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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct 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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Date: 2018-01-30
Court File No.: Central East – Newmarket 4911-998-15-07673-00
Between:
Her Majesty the Queen
— and —
J.S.
Before: Justice A.A. Ghosh
Heard on: December 20, 2017 and January 30, 2018
Reasons for Judgment released on: January 30, 2018
Counsel:
- P. Colavecchia — counsel for the Crown
- D. Basile — counsel for the offender J.S.
Judgment
GHOSH J.:
Overview
[1] They were dating and agreed to occasionally video record their sexual activity. None of the videos were intended for public view. After a time she found the cameras unsettling and declined to participate in further recordings. Then she began finding hidden cameras. At one point she located on his laptop publicly posted videos of their sexual activity. Her name was tagged. She demanded that he fix it. He said that he would and, instead, continued to post videos of their sexual activity on a variety of online platforms. Then strangers began contacting her.
[2] J.S. pleaded guilty to the offence of "publication of intimate images without consent, contrary to s. 162.1(1) of the Criminal Code. Counsel jointly submitted for a sentence of 18 months imprisonment with three years of probation. For the reasons that follow, I accept the joint submission.
Facts
[3] J.S. and the victim, L.K., began an intimate relationship in September of 2012. He was 30 years old at the time. She was 19 years old.
[4] During the course of their relationship, the victim consented to requests by J.S. to have some of their sexual activity video recorded. She made it known that these recordings were only for his private viewing. After a time she became uncomfortable with this arrangement and told the offender that she no longer wished to be video recorded.
[5] Sometime later, during the winter of 2013, the victim located a hidden camera in the fireplace of his bedroom and confronted him about it. They argued. On a subsequent occasion she found a cell phone hidden in a pile of clothes with its camera directed to the general area where they would have sex. She took the phone from him. They argued again.
[6] On a later date the two of them were watching videos on his laptop. He inadvertently clicked on a pornography site and her eyes were drawn to a thumbnail image of a video. The image captured her face while apparently engaged in a sexual act. The image was tagged with a graphic description and her full name.
[7] She confronted the offender about the video. He told her that the video was set to private and was not publicly available. She noted that the video had been rated by others. They argued.
[8] L.K. then conducted an internet search on Google of her own name. She found several videos of herself and J.S. engaged in sexual acts. They argued again. He eventually promised to have them removed from the internet. He never does so.
[9] In February of 2015, the victim received a message on Facebook Messenger from a bartender employed by a party service in Rotterdam, Netherlands. This person had viewed some of the explicit footage of the victim online.
[10] J.S. later placed on advertisement on the "Backpages" website in the "escort" section that included several images of the victim with her name and phone number and a description that included the phrase "I'm into anything". L.K. in one night received over 300 calls or messages in response to that advertisement. The victim did not welcome or consent to any of this.
[11] In April of 2016, the victim received a text message from an unknown person named "Jessica" from a website called "sexyfriend.com". L.K. was asked about her work as an escort.
[12] The victim reported her concerns to the police. The investigator discovered online a total of 11 videos of the victim engaged in sexual activity. All of them bore the name of the victim and were posted by J.S. As of December of 2017, several of the videos had been viewed over 10,000 times.
Circumstances of the Offender
[13] J.S. is a 36-year-old first time offender. He had been struggling with an addiction to "crystal meth" for some years and then moved on to a variety of opiates. He has been on and off the methadone program for the past eight years. Sustained abstinence has eluded him.
[14] J.S. has been employed as a cement truck driver for the past five years. Counsel has submitted three reference letters in support of the offender. The offender's mother reflected on how the sudden and unexpected death of his father deeply impacted her son and the rest of the family. She views her son as a compassionate, helpful, community-oriented person with another more pro-social side to him.
[15] The godmother of J.S. also views him as a decent, supportive individual. His uncle characterizes him as caring and empathetic. Being in service of others is a discernable theme in the submitted letters.
[16] When invited to address the court, J.S. stated: "I regret everything that I've done."
Victim Impact Statement
[17] L.K. submitted a victim impact statement. She has been devastated by this offence and has tried to commit suicide on several occasions. She has been diagnosed with several psychiatric conditions, including depression and anxiety.
[18] Since ending the relationship with the offender, L.K. has achieved a degree of sobriety. She is concerned about the prospect of relapsing, and has added addiction counselling to the host of commitments she has undertaken to address her physical and mental health.
[19] L.K. has been plagued by feelings of loneliness and self-loathing and is struggling to carry on. She lives with thoughts of suicide on a daily basis. She observed: "I've been at constant battle with my own thoughts and feelings eating away at me until there's nothing left. Like a disease with no cure."
Analysis
Applicable Principles of Sentencing
[20] Sentencing an offender for the "publication of intimate images without consent" engages deterrence and denunciation as the primary sentencing objectives. The limited jurisprudence in our province supports that separation of the offender by way of a term of conventional incarceration will ordinarily be called for.
[21] Given the offending may have been informed by addiction and other challenges with mental health, rehabilitation must be considered as well. J.S. violated the trust placed in him by a domestic partner, engaging s. 718.2(a). As always, the principles of parity and proportionality must be applied.
Sentencing Jurisprudence
[22] Since the offence provision was proclaimed in March of 2015, only a handful of reported sentencing decisions have been released in our province. It is clear that a term of custody will ordinarily be warranted.
[23] For example, in R. v. B.H., Justice Dorval, with some apparent reluctance, imposed a custodial term at the top end of the 30-to-90-day range submitted by the Crown. In doing so, the court observed: "Ninety days of incarceration is at the very low end of the range for this offence. I impose that sentence for the sole reason that that is the range of sentence sought by the Crown and no doubt considered by Mr. B.H. in entering a plea of guilty." B.H. had dated the victim and secretly video recorded their sexual activity. He later posted the videos on a pornography website. He did not have a criminal record.
[24] Given the joint submission, I do not propose to fulsomely review the jurisprudence. I do commend the analysis of Justice Rahman in R. v. A.C. as one of the more authoritative sentencing decisions from our court to date. His Honour reviewed the legislative history of the offence provision and the limited sentencing jurisprudence available before weighing the competing considerations in arriving at a custodial sentence.
[25] The circumstances in A.C. can be readily distinguished from the present matter, but the analysis is resonant. A.C. pleaded guilty to the non-consensual sharing of intimate images of a former intimate partner. The victim had agreed to participate in all of the videos and photographs that formed the subject matter of the charge. Then the relationship ended.
[26] Without the victim's consent, A.C. posted several of the videos and photographs on a variety of websites, including multiple sites dedicated to "revenge porn". He often included the full name and other identifiers of the victim along with degrading descriptions of the victim and the activity captured. The Crown proceeded summarily and sought the maximum custodial sentence available of six months. The offender had no prior record.
[27] A.C. sought a conditional discharge, primarily reliant on the decision of Justice D.A. Harris of our court in R. v. Calpito. Justice Harris in his reasons acknowledged that the facts and disposition in that case were exceptional and that the primary applicable objectives of denunciation and deterrence could not ordinarily be satisfied by the imposition of a discharge.
[28] In sentencing A.C. to a five-month custodial term, Justice Rahman observed that had the Crown proceeded by indictment he would have imposed, after trial, a custodial term in the mid-reformatory range. In rejecting a non-custodial disposition, the court noted:
In my view, only a sentence of imprisonment would be proportionate to the gravity of this offence and would properly give effect to general deterrence and denunciation. In fact, I find it difficult to believe that anything other than a sentence of imprisonment could properly give effect to deterrence and denunciation in circumstances where intimate images are disseminated over the internet and where the victim is identifiable.
[29] In declining to impose a conditional sentence of imprisonment as an alternative, the court further noted:
To put it bluntly, I find it hard to believe that facing the prospect of house arrest would deter someone, like the offender, who is considering humiliating his former partner on the internet. I also find it hard to believe that a period of house arrest can express adequate denunciation of this extremely serious breach of … privacy.
Aggravating and Mitigating Factors
[30] The following aggravating factors have been established beyond a reasonable doubt:
i. Significant impact on the victim – s. 718.2(a)(iii.1): L.K. has attempted to kill herself on multiple occasions as a result of the offender's conduct. That is the most obvious of the varied and layered consequences she continues to experience.
ii. Breach of trust: J.S. egregiously violated the trust his young girlfriend had placed in him.
iii. Repeated distribution over the objections of the victim: Upon each discovery of hidden cameras and then the online postings, L.K. directed the offender to stop. Instead of complying, J.S. continued to post her intimate images.
iv. Surreptitious recordings: The fact that the victim had consented to participating to some of the recordings is a neutral consideration on sentence. It is highly aggravating, however, that J.S. also secretly recorded their sexual activity and then posted the videos without her knowledge.
v. The breadth of the distribution: A total of 11 videos were located online of the victim engaged in sexual activity. Many of them had been viewed in excess of 10,000 times.
vi. The nature of the images: The images could not be more private. The videos displayed a variety of graphic sexual acts including oral sex and vaginal penetration. Some of the videos captured close-ups of the victim's anal and vaginal regions.
vii. Degrading descriptions: Many of the videos and images were accompanied by graphic and humiliating descriptions drafted by J.S.
viii. Personal identifiers of the victim: The victim's full name and contact information were displayed on some of the publicly posted images. Strangers contacted the victim.
[31] The following mitigating factors have been made out as well:
i. Guilty plea: Early in the proceedings, J.S. had expressed through counsel his desire to plead guilty and accept a custodial sentence of some length. While J.S. did not apologize or acknowledge the harm done by his crime, he expressed "regret".
ii. No criminal record: J.S. is a first time offender.
Discussion and Sentence
[32] The sentencing jurisprudence in our province establishes that the offence of distributing intimate images without consent will commonly attract a term of conventional incarceration. Satisfaction of the identified primary sentencing objectives of deterrence and denunciation will usually require this.
[33] It is valuable to be reminded that the impetus behind the enactment of this offence provision was to address the tremendous human toll associated with this generally vile conduct. Victims frequently experience depression and anxiety. In notorious instances, they have killed themselves. The offenders are almost exclusively male – their victims, often girls and women.
[34] The inferred impact on victims is substantial and the moral responsibility of the offender will generally be high. The act involves a flagrant intrusion into the privacy and personal dignity of the victim. The accompanied intent will often involve a desire to degrade, humiliate and maintain the illusion of some control over the victim.
[35] The fact that the victim may have consensually participated in recording sexual activity in no way impacts or diminishes the moral responsibility of the offender. To conclude otherwise engages retrograde thinking surrounding the interplay of sex, privacy, consent and control. Where, as in this case, the offender also secretly records the sexual activity to be later distributed, the moral responsibility is dramatically heightened.
[36] As the Crown has proceeded by indictment, the maximum sentence for this offence is five years. These facts are among the more abhorrent that I am aware of. J.S. could well have faced a penitentiary sentence upon conviction after trial.
[37] I am mindful that J.S. is a first time offender and has been struggling with addiction and mental health issues. However, this was not an offence driven by impulse. Rather, it was a repeated and calculated course of action apparently designed to diminish and degrade the vulnerable victim. The consequences have been significant and lasting.
[38] I accept the joint submission as appropriate. J.S. will be sentenced to 18 months of custody. He will also be placed on probation for 3 years with terms identified in Appendix "A". My thanks to counsel.
Released: January 30, 2018
Signed: "Justice A.A. Ghosh"
Appendix "A" – R. v. J.S.
Probation Conditions
A. Keep the peace and be of good behavior.
B. Appear before the court when required to do so.
C. Notify the court or probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation.
D. Report in person to a probation officer within 2 working days of your release from custody and after that, at all times and places as directed.
E. Live at a place approved by your probation officer and not change that address without the prior consent of your probation officer.
Specific Conditions
A. You are not to contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with the victim.
B. You are not to be within 500 m of the place where you know the victim to live, work, go to school, frequent or any place you know her to be.
C. You are not to possess any weapons as defined in the Criminal Code, which would include a firearm, imitation firearm, cross-bow, prohibited weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person.
D. You must attend and actively participate in all assessments, counselling or rehabilitative programs as directed and complete them to the satisfaction of your probation officer for substance abuse, life skills or as directed.
E. You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
F. You are not to publish, distribute, transmit, sell, make available or advertise any sexually explicit material or intimate material on the internet.
G. You are not to possess, access, publish, distribute, sell, make available or advertise any images of the victim by computer, electronic or other means.
