilty plea. He has spared the victim the ordeal of having to testify in court and have yet more people see the images. He does not have a criminal record and is remorseful. He regrets what he did. He took the initiative to do counselling.

26As for the aggravating factors, there are many:

1. Mr. Ha used violence against an intimate partner, which is a statutory aggravating factor: s. 718.2 (a)(ii). The physical violence was not an isolated event, there were three separate incidents where he applied force to control his girlfriend.
2. In my view, both offences involve a breach of trust: s. 718.2 (a)(iii). Mr. Ha betrayed the trust of his intimate partner when he used force to dominate her in private. He engaged in a final and ultimate act of betrayal of her trust when he distributed the intimate videos of them having sex after they broke up.
3. The number of sex videos Mr. Ha made available on the internet is also aggravating; there were 10.
4. The videos contain highly sensitive content. They depict the complainant engaged in the act of intercourse with the defendant.
5. Mr. Ha posted the 10 videos on an adult pornography website, where he could expect many people to see them. He did not bury them on some obscure website or send them to people who would delete and not look at them.
6. Mr. Ha took the additional step of tagging the videos with the victim’s name, thereby making it possible for anyone who searched her name on the internet to discover them.
7. The videos were in the public domain for a significant period of time, between the end of 2017 and April 2020.
8. The defendant’s actions resulted in the videos being re-distributed in 2018 and 2019 and on two different pornography websites.
9. The victim’s friend became aware of the video and notified her.
10. The victim had to utilize her time and energy to contact Google to remove the videos.
11. The emotional impact on the victim of both offences is neither trifling nor transient:
    • There remains a physical mark on her face from being assaulted
    • The victim’s career aspirations were hampered because she requires an online presence for her job. She now must live with ongoing insecurity about her online presence and the fear that copies of the videos could resurface on the internet.
    • She has required professional help to deal with her emotions.
12. Mr. Ha’s motive in posting the intimate videos is aggravating - revenge. His actions were calculated to harm the victim by attaching her names to the videos.

27In short, the aggravating factors in this case are many, the mitigating factors are few.

4. Gravity of the Offence and Degree of Responsibility

28Section 718.1 of the Criminal Code states that any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

29Both offences are serious and disproportionately impact women.

30It has long been recognized that domestic violence is a scourge on society. The distribution of an intimate image without consent is a new form of intimate partner abuse. It has also been described as both a sexual offence, as well as a privacy offence. The harm caused has been described as follows:

The newly created offence may not be a crime that leaves visible scars or injuries but, all the same, it clearly has the demonstrated potential to destroy the lives of its victims. [2]

31Defence counsel endeavored to persuade me that Mr. Ha’s actions were impulsive.

32I accept that the assaults Mr. Ha perpetrated were impulsive. They demonstrate an irrational temperament towards his intimate partner.

33I reject the suggestion that Mr. Ha’s decision to distribute the intimate videos was impulsive. I am satisfied that it was the opposite. The submission might be more persuasive if Mr. Ha had only posted one indiscriminate image in which the identity of the victim was not obvious. Or if he had not attached her name to the videos. Instead, Mr. Ha took the time to choose 10 graphic videos and distribute each one. He also took the extra step of attaching the victim’s name to the videos. The distribution of the videos was not a momentary error in judgment, but rather a deliberate and calculated act intended to cause the victim harm. Distributing multiple videos on an adult pornography website with the victim’s name guaranteed the victim would suffer. Mr. Ha’s moral blameworthiness is very high.

5. Case Law

34Section 718.2 (b) of the Criminal Code states that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

35Sentences imposed for both domestic assault and “revenge-porn” are varied and range from a conditional discharge to substantial periods of custody.

36Appellate courts have long said that general deterrence and denunciation are paramount in sentencing offenders for domestic assault. Recently the Manitoba Court of Appeal made similar comments in respect of the offence of distributing intimate images without consent:

It is a sexual offence and a privacy offence, and sentences for it must reflect both of these aims of the legislation. Deterrence and denunciation are the primary sentencing objectives and such conduct typically will result in a custodial sentence. [3]

37I adopt the comments of Justice Stribopoulos, then of this Court, in R. v. J.R., 2018 ONCJ 6409, para. 90:

Today, given that every cell phone is now also a camera and a video camera, intimate partners routinely share intimate images. Relationships end, sometimes badly. The potential for these sorts of images to then be distributed by a jilted former partner has become all too easy. As a result, the cases have understandably recognized that denunciation and deterrence are the most pressing sentencing objectives for this offence as well. The sentences imposed by courts for this crime must send a strong message. If you breach the privacy and trust of an intimate partner, the punishment will be severe.

38Custodial dispositions are common and quite properly imposed in domestic assault cases to underline the message of intolerance for such behavior. Indeed, they should be “normal” especially where “significant bodily harm has been inflicted.” [4] Currently there is no binding case law of sentencing ranges for the offence of distributing intimate images. I have carefully considered the cases submitted by the Crown and defence in this case, as well as others. I do not propose to summarize them all. I will simply highlight some to demonstrate the various and evolving approaches to sentencing in cases where guilty pleas were entered.

39One of the earliest sentencing decisions for the distributing intimate images offence is R. v. P.S.D., 2016 BCPC 400. An offender in his 20’s sent photographs of his girlfriend’s breast taken without her consent to two of his friends. The photos were blurry and it was difficult to recognize her in the photos. He spent 60 days in pre-trial custody and received a suspended sentence.

40In Ontario, one of the earliest decisions was R. v. Calpito, 2017 ONCJ 129. The youthful 21-year-old offender pleaded guilty for having sent 5 nude photos of his ex-girlfriend to some of her friends and one to her employer. Judge Harris imposed a conditional discharge with a period of probation with terms akin to a conditional sentence.

41Another early decision from Ontario took a different approach: R. v. A.C., 2017 ONCJ 317. The 32-year-old offender posted approximately 17 photographs and 5 videos of his ex-girlfriend on the internet without her permission. The victim was identifiable by her name and by her face. The defendant attached disparaging comments to some images and the city where the victim lived. The offender had no prior convictions. Justice Rahman concluded that only a sentence of imprisonment would be proportionate to the gravity of this offence and would properly give effect to general deterrence and denunciation. Justice Rahman imposed a period of five months of incarceration and rejected the request for a conditional period of imprisonment. He held that a conditional sentence would not be proportionate to the gravity of this offence, nor would it adequately fulfill the principles of general deterrence and denunciation.

42In R. v. J.S., 2018 ONCJ 82, the 36-year-old offender distributed 11 videos of his partner on the internet and continued to do so after she discovered them. Counsel jointly submitted a sentence of 18 months imprisonment with three years of probation. The offender had addiction and mental health issue and had made great strides to rehabilitate himself. The joint submission was accepted.

43In R. v. Greene, 2018 NLPC 95, the 25-year-old offender committed the offences of uttering a threat; publication of an intimate image without their consent; assaulting a peace officer; and breach of recognizance. The section 162.1 offence involved the accused having sent one video of his former partner having sexual intercourse with another man, to one of her friends. A period of eight months of incarceration, which included a period of five months of incarceration for the section 162.1 offence, was imposed.

44In R. v. T.D., 2018 ABPC 1151, a 25-year-old offender posted intimate images of his former partner on the internet along with her name and disparaging comments. The offender had no prior convictions. The victim was sent messages from strangers and was traumatized. The judge imposed a period of three months of imprisonment, noting that substantial weight had to be placed upon denunciation, as well as specific and general deterrence.

45In R. v. Haines-Matthews, 2018 ABPC 264, the 19-year-old offender had taken photographs of the victim's buttocks and bare chest. He sent them to his ex-girlfriend “to make her mad." He then posted a video recording and nude photographs on Facebook and Instagram. The offender had one prior adult conviction for having breached a recognizance. A period of five months of incarceration was imposed. In rejecting the conditional sentence the trial judge concluded that a period of incarceration will normally be imposed for this offence.

46In R. v. McFarlane, 2018 MBCA 48 the Manitoba Court of Appeal affirmed the total sentence of 18 months of imprisonment for a 26-year-old offender. The offences included voyeurism, distribution of an intimate image without consent and extortion. In McFarlane, the intimate images were sent to the victim and her sister by email, as part of a sextortion scheme. The Court did not vary the sentence of six months incarceration for the distributing intimate images count - imposed concurrently to the other offences in the sentencing - but stated that this was on the low end of the range.

47More recently in R. v. S.C.C., 2021 MBCA 1, a 30-year-old was sentenced to 14 months incarceration for distribution of an intimate image without consent. The Court of Appeal listed 11 aggravating factors and increased the sentence to one of two years less one day incarceration. The offender had a past record, was out on bail for domestic violence charges at the time of this offence - including to have no contact with the victim, and the offender was a high risk to reoffend. The aggravating factors included that this was an offence which involved domestic violence and an abuse of trust, the images were posted online out of spite, the victim was clearly identified in the images and the images were removed after the accused got caught.

48A four-month conditional sentence was imposed in R v JEC, 2021 ABPC 58. Twenty images were distributed on the internet after a breakup. The victim’s face was obscured, and she was not otherwise identifiable. The offender’s actions were described as reckless as opposed to intentional. The offender’s motive was not malicious. He posted the photos to increase his own profile on the website, not to harm the victim. He had taken steps to obscure the victim’s identity. The judge characterized the case as “unique” in that many aggravating features present in other cases were not present. There was no deliberate identification of the victim, postings were not made on multiple websites, nor in ways to ensure maximum distribution of the images. Nor were the images targeted at friends, family or employers so as to maximize the humiliation and harm to the victim.

6. The Principle of Restraint and Conditional Sentences

49Section 718.2(d) states that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.

50Section 718.2(e) states that all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

51Mr. Ha is a first offender. A conditional sentence is an available sentence for both offences he pleaded guilty to, and I have carefully considered whether one should be imposed. In determining whether a conditional period of imprisonment is appropriate, two main questions must be answered.

52The first is whether the imposition of a conditional period of imprisonment to be served in the community would endanger the safety of the community. Danger to the public is evaluated by reference to the risk of re-offence, and the gravity of the danger in the event of a re-offence. [5]

53Mr. Ha committed serious offences that resulted in lasting harm to the victim. However, he has no history of prior convictions, nor has he committed any since. He has taken counselling to gain insight and coping skills to avoid reoffending. He is highly educated and has a good history of employment. He has support in the community. Overall, I conclude that he does not constitute a danger to the public.

54Turning to the second issue. Is a conditional sentence consistent with the fundamental principles of sentencing set out in the Criminal Code? Jail is not called for to satisfy the principle of specific deterrence or rehabilitation in Mr. Ha’s case. It is, however, called for to meet the principles of general deterrence, denunciation and to hold him accountable for the harm he caused. Mr. Ha’s moral blameworthiness is high and his offences are grave.

55In some instances, a conditional sentence with sufficiently onerous conditions can achieve the objectives of denunciation and general deterrence. [6] In other circumstances the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct. [7] The same is true of deterrence, there may be circumstances in which the need for deterrence will warrant incarceration." [8] The Supreme Court of Canada in Proulx explained:

Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence. [9]

56In R. v. Killam (1999), 126 O.A.C. 281 Justice Doherty first observed that a conditional sentence does not, generally speaking, have the same denunciatory effect as a period of imprisonment. Incarceration remains the most formidable denunciatory weapon in the sentencing arsenal. [10]

57More recently the Supreme Court of Canada, albeit in a different context, stated that conditional sentences generally indicate less serious criminality than jail terms. [11]

58In R. v. Macintyre-Syrette, 2018 ONCA 706, at para. 19, the Ontario Court of Appeal indicated that there are circumstances in which the need for denunciation and deterrence is such that incarceration is the only suitable way to express society's condemnation of the offender's conduct.

59I am satisfied this is one of those cases. In Mr. Ha’s case a conditional sentence would not be consistent with the fundamental principles of sentencing. It would fail to adequately reflect the principles of deterrence and denunciation. A conditional sentence would also not be proportionate to the gravity of this offence.

60I adopt the following sentiments of two of my former colleagues. First, Justice Rahman in R. v. A.C., 2017 ONCJ 317. I too find it difficult to accept that anyone whose judgment is so blinded by vengeance and is motivated to humiliate a former intimate partner would find the prospect of house arrest a deterrent. I also cannot accept that a period of house arrest adequately denounces the extreme breach of privacy in this case.

61Second, Justice Stribopoulos, in R. v J.R., 2018 ONCJ 6409. The sentence imposed for the offence of distributing intimate images without consent must send a very strong message that former intimate partners, who feel aggrieved for whatever reason, cannot embark on a course of conduct designed to publicly bully and harm their former partner. Furthermore, relationships end every day for a great variety of reasons. When they do so, individuals are entitled to live their lives normally and feel safe. They are entitled to live free of any fear of the harmful repercussions caused by the distribution of “revenge-porn” by a former intimate partner.

62My conclusion is that only a sentence of imprisonment in this case could properly give effect to the fundamental principles of sentencing.

7. The Appropriate Length of Sentence in this Case

63Having determined a conditional sentence is not appropriate in Mr. Ha’s case, I must determine the appropriate length of a custodial sentence. As the case law demonstrates, there is no binding range of sentence for the offence of distributing intimate images without consent. Being a relatively new offence, this is not surprising.

64The purpose of the offence must be kept in mind in determining a fit sentence:

The offence of distribution of an intimate image without consent was enacted by Parliament in 2014 in order to address "the particularly vile and invasive form of cyberbullying involving the non-consensual distribution of intimate images" cyberbullying is psychologically toxic and "can be particularly harmful because the content can be spread widely, quickly – and anonymously” … [12]

65Deterrence and denunciation are the primary sentencing objectives in a case such as this one. It is difficult to overstate the seriousness of the offences. This case involves both physical and psychological abuse of an intimate partner.

66Physical violence was used on three separate occasions by the defendant to control the victim. On one occasion his act of violence resulted in bruising, in another the defendant compromised his partner’s ability to breathe and on a third occasion he caused her head to be scarred.

67In today’s digital age, the psychological damage caused by the dissemination on the internet of multiple videos depicting the victim by name in the act of intercourse is incalculable. The resultant harm is both foreseeable and indefinite given it can never be known who made copies of the videos and if the images will be recirculated in the future by others (as they were in 2018 and 2019). While not an offence of physical violence, the humiliation and the mental trauma caused by the public dissemination of videos depicting the most private of acts should not be taken lightly and cannot be overstated. The offences are grave and Mr. Ha’s moral blameworthiness is high. That said, I must also give some weight to the principle of restraint, given Mr. Ha comes before the court as a first offender who pleaded guilty and has a stable background and future.

68In all the circumstances I am satisfied that a fit and appropriate sentence for the offence of distributing intimate images in Mr. Ha’s case is one of 5 months jail, followed by probation for 18 months. This sentence is proportionate to both the gravity of the offence and Mr. Ha’s moral blameworthiness and it does not extinguish his prospects for rehabilitation or reintegration into society.

69Having regard to the principle of totality, I sentence Mr. Ha to a concurrent sentence of 18 months’ probation on the assault count.

70In addition to the statutory probation conditions which apply, Mr. Ha is also ordered to:

• abstain from communicating directly or indirectly with the victim;
• not be within 100m of the victim except if in the presence of a lawyer and it is for court purposes;
• refrain from posting any photos or comments regarding the victim on any internet based platform;
• destroy any intimate images of the victim in your possession within 2 days of your release and there after you shall not possess any intimate images of the victim
• report to a probation officer within 48 hours of your release and thereafter as required and comply with all directions received from his probation officer;
• attend and participate in any counselling or treatment sessions arranged or recommended by your probation officer; and
• sign any releases that permit your probation officer to monitor his counselling or treatment.

71On consent, there will be a s. 110 order for 5 years on the assault charge.

72Assault is a secondary designated DNA offence. On consent, there will also be an order, pursuant to s. 487.051(3) of the Criminal Code, for a sample of Mr. Ha’s DNA to be stored in the National Databank. The sample will be taken in custody.

73Finally, there will be an order pursuant to s. 743.21 of the Criminal Code prohibiting the offender from having contact with the victim while he serves his sentence.

Released: February 10, 2023 Signed: Justice S. Caponecchia