Court Information
Ontario Court of Justice
Before: Justice S. Ray
Heard: May 6, May 12, and June 3, 2016
Reasons for Judgment Released: September 7, 2016
Parties and Counsel
Crown: L. Henderson and J. Gibson
Defence: G. Chan
Introduction
[1] B.Z. has pled guilty to one count of criminal harassment contrary to s. 264 of the Criminal Code, RSC 1985, C-46. He spent 4 days in pre-sentence custody before he was released on bail. This is the equivalent of 6 days in custody on a 1.5 to 1 basis. The Crown submits that a suspended sentence with 12 months probation would be a fit, appropriate, and proportionate sentence in this case that would take into account the time spent in pre-sentence custody. The Defence seeks an absolute discharge.
The Facts
[2] The agreed statement of facts attached as Appendix A has been entered as an exhibit. Briefly summarized, it is admitted that the Accused and the Complainant became romantically involved, when he was 16, and she was 14. At Mr. B.Z.'s request, the Complainant took photos of herself and posted them on a private internet site that only the two of them could access, when she was 17 and he was 19. The Complainant subsequently discovered that Mr. B.Z. had anonymously placed ten of these nude and semi-nude photos with her face visible on a pornographic website to which the public had access with the initial comment, "Rate and what would you do to her, Cum on her pics?" The Complainant had never consented to this, and the posting indicated that there had been 1,333 views. The photos had been made available to the public for two years during the time that the two were romantically involved. The Complainant had the photos removed and ended the relationship.
[3] The impact of this crime has been devastating for the Complainant. According to her victim impact statement, she felt as if she had been assaulted with her battered body displayed for all to see, when she first found out. She wrote the following in her victim impact statement:
I sat in my chair frozen in disbelief. How could someone who claimed they cared about me and reassured me countless times that nobody would see these images, do such a thing? As reality set in I began to cry as I felt my world falling apart. I do not usually experience emotions so strongly, but at this time feelings of anger, guilt, and sadness overpowered me. There was no way I could make the 1,300 people who viewed the thread "unsee" my naked underage body. There was no way I could erase the images off of the computers of the people, who downloaded them. There was no way I could prevent these images from surfacing in the future and destroying my career and life that I have worked so hard to build. I have never felt more violated, belittled, and vulnerable. Despite these feelings I mustered up the courage to attend my calculus class that evening. I sat alone in the back corner and cried. That was the first and last time I attended that class…This was the beginning of a downward spiral.
[4] The downward spiral began with the Complainant finding herself unable to leave her room or attend class, engaging in self-destructive behaviours, and experiencing growing feelings of darkness and emptiness. She became depressed, anxious, and terrified over the knowledge that 1,300 people had seen her underage nude body and feared having these images reappear. She expects to suffer indefinitely. She continues to experience difficulties with relationships and friendships, inability to trust, and apprehensiveness over new relationships. She feels betrayed and broken. The victim's own words express the destructive impact of this crime:
B.Z. was young when he did this to me but I was younger… he took advantage of me as a child and destroyed my life…He had two and a half years to remove the images but instead left them up for the world to view. B.Z. is set to start his career and graduate in four years. Because of his actions he took that opportunity away from me.
[5] Mr. B.Z. is 23 years old. He is a talented young pianist, who has just completed his fourth and final year at the R[…] School. He has a bright future ahead of him, whether it be in music or another field. He has no criminal antecedents. When his wrongdoing was discovered, he expressed remorse, acknowledged his betrayal of trust, and cooperated with police. He participated in counselling to gain insight into what he did. Through this, he has come to realize that his misconduct was a form of "bragging" about how attractive his then-girlfriend was. His subjective intention was to brag rather than humiliate or degrade, but any reasonable person would find the comment that he posted with the photos to be a form of demeaning sexual objectification and coupled with the photos, an unacceptable hurtful affront to the subject's human dignity. The Complainant clearly found it so.
[6] The Accused was originally charged with possessing, accessing, and distributing child pornography, and was severely stigmatized within his school community as a result. The stigma associated with child pornography exceeds any that would accompany a charge of criminal harassment or some of the other options available under the Criminal Code for criminalizing non-consensual sexting or distribution of intimate images. The Dean of his music school described in a letter that he was "shocked." A loyal friend noted in another letter filed as an exhibit that "the news spread like wildfire around the school." His reputation was tarnished, and he was called "sociopath" and "psychopath." The Associate Dean in another letter explained that, "B.Z. was very well-liked by his colleagues and faculty prior to the charges. He has maintained many close friendships, but the stigma that resulted from the original charges related to "child pornography" remains and has had a significant impact on him. As one could imagine, when his colleagues became aware of these charges they were dumbfounded. Careers are made by the relationships one develops with their peer group, and just being charged with such a serious crime has considerably damaged his professional reputation and chances for success moving forward…" But some remained loyal to him, including his new girlfriend, who described him as "loving," "caring," "upstanding," and "honest," in a letter to the court, and another classmate who in another letter to the court gratefully acknowledged his discretion and support through her struggle with bi-sexuality, which she discussed with him, and there was no gossip. In addition, Mr B.Z. has strong family support.
[7] Even the criminal harassment charge to which he has pled guilty is a "serious concern," according to the Defendant's Associate Dean, who explained in the same letter that "a vulnerable sector check" is required for many employment opportunities in the arts, and a conviction for criminal harassment would be "one that most definitely would impact consideration for employment in a negative way."
[8] Mr. B.Z. has also been on bail for over 14 months, during which time he has been prohibited from accessing the Internet except while on school property and with the permission of school staff; and he has been completely banned from accessing social networking sites such as Facebook.
The Law
[9] The offender is to be sentenced for the offence to which he had pled guilty, which is criminal harassment. He is not being sentenced for possession of child porn or under the new s. 162.1.
[10] The "tariff" for the offence of criminal harassment is very broad, and depends on the facts of the case, circumstances of the offender, aggravating, and mitigating factors (see R v TCD [2012] AJ 1372(QL)). It ranges anywhere from an absolute discharge to seven years' incarceration (Ruby et al., Sentencing, 8th ed. (Toronto: LexisNexis, 2012) at 23.856). The sentences imposed for this type of offence carry a range from a conditional discharge to up to six months imprisonment for a summary conviction offence (R v Fader [2009] BCJ 412). The Crown has elected to proceed by way of summary conviction on the criminal harassment charge against Mr. B.Z., the maximum penalty for which is prescribed by sections 264(3)(b) and 787 of the Criminal Code; a fine of not more than $2,000 or imprisonment for six months or both. There is no minimum sentence.
[11] In R v Lacasse 2015 SCC 64, the Supreme Court of Canada explained at paragraph 58 that, "There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation."
[12] Section 718.1 of the Criminal Code mandates that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[13] In accordance with the fundamental purpose of sentencing, which is to contribute to respect for the law and the maintenance of a just and peaceful society, section 718 requires that a just sentence will fulfill one or more of the following objectives:
- To denounce unlawful conduct
- To deter the offender and other offenders from committing offences
- To separate offenders from society, when necessary
- To assist in rehabilitating offenders
- To provide reparation for harms done to victims or to the community
- To promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community
[14] In imposing a sentence, Section 718.2 requires the Court to take into consideration that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, sentences must be similar for similar offenders and similar offences, committed in similar circumstances. An offender should not be deprived of his or her liberty if there are less restrictive sanctions that would be appropriate in the circumstances. All available sanctions, other than imprisonment that are reasonable in the circumstances, should be considered.
[15] Section 730(1) of the Criminal Code grants the Court discretion not to convict an offender, who pleads guilty or is found guilty of a criminal offence. The discretion applies to offences for which a minimum punishment is not prescribed by law and offences publishable by imprisonment for fourteen years or for life. If the Court considers it to be in the best interests of the Accused and not contrary to the public interest, the Accused may be discharged absolutely or conditionally and subject to a probation order pursuant to s. 731(2).
[16] The usual criteria that courts use for assessing whether it is in the best interest of the Accused and not contrary to the public interest are explained in R v Elsharawy (M), 119 CCC (3d) 565 (Nfld CA), at pp 566-67:
The first condition presupposes that the accused is a person of good character, usually without previous conviction or discharge, that he does not require personal deterrence or rehabilitation and that a criminal conviction may have significant adverse repercussions. The second condition involves a consideration of the principle of general deterrence with attention being paid to the gravity of the offence, its incidence in the community, public attitudes towards it and public confidence in the effective enforcement of the criminal law.
[17] Discharges are not limited to trivial matters. There is no rule that discharges are not an option if the offence involves the abuse of a position of trust or authority. There is also no rule that a discharge cannot be granted where there is a need for general deterrence or denunciation. Discharges have been granted in these circumstances, where there is a single wage earner responsible for the support of children, and it is regarded by the Court to be in the public interest for the offender to be reintegrated into society without the stigmatization of a criminal conviction (see R v Omene [2014] SJ 18 (Sask QB), and R v Barilko [2014] OJ 792 (Ontario Superior Court)).
Gravity of the Offence
[18] Heightened public awareness over the prevalence of non-consensual distribution of intimate images has led to public inquiries that have led to the Report of the Nova Scotia Task Force on Bullying and Cyberbullying released on February 29, 2012, and the June 2013 CCSO Report to the Federal/Provincial/Territorial Ministers Responsible for Justice and Public Safety, following which Nova Scotia enacted the Cyber-Safety Act, permitting the issuance of protection orders to stop cyberbullying (SNS 2013, c 2; in force August 6, 2013), and Parliament created a new criminal offence specifically targeting this type of criminal behaviour. Whether or not all or parts of Nova Scotia's new Cyber-Safety Act are ultra vires its enactment reflects heightened public awareness and concern over the growing prevalence of non-consensual and harmful displays of intimate photographs on the internet. The new section 162.1 of the Criminal Code came into force after the commission of this offence in March 2015. The offence covers non-consensual sexting, which often begins with consensual sexting, as it did in this case.
[19] The Nova Scotia Report notes at page 12 that "sexting" is the term coined for sending sexually suggestive messages or photos by cell phone or over the Internet. The Report notes starting at the same page that:
Sydney, Cape Breton made national news in December 2011, when local police revealed that more than 100 students, some as young as 13-years old, were involved in distributing sexually explicit images of themselves, friends, or acquaintances, and many individuals were surprised that legal consequences, such as criminal charges for distributing child pornography, could be associated with these incidents, although no such action was pursued. A 2008 Canadian study by the national Campaign to Prevent Teen and Unplanned Pregnancy reports that 19% of all teen respondents aged 13-19, and 22% of teenage girl respondents, participate in sexting. A Pew Research Centre Internet survey further indicates that 15% of teen respondents aged 12-17 years old, who own cell phones, report receiving suggestive photos of someone they know.
[20] D. Atwood J, has referenced the heightened public awareness over the prevalence of the non-consensual distribution of intimate images and its criminalization pursuant to the new section 162.1 at paragraph 9 of his judgment in R v CNT [2015] NSJ 293, where he notes that, "…this province and this country underwent a transformational shift in recognizing the vulnerability of young people – particularly females – to trauma, psychological harm, serial victimization and predation as a result of [non-consensual sexting]. At paragraph 11, Atwood J notes that, "Sexting evolves frequently into a pattern of escalating risk-taking behaviour," and, "Sexting is indelible: once an intimate image is transmitted, even if to one recipient only, its digital footprint is embedded in binary cement." There is a disparate impact on vulnerable young females of precisely what Mr. B.Z. did to the Complainant in this case, which she poignantly described in her victim impact statement, such that they merit being characterized as a vulnerable class of victims requiring the Court's protection. The Ontario Court of Appeal in R v Petrovic, 47 OR (2d) 97, and in R v Inwood (page 18) recognized the existence of vulnerable classes of victims that required the Court's protection that heightened the need for general deterrence. Children are recognized at international law as a vulnerable class of victims, and the Supreme Court of Canada acknowledged and understood this in R v Sharpe 2001 SCC 2.
[21] Incidents of non-consensual distribution of intimate images and non-consensual sexting dovetail the increased use of technology for communication purposes in our society, and the escalating risk-taking behaviour that sexting leads to, which has in turn created a new class of vulnerable persons requiring the Court's protection, and a crime that is more prevalent in our community than was previously the case. The increased prevalence of precisely the crime that Mr. B.Z. committed in this case, charged under the rubrique of criminal harassment, heightens the general gravity of this offence. The gravity of the offence is also heightened by the following case specific factors:
- Mr. B.Z.'s offending conduct was not an "isolated" or "out of character" act, as it persisted over a two-year period
- The "breach of trust" and ongoing deceit and betrayal occurred while Mr. B.Z. continued to engage in an intimate, purportedly loving relationship with the Complainant, while objectifying her and violating her sexual dignity and privacy rights – this is at least as serious as a "revenge porn" scenario or sending the images to friends or peers
- The impact on her ability to form future trusting intimate relationships cannot be underestimated
- The images in question meet the Criminal Code definition of child pornography. Their dominant characteristic, the depiction, for a sexual purpose, of the sexual organs of a person who was under the age of 18 and as such met the definition of child pornography set out in s. 163.1
- The comment, "rate and what you do to her. Cum on her pics," that was posted with the photos demonstrates an intention to degrade and humiliate the victim. Mr. B.Z. is inviting other users of the site to use these images as a tool for their own sexual pleasure, and to describe what they would do to her. This not only violates the victim's privacy, but also invites other users to degrade her by describing the sexual acts they would perform. This element of sexual objectification and degradation increases the potential for psychological harm
- The pictures were of a person, who was under 18 years of age
[22] Consensual sexting is generally regarded as a normal part of the exploration of sexuality during puberty among youths, and although the Supreme Court of Canada in R v Sharpe would not yet have heard of such a practice, it has not yet been suggested that when the practice is private and consensual, that it does not fall under the rubrique of the exclusive personal use exception, which the Court found poses no reasonable risk of harm to children. That providing naked photos of oneself to others has apparently become a common practice among young persons is acknowledged in the caselaw (see for example R v SB [2014] BCJ 2990 (BC Prov Court)). It is when sexting becomes non-consensual, when it extends beyond the intimate relationship, and when privacy is lost, that it becomes harmful and as such, it has been criminalized.
[23] I would rate the gravity of the offence committed by Mr. B.Z. as high based upon the prevalence of non-consensual sexting coupled with the case-specific factors enumerated above that aggravate the seriousness of Mr B.Z.'s criminal behaviour.
Degree of Responsibility of the Offender
[24] The Defence has submitted in this case that Mr. B.Z. had no intention to harass the victim. He was simply reckless. I disagree. He was fully aware of the content of the photos that he posted. The admitted facts demonstrate a desire by him to spread the images widely on the Internet. He protected his own identity by uploading the images anonymously. The victim was not afforded such protection. Although Mr. B.Z. did not provide her name or address, her face was visible in the photos. Seven of the images exposed her breasts, and four showed her pubic area. Although Mr. B.Z. did not directly send the images to the victim's classmates or friends, he uploaded the images in which her face was visible on a publicly accessible website. At least one viewer commented that he thought that he knew the victim.
[25] It is also evident that Mr. B.Z. intended to distribute the images as widely as possible. Mr. B.Z. checked the number of views and comments several times per week soon after posting and eventually stopped checking for approximately one year. He then became curious again and emailed himself the link to the site so that he could track the comments and views. This was not merely reckless. He was fully aware and he fully intended the images to be widely distributed. He posted them on a website, where they were shared with 1,333 viewers, and he knowingly placed them there for that purpose.
[26] Thought and planning went into posting the photos. Mr. B.Z. would have to have chosen which photos he would post, think about the comment he would post them with, and according to the agreed statement of facts, he checked the comments of the viewers with some frequency. This was not a momentary lapse of judgment or a thoughtless one-time mistake. It was a continuing offence.
[27] For all of these reasons, I would rate the degree of responsibility of the offender as high.
Objectives of Sentencing
[28] Denunciation and general deterrence are important considerations in this case, given the affront to the high value society places on human dignity and privacy within the context of close intimate relationships. The deceit and breach of trust within the context of the facts and circumstances of this case call out for denunciation and general deterrence. Mr. B.Z. still appears to view what he did as a "a big mistake." It was more than a mistake. It was a deliberate and continuous act that occurred over a protracted period of time in order to satisfy his need to brag over the attractiveness of his girlfriend, a much less important need than the needs of the Complainant for privacy, dignity, and trust within the context of an intimate relationship. Specific deterrence is also called for. But for this offence, Mr. B.Z.'s character and achievements speak for themselves. The steps he has taken to rehabilitate himself are commendable. His rehabilitation potential is high.
[29] There is no need to separate Mr. B.Z. from society. He has apologized and tried to make amends to the victim for the harm done. He has taken responsibility by pleading guilty and attending counselling to gain insight into what caused his harmful criminal behaviour. He has acknowledged the harm done to the victim.
Circumstances of the Defendant
[30] As noted by his Associate Dean in a letter to the Court, a criminal harassment conviction would seriously impact on the Defendant's relationship with his peers and his future career prospects. A career in the arts would require travel, which would be impeded even by a conditional discharge (see R v Di Gianni [2011] OJ 5981, para 49).
[31] Devastating consequences for the academic pursuits and employment opportunities of an offender are relevant factors for the court to consider in mitigation of sentence. In R v Bunn 2000 SCC 9, the Supreme Court of Canada agreed at paragraph 23 that the ruin, humiliation, and loss of professional status can provide sufficient denunciation and deterrence, when coupled with a conditional sentence.
[32] In all other respects, Mr. B.Z. is an outstanding achiever and contributing member of society. He has been described by the Dean of his school as "an exceptional student on all levels." The Associate Dean has described him as an "exemplary student" with the possibility of a very important career as a major solo artist." Mr. B.Z.'s musical accomplishments include having won the extremely competitive R[…] School Concerto Competition and performing the T[…] Concerto with the R[…] Orchestra in February 2016 to a standing ovation. His character has also been praised by loyal friends and family. Given his exemplary antecedents, a conviction would have an above average impact on his life.
Other Mitigating Factors
[33] When confronted by the Complainant over his wrongdoing, Mr. B.Z. admitted it and apologized immediately. He has been remorseful and candid about what happened from the very beginning. He cooperated with the police. He participated in counselling to gain insight into what he did.
[34] Mr. B.Z. has in some respects already been punished for his crime. Paragraphs 6 and 7, above, summarize the damaging impact the charges have had on his career and his relationships, particularly the possession of child pornography charge to which he has not pled guilty, which carries a more significant stigma than other criminal offences due to the general relationship of that crime with pedophilia.
[35] There is no evidence in this case of secondary distribution of the intimate photos or cyberbullying.
[36] The Defendant's guilty plea has saved the victim from the experience of having to be re-traumatized by testifying about her distressing ordeal at trial. It has also saved the state the time and expense of prosecuting this case, which was scheduled for three days of trial, and included a complex s. 7 Charter challenge to the child pornography provisions of the Criminal Code.
[37] Mr. B.Z. is a youthful first offender.
[38] Mr. B.Z. has been on bail for over 14 months, during which time he has been prohibited from accessing the Internet except while on school property and with the permission of school staff; and he has been completely banned from accessing social networking sites such as Facebook.
The Accused's Best Interest and Not Contrary to the Public Interest
[39] Given the exemplary antecedents and lack of criminal record of the Accused, it would clearly be in the best interest of the Accused for the Court to exercise its discretion to grant a discharge. A conviction would undoubtedly have significant adverse repercussions. However, the excellent rehabilitation potential of the Accused and the additional hardship that would be incurred by the Defendant should the Court not exercise its discretion to grant a discharge, either absolute or conditional, does not outweigh the gravity of the offence, the degree of responsibility of the offender, and the need for denunciation and deterrence in this case, which is high. This is not a suitable case in which the court should exercise its discretion pursuant to the discharge provisions of the Criminal Code.
Conclusion
[40] A short period of custody would be a proportionate, fit, and appropriate sentence in this case. The Accused has already served 4 days in pre-sentence custody, which is the equivalent of 6 days in custody on a 1.5 to 1 basis. This is an appropriate case in which to grant credit on a 1.5 to 1 basis. Since a short period of custody has already been served, I am suspending Mr. B.Z.'s sentence and placing him on a non-reporting probationary period for 12 months during which time he will comply with the statutory conditions of probation and report immediately once only to probation. There will be no contact or communication directly or indirectly with the Complainant. He will not possess any images of the Complainant in this case that meet the definition of intimate images set out in the new s. 162.1 of the Criminal Code.
[41] I have considered whether or not I should also prohibited Mr. B.Z. from accessing the internet except while on school property and with the permission of school staff and from accessing social networking sites such as Facebook. This prohibition was a condition of his bail, which he found onerous, but he did comply with it. It was likely included in his bail conditions in order to protect the Complainant. I do not believe that the Complainant requires the protection of this condition any longer given the success so far of Mr. B.Z.'s rehabilitation efforts and my inclusion in the probation order of a no contact provision with her. I am also in agreement with the comments of MacDonnell J in R v Yau 2011 ONSC 1009, [2011] OJ 720 (Ontario Superior Court) (QL) at paragraph 42 with respect to a similar condition restricting access to electronic communication, in which he says that imposing such a term is "more likely to impair rather than facilitate" the offender's "reintegration into the community, because access to and communication through digital media have rapidly become not only pervasive features of modern life, but also essential parts of the way in which individuals interact with other individuals and institutions in the community."
[42] I have also considered the Crown's submissions that counselling is required, and I have reviewed the report that has been filed as an exhibit commenting on the counselling that has already been completed. It is my view that, given Mr. B.Z.'s success with the counselling he has already completed, no more counselling is necessary.
Released: September 7, 2016
Signed: Justice S. Ray