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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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.
CITATION: R. v. Scapillati, 2026 ONCJ 474
DATE: 2026·August·12
COURT FILE No.: Toronto Region
4810 998 24 48106387-00
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
WADE SCAPILLATI
Before Justice Peter Scrutton
Heard on August 5, 2026
Reasons for Sentence released on August 12, 2026
R. Weinberg............................................................................................................... for the Crown
M. Mureseanu......................................................................................................... for the Accused
Introduction
[1] Wade Scapillati was arrested in February 2024 and pled guilty to the non-consensual distribution of intimate images contrary to s. 162.1 of the Criminal Code on January 27, 2026. His sentencing was adjourned so that a pre-sentence report (PSR) could be prepared. The Crown seeks a jail sentence of 15 months, followed by 2 years probation, a DNA order (which the defence does not oppose), and a SOIRA order (which the defence does oppose). The defence seeks an 18-month conditional sentence, followed by two years of probation.
Brief Facts of the Offence
[2] Mr. Scapillati and the victim, who for privacy reasons I will not refer to by name or initials, had been in a relationship during which they consensually recorded videos of their sexual activity. Approximately one year after the end of their relationship, the defendant uploaded six such videos to the pornography website pornhub.com, videos which remained online for approximately one year until, coincidentally, they were discovered by someone related to the victim, who alerted her, who in turn alerted the authorities.
[3] Two of the videos clearly showed the victim’s face. On one video, her face is visible on the thumbnail on the website, and was also clearly visible 40 seconds into the video as she looked straight into the camera while performing a sex act. The victim was never in possession of the videos and had been advised by the defendant after their relationship ended that the videos had been deleted. At no point did she consent to the videos being shared, distributed, or published on the internet.
Victim Impact
[4] The victim spoke about the devastating effect this offence has had on her. Understandably, she reports feeling humiliation, anxiety, fear, and loss of control over her body and image; significant embarrassment because a family member discovered the videos; ongoing fear that copies remain online and may reappear; a reduced trust in others; and a diminished sense of security and self-worth. This event has negatively impacted her current relationship. She suffers from the persistent dread that employers or co-workers could discover the material, harming her professional reputation and livelihood. She characterized the defendant’s conduct as deliberate and sustained, noting multiple videos remained online for an extended period and that the defendant actively engaged with comments on the platform.
The Offender
[5] Mr. Scapillati is a 37-year-old Canadian citizen. He is self-employed and works in the home renovation business but is currently unemployed due to a serious hand injury. He has a close relationship with his mother, his girlfriend, and has continuing family support.
[6] The defendant is not a first offender, with three previous convictions. The first, for uttering threats, occurred in 2007, when he received a suspended sentence and 12 months probation. The next, for criminal harassment, occurred in 2017, when he received a suspended sentence after having spent 23 days in pre-sentence custody. He was also convicted of “over 80” that year.
[7] Troublingly, both his 2007 uttering threats and 2017 criminal harassment convictions were committed against different former intimate partners. The first offence is quite dated. The second offence occurred ten years after the first, seven years before he committed the offence for which I am sentencing him. Despite the relative datedness of these offences, I find that when his most recent offence is considered, his criminal record demonstrates pattern of unacceptably problematic behaviour vis a vis former partners and highlights the need for specific deterrence. This pattern is more concerning given that Mr. Scapillati is now closer to middle age than the youthful adult he was when he was first convicted in 2007.
[8] Mr. Scapillati participated in the PSR process but limited the sources of collateral information the PSR author could contact because he had not told his family about these proceedings. I accept his explanation that he was not trying to manipulate the process but was simply too embarrassed to tell his mother but the fact that he limited the sources who could speak about him before this sentencing is less than ideal. I was advised during the sentencing hearing that he has since told his mother about this matter. The practical reality of the Crown’s sentencing position is that, had it been accepted on the date of the sentencing hearing, Mr. Scapillati would have entered custody, such that his mother would have inevitably learned about his offending.
[9] More concerning, however, is the fact that the PSR author observed that Mr. Scapillati acknowledged committing the offence but continued to place blame on the victim, minimized his behaviour, and took limited accountability for his offending. I do not understand, given the facts of this offence, how the victim could be blamed in any way, as she had nothing whatsoever to do with his non-consensual distribution of these images.
[10] When Mr. Scapillati addressed the court, he focussed on how he wanted to be a step-father to his girlfriend’s child and did not want to be separated from them. He said he had no ill intent and did not post the videos out of hate. Perhaps most tellingly, he said that if he knew he would get into trouble for posting these videos, he would not have done so. What is striking about these comments is the complete lack of empathy or understanding they demonstrate about how unequivocally wrong his conduct was or how it has impacted the victim.
[11] When I consider Mr. Scapillati’s comments, in connection with those expressed by the PSR author, I have no trouble concluding that the defendant lacks insight into his offending. If his distribution of these videos was not motivated by anger or malice, it was undoubtedly motivated by selfishness and self-centredness. Nothing in the PSR or the defendant’s statement to the court suggests that he appreciates why his conduct was wrong. The lack of insight he continues to demonstrate is not aggravating but is relevant to my assessment of the need for specific deterrence and Mr. Scapillati’s rehabilitative prospects.
[12] In terms of positive factors, Mr. Scapillati has no mental health issues or substance abuse issues. The PSR author noted that he has a supportive family, is in a stable relationship, and has positive involvement with his girlfriend’s child.
[13] Defence counsel has tendered evidence that Mr. Scapillati completed a 9-hour anger and relationship program offered by the Salvation Army and also a 3-session victim impact program. These are positive if modest strides but the programs were completed in the summer of 2025, one year before this sentencing, and, in my view, were not sufficient to help him gain insight into his offending.
Relevant Sentencing Principles
[14] The principles of sentencing are set out in ss. 718, 718.1 and 718.2 of the Criminal Code. The fundamental principle is proportionality – a sentence must reflect the gravity of the offence and the degree of responsibility of the offender. Section 718.2(b) provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The range of sentence for similar offences appears to be broad, from a conditional discharge for a young first offender in R. v. A.C. 2017 ONCJ 129, a sentence that appears to be an outlier, to lengthy conditional sentences imposed in R. v. Boucetta 2024 ONSC 1046 and R. v. Eleuthere 2026 ONCJ 316, to sentences of between 5 and 18 months real jail in R. v. Ha 2023 ONCJ 75, R. v. Weedon 2023 ONCJ 317, and R. v. J.S. 2018 ONCJ 82.[1]
[15] It is statutorily aggravating, under s. 718.2(a)(ii) of the Code, that this offence was committed against a former intimate partner. Further, section 718.2(a)(iii.1) of the Code provides that a court shall take into consideration evidence that the offence had a significant impact on the victim. I accept the victim’s expression of the devastating impact the defendant’s conduct has had and continues to have on her.
[16] Sentencing objectives of denunciation and deterrence clearly take precedence at this sentencing. This offence was a complete breach of the victim’s privacy, autonomy, and sexual integrity. In this context, I quote from R. v. J.R., [2018] O.J. No. 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.
[17] In R. v. A.C. 2017 ONCJ 317, a first offender posted intimate images on multiple websites with the victim’s identifying name attached. He was sentenced to 5 months in jail, at a time when this offence was punishable with a maximum sentence of 6 months. In doing so, Rahman J. (as he then was) observed: “where intimate images are publicly distributed and the victim is identifiable, imprisonment will often be required to satisfy denunciation and deterrence.”
[18] Mr. Scapillati is not a first offender and is not young but because this this will potentially be his first jail sentence, the principle of restraint codified in ss. 718.2(d) and (e) of the Criminal Code applies. It requires me to consider all sentences other than imprisonment that are reasonable in the circumstances and, if incarceration is required, to impose the shortest period that will achieve the relevant sentencing objectives.
Aggravating Facts
[19] The most aggravating fact relates to the distribution itself. Graphic sexual images that clearly showed the victim’s face were publicly accessible for approximately one year on one of the world’s largest pornography websites. I situate this conduct on the far end of the spectrum of seriousness given the nature of the content, the platform, and the amount of time that the videos were available for public consumption.
[20] Defence counsel submits that this conduct would have been worse if the defendant had purposely targeted his distribution of these videos at people the victim knew, in an attempt to harm her. I disagree with this submission. The defendant posted these images on a public forum that potentially made the videos available to anyone who had ever known the victim in her personal or professional life. As if any proof for this proposition was required, it is admitted that her relative saw these videos.
[21] This offence involved a breach of trust as contemplated by s. 718.2(a)(iii). The defendant’ s betrayal of the trust of his former intimate partner was made worse by the fact that he had previously lied to her about deleting the videos. It is aggravating that this offence was committed against a former intimate partner. Further, the physical and emotional impact on the victim was significant and has done real, understandable damage to her sense of trust, safety and dignity. Her ongoing fear that the videos may resurface is completely understandable.
[22] As mentioned, the defendant’s criminal history, in conjunction with the current offence, demonstrates an aggravating pattern of antisocial conduct towards former intimate partners, a pattern that seems to be lost on him.
Mitigating Facts
[23] The main fact that is mitigating here is the defendant’s guilty plea. It signals an acceptance of responsibility and remorse and has had the salutary effect of not requiring the victim to testify at a trial. But in my view, its mitigating value is attenuated in some respect by the fact that the plea was not entered for almost two years, and was entered after trial dates on what appears to be a very strong Crown were set and vacated. This plea has mitigating value but less than it would if it had come earlier in the process.
[24] Mr. Scapillati is not the father or the stepfather of a child, nor is he the primary earner in his girlfriend’s family. I accept that his girlfriend and her son will be adversely impacted by Mr. Scapillati’s incarceration but find this collateral consequence to be relatively minor, given that he does not reside with that family, has no legal status with them, and does not provide for them financially. In my view, these circumstances are very different from the collateral consequences contemplated in R. v. Habib, 2024 ONCA 830 and lack the sort of impact that could really influence consideration of what sentence is fit here: R. v. D.P.R., 2026 ONCA 548 at para. 37.
[25] Defence counsel argues that a conditional sentence is appropriate, having regard to the principle of restraint, the summary election, the defendant’s plea, and the particular facts. A conditional sentence has five pre-conditions: the offence that is being sentenced must not be specifically excluded; the offence must not be punishable by a minimum term of imprisonment; the sentence must be less than two years; the safety of the community would not be endangered by serving the sentence in the community; and a conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.
[26] The first three preconditions are met here. After some reflection on the relationship between my concerns about the need for specific deterrence and the requirement in section 742.1(a) that a conditional sentence not endanger the community, I am satisfied, based on how long Mr. Scapillati has been on bail without incident and because of his personal supports, that community safety would not be endangered were he to serve his sentence in the community.
[27] Ultimately, though, I conclude that the imposition of a conditional sentence would be inconsistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code. In my view, because of the aggravating facts and the defendant’s high degree of moral blameworthiness, a conditional sentence would be insufficient to achieve denunciation and deterrence. I say that mindful of the authorities that counsel relies on where conditional sentences have been imposed for this offence, and also mindful of the principle that conditional sentences are capable of achieving meaningful denunciation and deterrence: R. v. D.P.R., supra, at para. 39. I also come to that conclusion after considering the principles of restraint set out in ss. 718.2(d) and (e) of the Criminal Code.
[28] The facts of this case most closely resemble R. v. Ha 2023 ONCJ 75, where a youthful first offender who had made real rehabilitative efforts received a 5-month jail sentence after a guilty plea. In R. v. Weedon 2023 ONCJ 317, a 34-year old first offender received a 12-month sentence after trial but was also found guilty of mischief by altering computer passwords and criminal harassment for sending harassing messages to the victim. I find that Mr. Scapillati’s wide distribution of these videos was more serious than was the case in R. v. Weedon but recognize that the harassing aspect in Weedon is absent here.
[29] But for the defendant’s guilty plea and the fact that he has never received a custodial sentence before, I would accept the Crown’s position that 15 months is fit. But, after balancing the aggravating and mitigating factors here, I conclude that a 10-month jail sentence is fit and appropriate. In my view, this is the shortest sentence that can achieve the primary sentencing principles of denunciation and deterrence. Mr. Scapillati will also be subject to a probation order for 2 years and a DNA order.
SOIRA
[30] Distributing intimate images contrary to s. 162.1 of the Code is a primary designated offence as provided by s. 490.011 (1) of the Code but a SOIRA order is not mandatory here because the Crown proceeded summarily, the applicant will not be sentenced to a penitentiary term, and the victim is over the age of 18. Section 490.012(3) of the Code provides that where the court imposes a sentence for a person who has committed a designated offence in these circumstances, it shall make a SOIRA order unless the offender has established:
(a) there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under that Act; or
(b) the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under that Act.
[31] Section 490.012(4) provides that in determining whether to make an order under subsection (3), the court shall consider
(a) the nature and seriousness of the designated offence;
(b) the victim’s age and other personal characteristics;
(c) the nature and circumstances of the relationship between the person and the victim;
(d) the personal characteristics and circumstances of the person;
(e) the person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence;
(f) the opinions of experts who have examined the person; and
(g) any other factors that the court considers relevant.
[32] In R. v. Eldon 2025 ONCA 348, the Court of Appeal emphasized that SOIRA orders are presumptive and that the threshold for refusing one is high. When I consider the factors in s. 490.012(4), I find that the nature and seriousness of the designated offence, and the former intimate parter relationship, are the most relevant factors and clearly favour making the order. Although the videos in question were taken consensually, Mr. Scapillati lied to the victim about the fact that he had deleted them. After, he made them as widely available as possible, without her knowledge, for a lengthy period of time. He committed this offence as a mature adult who had previously received the benefit of two rehabilitation-focussed sentences for offences committed against former intimate partners.
[33] I conclude that Mr. Scapillati has failed to rebut the presumption that the SOIRA order should issue. In my view, he has failed to establish that there is no connection between the SOIRA order in these circumstances and the purpose of helping police prevent or investigate crimes of a sexual nature. He has also failed to establish that the impact of the order would be grossly disproportionate to the public interest. He will be subject to a SOIRA order for 10 years.
Dated: August 12, 2026
Justice Peter Scrutton
1In J.S., supra, many of the distributed recordings were captured surreptitiously.