WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a ) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the 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.
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections 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 486.5(1) or (2) , read as follows:
486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES — (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2.1) OFFENCES – The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsections 486.4(1) to (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2023 10 04 COURT FILE No.: Hamilton Information No. 20-6168
BETWEEN:
HIS MAJESTY THE KING
— AND —
MICHAEL MIKHAIL
Before Justice J.P.P. Fiorucci Heard on March 3 and June 8, 2023 Reasons for Sentence released on October 4, 2023
Counsel: A. Lepchuk and C. Gzik.................................................................... counsel for the Crown A. Manek......................................................... counsel for the Defendant, Michael Mikhail
FIORUCCI J.:
Introduction
[1] Michael Mikhail entered guilty pleas to three counts of surreptitiously making a visual recording of a person for a sexual purpose, in circumstances that gave rise to a reasonable expectation of privacy, contrary to s. 162(5) of the Criminal Code. These three charges related to three different female victims, who were unknown to Mr. Mikhail. Mr. Mikhail also entered a guilty plea to knowingly distributing an intimate image of a former intimate partner without her consent, contrary to s. 162.1(1) of the Criminal Code.
[2] The Crown proceeded by indictment. Mr. Mikhail elected to be tried and enter his guilty pleas in the Ontario Court of Justice.
[3] On the same information, Mr. Mikhail was charged with s. 162(5) offences relating to five other women who were also unknown to him. When Mr. Mikhail entered his guilty pleas to the four charges set out above, facts relating to the outstanding charges pertaining to these five remaining victims were read in on consent of both Crown and Defence counsel.
[4] Through his counsel, Mr. Mikhail admitted the facts relating to the five additional victims. Both Crown and Defence counsel took the position that these facts could be considered, pursuant to the principle of sentencing in R. v. Garcia and Silva . [1] The Crown has agreed to withdraw the charges relating to the five additional victims.
Circumstances of the Offences and Impact on the Victims
L.G. (Count 2):
[5] Mr. Mikhail entered a guilty plea to the offence of knowingly distributing an intimate image of L.G., knowing that she did not give her consent, contrary to s. 162.1(1) of the Criminal Code.
[6] Mr. Mikhail operated an online account titled, “Mikhail Rails” for the pornographic website Pornhub. He submitted countless videos of women to this pornographic site, with captions that included sexually derogatory comments.
[7] From July to October of 2016, Mr. Mikhail dated L.G.. During this time, he surreptitiously took photos of her in the nude, and while they were engaging in intimate sexual acts. L.G. had no knowledge that Mr. Mikhail had taken these nude photos of her and had not consented to nude photos being taken of her. Mr. Mikhail took the photos while the couple was in his bedroom, where L.G. had a full expectation of privacy. She only learned of the photographs in March of 2020 when a friend told her that there were nude photos of her posted to the Pornhub website with the title, “Found my ex’s nude”. Mr. Mikhail had posted the nude photographs of L.G. to the website using his Pornhub account, “Mikhail Rails”.
A.B. (Count 3):
[8] Mr. Mikhail entered a guilty plea to surreptitiously making a visual recording of A.B. for a sexual purpose, in circumstances that gave rise to a reasonable expectation of privacy, contrary to s. 162(5) of the Criminal Code.
[9] Mr. Mikhail was a member of the GoodLife Fitness located at 640 Queenston Road in the City of Hamilton. In November of 2019, A.B. was working out at this location. While A.B. was using a weightlifting machine, Mr. Mikhail was seated behind her and surreptitiously video recorded her, focusing in on her buttocks as she bent over during her fitness routine. A.B. noticed that Mr. Mikhail was secretly recording her. She alerted the GoodLife staff. Mr. Mikhail immediately fled the facility. A.B. did not know Mr. Mikhail.
[10] On March 7, 2020, an acquaintance of A.B. told her that Mr. Mikhail had posted the video of her to his Pornhub account, “Mikhail Rails”, with the caption, “Smoke show blonde with fat ass candid!!...I get caught at the end”.
[11] A.B. provided a Victim Impact Statement, which is Exhibit 4 in the proceedings. She explained how Mr. Mikhail turned “what used to be a place where I felt most confident, strong and safe, into a place where I now feel intimidated, scared, and vulnerable” and “a place where I feel exposed, uncomfortable and untrusting of the people around me”. A.B. detailed in her Victim Impact Statement how this incident has impacted not only her personal but professional life as well:
I am a [REDACTED] employee and unfortunately for me, this information is known between my colleagues and superiors. It is degrading, humiliating, and damaging to my reputation as a professional to have had this video circulating publicly. The violation is unspeakable, the uneasiness is unimaginable, and the trauma is irreversible. The feeling that I need to constantly be looking over my shoulder, not just in a gym setting, but in everyday life, is something that I have struggled with since this occurrence and will continue to struggle with going forward.
You used my body for your own personal gain against my will and without my knowledge. You exploited me on a pornographic website to thousands of people to use for your own and their own sexual satisfaction…
J.D. (Count 4):
[12] Mr. Mikhail entered a guilty plea to surreptitiously making a visual recording of J.D. for a sexual purpose, in circumstances that gave rise to a reasonable expectation of privacy, contrary to s. 162(5) of the Criminal Code.
[13] In February of 2020, J.D., who was 17 years old at the time, was working out at the GoodLife Fitness. While she was laying down exercising her hamstrings, Mr. Mikhail surreptitiously video recorded her, focusing in on her breasts as she laid on her stomach and propped herself up on her elbows. J.D. did not know that Mr. Mikhail was videotaping her.
[14] Mr. Mikhail posted this video to Pornhub using his account. He titled the video, “Sexy teen with great cleavage!!”. On March 9, 2020, J.D.’s mother learned from an acquaintance at the GoodLife Fitness that the video of her 17-year-old daughter was posted to Pornhub. At that time, J.D. and her mother were not aware that this video existed.
[15] The following are excerpts from J.D.’s Victim Impact Statement, which is Exhibit 2:
I was 17 at the time you decided to sexualize and objectify my body for the entire internet to see. I just started going to the gym, starting to learn how to not be insecure in my own skin. As much as I don’t want to give you the power, you took so much from me. In fear you wouldn’t get caught, I had to switch gyms farther away from where I was once comfortable. You took my dignity as a woman in the gym, and for a period, I questioned my place.
You created a hypersensitive person who fixates on whether that person’s phone is facing me slightly. Because of you, I’ll always leave my house wondering if today someone will think that my body and my clothing are theirs to benefit from and take as their own.
C.H. (Count 13):
[16] Mr. Mikhail entered a guilty plea to surreptitiously making a visual recording of C.H. for a sexual purpose, in circumstances that gave rise to a reasonable expectation of privacy, contrary to s. 162(5) of the Criminal Code.
[17] On March 8, 2020, C.H. viewed a post on Instagram with details about a series of videos posted to Pornhub that captured females from the Queenston Road GoodLife during workouts. C.H. saw a list of videos posted to Pornhub under “Mikhail Rails” and identified herself as the subject of two videos.
[18] The first was recorded on October 3, 2019, and had the title, “Perfect ass on fit blonde… candid creep”. This video depicted a close-up of C.H.’s buttocks as she was exercising on a glute machine. The second video was recorded on October 16, 2019. On Pornhub, this video was titled, “Perfect blond with a perfect ass!!”, and it also showed a close-up of C.H.’s buttocks while she was using a cable machine. C.H. did not know that Mr. Mikhail video recorded her on either of these two occasions, she did not consent to the video recording, and she did not know Mr. Mikhail.
Facts to be Considered pursuant to R. v. Garcia and Silva:
[19] Mr. Mikhail also admitted the following facts relating to the five other complainants. The Crown and Defence counsel agreed that these facts would be considered in determining Mr. Mikhail’s sentence.
[20] On January 2, 2020, Mr. Mikhail surreptitiously video recorded S.C. multiple times while she was working out at the GoodLife Fitness. Mr. Mikhail posted multiple videos of S.C. to his Pornhub account, entitling the group of videos, “Attention seeking PAWG at gym, wow”. The parties agree that “PAWG” stands for “Phat Ass White Girl”. Mr. Mikhail also added the caption, “Creep shot at gym” to the videos.
[21] On March 7, 2020, GoodLife Fitness alerted S.C. that there were videos of her posted to Pornhub. S.C. viewed the videos to confirm they depicted her. She had no prior knowledge that these videos existed. On March 8, 2020, Mr. Mikhail initiated a text conversation with S.C. via Instagram Messenger. In this text conversation with S.C., Mr. Mikhail claimed that he was being targeted as a scumbag on social media, denied being responsible for the videos, and told her that he was being targeted because his name was the same. Mr. Mikhail’s professed denials to S.C. were untrue, as he was indeed responsible for posting the videos to the Pornhub website.
[22] On March 7, 2020, C.M. received a message from a friend indicating that someone had taken videos of her and posted them to Pornhub. C.M. obtained a link to a video that depicted her. She also checked other videos and identified a second video that was posted of her. C.M. was not aware that she had been video recorded and did not give her consent for any such recording.
[23] The first video was recorded in January of 2020 at GoodLife Fitness, was titled, "Ultimate PAWG at the gym," and showed a close-up of her buttocks while she was engaged in physical activity on the incline treadmill. The second video was recorded in September of 2019, also at GoodLife Fitness. This video had the title, "Thick white girl at the gym." Again, it was a close-up of her buttocks while she was engaged in physical fitness activity on a StairMaster cardio machine. C.M. had never met or had any contact with Mr. Mikhail.
[24] In January of 2020, J.F. was working out at the GoodLife Fitness. Mr. Mikhail video recorded her bending over, focusing on her buttocks for an extended period. Mr. Mikhail posted the video to his Pornhub account with the title, "Red head goddess thick like oatmeal". On March 7, 2020, an acquaintance of J.F. alerted her that the video had been posted to Pornhub. J.F. had no prior knowledge that this video existed.
[25] Between December of 2019 and January of 2020, T.C. was working out at GoodLife Fitness. Mr. Mikhail video recorded T.C. while she was working out and posted the video to Pornhub. The video of T.C. had the title, "Super sexy blonde, had to hide my boner". In March of 2020, an acquaintance from GoodLife Fitness advised T.C. that Mr. Mikhail had posted the video of her to Pornhub. She had no prior knowledge that the video existed.
[26] In October of 2019, while working out at the same GoodLife Fitness, S.K. paused in front of a mirror and bent over to pick up weights. Mr. Mikhail was behind her, and video recorded her, focusing in on her buttocks. S.K. did not know that she was being secretly recorded. Mr. Mikhail posted this video of S.K. to Pornhub with the title, "Perfect assed blonde".
[27] In February of 2020, Mr. Mikhail again secretly video recorded S.K. while she was working out at the GoodLife Fitness. She was on a back extension machine and Mr. Mikhail was behind her. The recording again focused on her buttocks. Mr. Mikhail posted the video to Pornhub with the caption, "Butt cheek galore, yum". S.K. was notified on March 7, 2020 that these videos were posted to the pornographic website.
[28] The following is an excerpt from S.K.’s Victim Impact Statement, which is Exhibit 3:
As a woman who uses the gym and other communal spaces regularly-this act caused a lot of fear and lost my trust in other men in public spaces. I did not go to the gym for several months in a communal setting out of fear and judgment. I felt like any person at the gym could be recording me and posting it for personal pleasure and it made me sick to my stomach. Working out was such a joyful thing for me and I honestly feel like this incident has changed my experience and enjoyment in a gym setting. [2]
[29] Each of the nine female victims were identifiable in the posts to Pornhub because their faces were visible.
[30] A pre-sentence report (PSR) relating to Mr. Mikhail was prepared by a probation and parole officer. It is filed as Exhibit 1 on the proceedings. Section 721(3)(a) directs that, unless otherwise specified by the court, the report must, wherever possible, contain information about the offender’s age, maturity, character, behaviour, attitude, and willingness to make amends. The purpose of the PSR is to assist the court in imposing a fit and just sentence. [3] As Justice Trotter stated in R. v. Aleksev , “… a PSR is not a forum for the expression of views by those impacted by the offence. There is a separate procedure for obtaining input from victims in s. 722 of the Criminal Code”. [4]
[31] The author of Mr. Mikhail’s PSR sought input from the complainants in the case. J.F. and C.M. provided input to the probation and parole officer about the impact of these offences on them, and their input is contained in Mr. Mikhail’s PSR. By including the input of these complainants in the PSR, the probation and parole officer went beyond the proper ambit of a PSR.
[32] Although the sentiments expressed by J.F. and C.M. are consistent with how other victims described the impact of these offences in their Victim Impact Statements, I must disregard those portions of the PSR. I wish to make it clear that I have no doubt that J.F. and C.M. were impacted in the manner they describe; the impact that one would expect a victim of these offences to experience.
[33] A PSR should not include any facts or commentary about the offence or the role the offender played in the offence. [5] Accordingly, I have also disregarded statements made by Mr. Mikhail to the author of the PSR regarding the reason that he uploaded the videos to the internet.
Circumstances of the Offender
[34] The PSR contains details regarding Mr. Mikhail’s background and personal circumstances. Mr. Mikhail has no prior criminal record. He is 30 years old. Mr. Mikhail advised the author of the PSR that he had a very positive upbringing, with parents who were loving and supportive, and with whom he continues to have a wonderful relationship. He continues to reside with his parents.
[35] Mr. Mikhail’s mother confirmed that there were no issues or concerns with Mr. Mikhail throughout his childhood or upbringing, describing him as a well-mannered person who presented them with no challenges. Mr. Mikhail is part of a close-knit family. He is also close with his older brother, who is now married.
[36] Mr. Mikhail met his fiancée, A.H., in February of 2020 and they began dating in June of 2020. Mr. Mikhail described their relationship as “a dream”. A.H. has remained supportive of Mr. Mikhail throughout the court process and described him as “everything [she] wants in a partner”.
[37] Dr. Rita Bradley performed a psychological assessment on Mr. Mikhail. Her report is Exhibit 6 in the proceedings. During his assessment with Dr. Bradley, Mr. Mikhail “reported that he now has a girlfriend who is very supportive and helpful in his quest to understand the root causes of his issues.”
[38] Mr. Mikhail graduated from high school with a grade 12 education. He did not attend post-secondary education. He is presently unemployed and supported by his parents.
[39] In 2020, Mr. Mikhail had been working as a coater/painter for three months at a manufacturing company when his mother was diagnosed with breast cancer. The author of the PSR wrote that Mr. Mikhail left his job to support his mother. However, Mr. Mikhail reported to Dr. Bradley that he quit this job because he did not like the working conditions as his then girlfriend’s father was a “head honcho” in the company and other workers were aware of his (Mr. Mikhail’s) involvement with his daughter.
[40] Prior to his employment at the manufacturing company, Mr. Mikhail worked for three years as a supervisor at a casino, between November of 2016 and December of 2019. According to Mr. Mikhail, at present, he remains focused on supporting his mother. However, he expressed a desire to return to the casino for employment in the future.
[41] According to the author of the PSR, Mr. Mikhail showed good insight into, and accepted responsibility for, his behaviour. Mr. Mikhail described his actions as “stupid” and “sickening” and told the probation and parole officer that he has a sexual infatuation with the buttocks of attractive females. He went on to say that “he would never seek out a victim but, if by circumstance, he was attracted to a victim, he felt the need to video them.”
[42] Mr. Mikhail expressed at length to the probation and parole officer how upset and “disgusted” he is with his behaviour, recognizing that he disappointed people in his life and stating that he is mostly upset for the victims. He acknowledged that he had not considered how his actions could be harmful to a victim and stated a desire to apologize to the victims if permitted.
[43] Mr. Mikhail was charged with the offences on March 11, 2020. Defence counsel has filed materials outlining the steps Mr. Mikhail has taken, since being charged, to address his mental health. Mr. Mikhail told the author of the PSR that he has come to identify as having a sex addiction through his assessment and involvement with Dr. Bradley, and by attending a virtual support group for sex addicts.
[44] Dr. Danielle O’Toole is Mr. Mikhail’s family doctor. Dr. O’Toole’s reports, which are filed as Exhibit 7, confirm that Mr. Mikhail was initially referred to St. Joseph’s Hospital Community Psychiatry Services Assessment on February 8, 2021 and was assessed by Dr. Wesley Sutton on August 27, 2021. According to Dr. O’Toole, “Dr. Sutton diagnosed that Mr. Mikhail’s presentation would be most in keeping with an adjustment disorder in addition to probable narcissistic personality traits and did not meet the criteria of paraphilia”.
[45] Dr. O’Toole’s letter dated November 19, 2021 states that, after Dr. Sutton’s assessment, Mr. Mikhail requested a referral to the Mental Health consult team at their clinic, McMaster Family Practice, for second opinions. The McMaster Family Practice Mental Health team suggested referral to The Centre for Addiction and Mental Health sexual behaviour clinic and the Forensic Psychiatry Program at St. Joseph’s Hospital. Dr. O’Toole’s November 19, 2021 letter also stated that Mr. Mikhail reported that he had been regularly attending the Sex and Love Addicts anonymous group for support in the past six months.
[46] In January of 2022, Defence counsel referred Mr. Mikhail to the Canadian Mental Health Association, Mental Health Court Support Services. Lisa Boyle’s letter dated April 14, 2022, states that Mr. Mikhail had taken several steps to address his mental health and seek support for his past sexual behaviours, which included completing a Cognitive Behaviour Therapy program. Ms. Boyle’s letter also confirmed that Mr. Mikhail had expressed willingness to pursue further supports related to sexual behaviour as he had “identified a desire to better understand his past behavior and prevent any risk of resorting to similar behaviours in the future”.
[47] Dr. Bradley’s report (Exhibit 6) is dated October 21, 2022. Dr. Bradley stated that the purpose of her psychological assessment was to provide her clinical opinion on Mr. Mikhail’s recidivism risk as well as on treatment issues.
[48] At p. 2, Dr. Bradley indicated that “[w]hile this assessment remained incomplete, Mr. Mikhail participated in 6 hours of psychological examination with me on 3 separate occasions that included a clinical interview and administration of some psychometric measures”. Mr. Mikhail provided Dr. Bradley with consent to utilize data from the 2021 psychiatric assessment performed by Dr. Sutton.
[49] At p. 3 of her report, Dr. Bradley stated, “[o]n cognitive issues, Mr. Mikhail disclosed his information coherently and with sufficient detail. There were no gross memory deficits. His communication abilities were consistent with his level of education”.
[50] Dr. Bradley’s report contains the following passage at p. 4:
[Mr. Mikhail] did disclose details about his sexual charges in the context of addressing his ongoing worries about them. He reported that he was unaware that taking photographs of females at his local gym and then uploading these photos to a pornographic website were illegal acts. He reported that he was not aroused by this behaviour and that he had “full remorse” for this behaviour and that he “struggles to determine what the motivation was for this behaviour”.
[51] At p. 8 of her report, Dr. Bradley stated:
…Mr. Mikhail went on to explain that he was engaged at the time of his sexual offending and was having a difficult time with his fiancé. He did not attend his GoodLife Fitness gym for the purpose of taking video recordings of female buttocks. Yet he remembers seeing a female “with a nice bottom…took a photo” and put it in a secret folder on his computer. He did not want it to be discovered by his fiancé so he uploaded it to a site [PornHub] “only reason I was hiding it from my ex…I know I am not addicted…there was no secondary agenda”.
[52] During what Dr. Bradley described as “somewhat time limited inquiry about Mr. Mikhail’s understanding of his offence”, she identified the presence of minimization tendencies. Dr. Bradley attributed this to factors such as the time that had elapsed between his arrest and her assessment and the lack of treatment follow-up. Nonetheless, Dr. Bradley stated that Mr. Mikhail acknowledged the need “to have a well-grounded understanding of his sexual offending that remains salient and to also actualize his life goals to include self-improvement ones”.
[53] Dr. Bradley rendered only provisional diagnoses of Histrionic Personality Disorder and Fetishistic Disorder-Body Part (female buttocks). In her report, at p. 11, Dr. Bradley went on to state:
I believe there is validity in Mr. Mikhail’s report that he did not know that surreptitious videotaping of females’ buttocks or breasts, and posting them on a pornography site, was illegal.
[54] Furthermore, Dr. Bradley stated: “Mr. Mikhail’s naivete can be understood in light of his life experiences to date in addition to psychological outcomes in this assessment.” She cited the following examples as the basis for her opinion: “he has always lived with his parents, his employment experiences have been largely unskilled, he did not pursue post-secondary education as was his initial plan following completion of high school and following his recovery from a motor vehicle accident, and he had difficulty adjusting in a work environment where there may have been higher expectations and more interpersonal challenges”.
[55] In her report, Dr. Bradley cautioned that Mr. Mikhail’s sexual history and relationship history warrants further examination as there was no opportunity to fully explore these issues. She did say that file documentation shows that there were previous incidences in which Mr. Mikhail took pictures of the buttocks of females, and that “[w]hile he denies this was a source of sexual pleasure for him, I believe such is most unlikely”.
[56] Dr. Bradley stated in her report that Mr. Mikhail’s risk to reoffend falls in the low risk level range but notes that “[i]n the sexuality and risk responsibility domain, treatment will be required to address his sexual behaviour and sexual offending and sexual interests to ensure a sound relapse prevention plan is developed and maintained”. According to Dr. Bradley, Mr. Mikhail also falls in the low-risk range for general recidivism.
[57] Dr. Bradley points out that Mr. Mikhail readily accepts the need for treatment, accepted full responsibility at the outset of her assessment and acknowledged such during Dr. Sutton’s August 2021 psychiatric assessment. Mr. Mikhail conveyed to Dr. Bradley an understanding of the seriousness of his behaviour and demonstrated some insight into victim issues. Dr. Bradley also stated that Mr. Mikhail’s response to her report when she reviewed it with him, “is an excellent prognostic indicator that he will be actively engaged in treatment for sexual offending issues”. She opines that it bodes well that he will be a one-time offender.
[58] Dr. Bradley’s report confirms that Mr. Mikhail attended the Sex and Love Addictions Anonymous group, via Zoom, until December of 2020, and participated in Cognitive Behavioural Therapy which was not specific to sexual deviance or sexual offending. Although Mr. Mikhail could not remember if he “opened up” during this therapy, he reported to Dr. Bradley that he did find the treatment helpful.
[59] The author of the PSR spoke with Mr. Mikhail’s mother, who acknowledged the remorse her son has expressed for his actions. She believes that he has learned from his mistakes. She describes her son as having a “gold heart”.
[60] Mr. Mikhail’s fiancé, A.H., also spoke with the probation and parole officer and described a marked shift in Mr. Mikhail’s critical thinking since accessing mental health supports. She noted his insight into his behaviours and his self-awareness recognizing his previous entitled attitude. A.H. discussed Mr. Mikhail’s empathy towards his victims and his realization of the harm he caused them. A.H. expressed no ongoing concerns regarding Mr. Mikhail’s sexual behaviours.
[61] Defence counsel filed letters of support on behalf Mr. Mikhail, including a letter from Mr. Mikhail’s father and the letters of three long-time friends of Mr. Mikhail. The overarching theme emerging from the input provided by those who support Mr. Mikhail is that his offending behaviour is out of character, he has expressed to them his remorse, and that he has focused on being a caregiver to his parents who have both experienced medical issues.
Positions of the Parties
[62] Crown counsel asks me to impose a global sentence of 18 months jail followed by a 3-year probation order and a DNA order. The Crown says that a conditional sentence of imprisonment would not adequately address the principles of denunciation and deterrence that are paramount in this case.
[63] Defence counsel seeks a conditional discharge with 12 to 18 months of probation or, in the alternative, asks that I consider the appropriateness of a conditional sentence of imprisonment. Defence counsel submits that a DNA order is not necessary in the circumstances.
Legal Principles
[64] Section 718 of the Criminal Code instructs that the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. Sentencing judges strive to achieve this goal by imposing just sanctions that have one or more of the following objectives: (a) denunciation of the unlawful conduct and the harm done to victims or to the community that is caused by the unlawful conduct; (b) specific deterrence of the offender and general deterrence of other persons who might commit similar offences; (c) separation of offenders from society, where necessary; (d) assistance in rehabilitating offenders; (e) reparations for harm done to victims or to the community; and (f) promoting a sense of responsibility in offenders, and acknowledgment of the harm they have caused to victims or to the community.
[65] Ultimately, the fundamental principle of sentencing, set out in s. 718.1 of the Criminal Code, is to impose a sanction that is proportionate to the gravity of the offence committed and the degree of responsibility of the offender.
[66] The totality principle in s. 718.2 (c) of the Criminal Code requires sentencing judges to ensure that the ultimate effect of the combined sentence for multiple offences does not “deprive the offender of any hope of release or rehabilitation.” [6]
[67] The principle of restraint is contained in ss. 718.2 (d) and (e) of the Criminal Code mandating that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances; and 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.
[68] Crown counsel relied on three cases to support their position that a custodial sentence of 18 months is appropriate: R. v. Dewan , [7] R. v. A.C., [8] and R. v. Ha . [9]
[69] Dewan predates the enactment of the s. 162.1 offence of distributing an intimate image without consent. Dewan entered guilty pleas to one count of mischief and one count of criminal harassment. The sentencing judge granted the offender two months’ credit for his time served and sentenced him to a suspended sentence and two years’ probation on the mischief charge, and to 90 days’ imprisonment, to be served intermittently on the criminal harassment charge.
[70] The appellant had already served the effective sentence of five months’ imprisonment by the time the Ontario Court of Appeal heard the appeal. Dewan asked the Ontario Court of Appeal to substitute a conditional discharge for his criminal convictions. He argued that the convictions would end his prospects of pursuing a career in the regulated financial industry, or a related field.
[71] The mischief charge related to a co-worker with whom Dewan wanted to be more than friends. The co-worker did not share his feelings, yet the offender continued to contact her daily. She did not respond. When the co-worker told the offender that she had contacted the police, he distributed an e-mail, purporting to be from the co-worker to nine other co-workers. The e-mail degraded the co-worker professionally sexually and physically. The impact on the co-worker was significant. These events occurred between 2001 and 2003.
[72] The criminal harassment charge in Dewan arose out of events that occurred between 2008 and 2009. The circumstances surrounding this charge were akin to conduct which is now dealt with under the s. 162.1 distribution of intimate images offence. Following the breakup of an intimate relationship which lasted six months, Dewan persisted in attempting to contact the woman. When his attempts at communication were rebuffed, Dewan sent an e-mail to the human resources department of the woman’s employer, purporting to be from her. Again, this e-mail degraded the woman professionally, sexually, and physically, and suggested that she was a drug user.
[73] A naked photograph of the woman was also attached to the e-mail. It was a photo that had been taken with consent during their relationship. The woman had asked Dewan to delete it when their relationship ended, and he had agreed to do so. Dewan distributed the same package of material to the doorman and property manager of the woman’s condominium and to the neighbours on her floor. Comments made by the offender in counselling established that his actions toward the woman were calculated to hurt her. This woman described the impact on her life as devastating.
[74] The Court of Appeal dismissed the appeal in Dewan . At paragraph 13, the Court said:
Having regard to the nature and seriousness of these offences, we are of the view that, even taking account of the appellant's positive prospects and five months' time served, imposing a conditional discharge would be contrary to the public interest. Intimate partners must be free to terminate a relationship without fear of abuse, whether physical or psychological, or retaliation of any kind. Even taking account of five months' time served, imposing a conditional discharge would not reflect the level of denunciation these offences deserve.
[75] In A.C. , the victim Googled her name and found private videos of herself having sexual intercourse, and private nude photos of herself with her face visible. A.C. had uploaded the private images onto various websites several months after he and the victim had ended their relationship. He entered a guilty plea to one count of distributing intimate images under s. 162.1 of the Criminal Code.
[76] The Crown sought a 6-month jail sentence and probation. The Defence position was a conditional discharge with a 3-year probation term including punitive conditions. During their relationship, the offender had taken the intimate videos of the victim with her consent. He also took nude photos of her, and she had sent nude photos of herself to him. The victim never gave A.C. permission to share any of these videos or photos with anyone else or to post them online.
[77] At paragraphs 5 and 6 of A.C. , Justice Rahman, who was then a judge of the Ontario Court of Justice, set out the details of the offender’s conduct. On one website, the offender posted five videos, in which the victim was nude, accompanied by sexually explicit titles which included her first and last name. The victim’s face was visible in at least one of the videos. A.C. posted videos of the victim to another website on which the victim’s name (including a middle name), her age and her city and country of birth also appeared. This identifying information was accompanied by vulgar and degrading comments about the victim and suggested she suffered from depression and bipolar disorder. The offender also posted seventeen nude photos of the victim to another website with her name attached. Her face was also visible in many of these photos.
[78] A.C. was 32 years old and had no criminal record. For sentencing, Justice Rahman accepted that, at the time he committed the offence, A.C. was depressed because he believed that the victim had been unfaithful to him and that she had an abortion without his knowledge.
[79] Justice Rahman’s decision in A.C. was released in May of 2017. He observed that, since s. 162.1 was a relatively new offence at the time, having been proclaimed into force on March 9, 2015, there was “a dearth of sentencing case law for this offence.” [10]
[80] Justice Rahman noted that the provision protects privacy and is designed to capture conduct colloquially known as “revenge porn”, exactly the type of conduct in A.C.’s case. As Justice Rahman stated, “[t]he more people to whom the image is exposed, the greater the invasion of privacy and the greater the harm caused to the victim.” [11]
[81] The aggravating factors in A.C. included: i) the victim’s face was visible in many of the photos and at least one of the videos; ii) the offender attached the victim's name, age, ethnicity and place of birth to many of the images; iii) the offender engaged in a deliberate act motivated by a vengeful intention to humiliate the victim; iv) the offender expressed a desire to share more content online and was only prevented from doing so by upload restrictions; v) the offence had a devastating emotional impact on the victim and she continued to face harassment from strangers; and vi) the offence involved a breach of trust, because the offender uploaded images taken within an intimate relationship. [12]
[82] Justice Rahman included amongst the mitigating factors the fact that A.C. had no criminal record and had entered a guilty plea to the offence, which was entitled to some credit as it saved valuable judicial resources and provided finality for the victim.
[83] In rejecting the offender’s request for a conditional discharge in A.C. , Justice Rahman reviewed the three reported cases provided by the Crown. Defence counsel for Mr. Mikhail relies on two of these cases to support his position: R. v. Calpito, [13] and R. v. P.S.D . [14]
[84] In Calpito , the offender had been in a dating relationship with the victim for three years in high school. The victim had taken nude photographs of herself and sent them to Calpito during their relationship and had consented to him taking photographs/videos of her naked.
[85] Calpito and the victim went to separate universities but maintained a relationship, seeing each other on weekends and holidays when they returned home. In November of 2015, the victim reported to police that Calpito was threatening to post nude pictures of her online and to send nude pictures to her mother unless she spoke with him. After police spoke with Calpito, his relationship with the victim was strained but they continued to date off and on.
[86] Then, in April of 2016, several of the victim’s friends from university and her employer alerted her that they had received seven nude pictures of her through a social media site, Instagram. The victim recognized five of the photographs as ones she had provided to Calpito. Calpito admitted to police that he had sent the photos to her friends. Prior to sentencing, he acknowledged that he sent the pictures out on Instagram because he wanted revenge.
[87] Mr. Calpito was a 21-year-old first offender. He entered guilty pleas to the distributing intimate images offence and for breaching his undertaking not to have contact with the victim. Justice Harris granted Calpito a conditional discharge with three years of probation, relying on mitigating factors such as the guilty pleas, the absence of a criminal record, repeated expressions of remorse since being charged, his finding that Calpito appeared to fully appreciate the impact that the offence had on the victim, strong family support which tended to bode well for his future rehabilitation, and three actual days spent in pre-sentence custody.
[88] Justice Harris recognized that general deterrence and denunciation were the most important sentencing principles in the case. He found that these principles would be satisfied by a conditional discharge with a three-year probation order with onerous conditions, including home confinement for the first three months, and a curfew for the next three months.
[89] In P.S.D. , the offender entered guilty pleas to distributing an intimate image and breaching his bail recognizance. P.S.D. and the victim were both in their early twenties and had been in a long term “on again/off again” relationship that began when they were teenagers. During an “off again” period, P.S.D. was pursuing the victim’s attention, but she was rejecting his communication and attempts to meet with her, which made him very frustrated. One night, however, when the victim returned home from a night out with friends, P.S.D. was in the driveway of her family’s home. The couple left together in her car.
[90] At some point, the victim was partially clothed in the car, and without her consent, P.S.D. took pictures of her on his phone. He sent some of the pictures to two friends with instructions to save them and with the intention at that time to cause the victim emotional harm. The pictures were blurry and included portions of the victim's bare breasts. It was also somewhat difficult to recognize the victim in the pictures. The offender had spent sixty actual days in pre-sentence custody (90 days with enhanced credit).
[91] Justice Sudeyko of the British Columbia Provincial Court found that it would be contrary to the public interest to grant P.S.D. a discharge for the distribute intimate image offence because “the significant harm that can be caused by such behavior requires that the objectives of denunciation and general deterrence are paramount.” [15]
[92] Justice Sudeyko stated, “[h]owever, taking into account the particular circumstances of this offence as a rash action within the context of this volatile and dysfunctional relationship, the relatively low level of harm that has occurred, and the positive rehabilitative prospects for this first time offender, I also find that a jail sentence is not necessary.” [16]
[93] The sentence imposed on P.S.D. for the distribute intimate image offence was a suspended sentence and probation. He was granted a conditional discharge for the breach of recognizance, with a concurrent probationary term. As Justice Rahman observed in A.C., in P.S.D. , “[i]t is unclear to what extent the sentencing judge took the pre-sentence custody into account in fashioning the sentence.” [17]
[94] The third case that Justice Rahman reviewed, at paragraphs 33 to 35 of A.C. , was R. v. Zhou . [18] I adopt Justice Rahman’s summary of Zhou :
33 The offender pleaded guilty to one count of criminal harassment. The offender had taken pictures of the victim during their relationship. The offender placed nude and semi-nude pictures of the victim on a public website without her consent, and attached a comment "Rate and what would you do to her, Cum on her pics?" Seven of the photos showed the victim's breasts and four exposed her pubic area. Her face was also visible, although her name was not attached to the photos. The photos were available for two years while the offender and victim were in a relationship. The victim had the photos removed when she learned about them.
34 The sentencing judge, Ray J., noted that the comment the offender included with the photos was intended to degrade and humiliate the victim. She found that the offender breached the victim's trust by continuing to engage in a relationship with the victim while violating her sexual dignity and privacy rights. Ray J. also found that the offender had been remorseful and candid about what happened from the beginning and that he participated in counselling to gain insight into what he had done. The sentencing judge also noted that there was no evidence of secondary distribution of the images.
35 Ray J. highlighted the need for general deterrence and denunciation "given the affront to the high value society places on human dignity and privacy within the context of close intimate relationships." She observed that a short period of custody would have been appropriate but that, since the offender had served the equivalent of six days of pre-sentence custody, she would suspend the passing of sentence. The offender was placed on probation for twelve months. As in the previous two cases, the sentencing judge gave primacy to general deterrence and denunciation, particularly because of the deceit and breach of trust involved. [19]
[95] In A.C., when considering whether a conditional discharge was appropriate, Justice Rahman stated that he was not satisfied that the offender had a very deep appreciation of the harm that he had caused, which distinguished the case from Calpito . Justice Rahman also found that Calpito was distinguishable because A.C. “did not simply send a few images to a small group of people.” [20] Instead, he chose to share the images on more than one website, which increased their availability, and included the victim’s name and other identifiers, which caused more harm than occurred in Calpito . Therefore, a conditional discharge was “manifestly unfit, contrary to the public interest, and grossly disproportionate to his conduct and blameworthiness.” [21]
[96] Justice Rahman also rejected the appropriateness of a suspended sentence for the same reasons, noting that “[a] probation order is intended principally to focus on rehabilitation and the offender’s reintegration into the community”, and “is not meant to fulfil the goals of general deterrence and denunciation.” [22] In finding that a suspended sentence would not adequately address these principles, Justice Rahman noted that A.C. was not a case like P.S.D. where the court described the conduct as a “rash act” or a case like Zhou , where the offender demonstrated his understanding of the impact of his crime and was deeply remorseful. [23]
[97] In A.C., Justice Rahman stated the following:
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. [24]
[98] Justice Rahman then went on to explain why he found that a conditional sentence of imprisonment would not be proportionate to the gravity of the offence nor adequately fulfill the principles of denunciation and deterrence. He cited the seriousness of the offence, the deliberate violation of the victim’s privacy in “a most obscene and far-reaching way”, and the significant and long-lasting impact on the victim. [25]
[99] Justice Rahman referred to R. v. Proulx , wherein the Supreme Court of Canada said the following:
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... [26]
[100] Justice Rahman found A.C.’s case to be the type of case where the aggravating factors made the punitive objectives of denunciation and deterrence pressing enough to require a custodial sentence. [27] He stated that, had the Crown proceeded by indictment in A.C.’s case, as the Crown has in Mr. Mikhail’s case, he would have considered a sentence in the range of nine to twelve months to have been appropriate after trial. Since the Crown proceeded by summary conviction, he sentenced A.C. to 5 months jail to give him some credit for the guilty plea. Without the guilty plea, Justice Rahman would have imposed six months jail, the maximum sentence at the time for summary conviction proceedings.
[101] In commenting on the egregiousness of the conduct, Justice Rahman said the following:
Short of having uploaded stolen images from a hacked server, or uploading the images of several victims at once, it is difficult to imagine a more serious way of committing this offence or a more significant violation of privacy. [28]
[102] Crown counsel provided me with the case of Ha . In Ha , Justice Caponecchia observed that, “[c]urrently there is no binding case law of sentencing ranges for the offence of distributing intimate images.” [29]
[103] The Ha case involved an offender who entered guilty pleas to one count of assault and one count of distributing intimate images. The assault count pertained to three separate incidents of domestic violence in a dysfunctional relationship between 2016 and 2017. After the breakup of the relationship, Ha posted 10 videos on an adult pornography website, which depicted the couple having sex.
[104] Justice Caponecchia listed the mitigating factors which included the guilty pleas, the absence of a criminal record, the offender’s remorse, and initiative to do counselling. [30] There were many aggravating factors, including: i) the use of violence against an intimate partner; ii) the breach of trust involved in both the domestic violence and the distribution of intimate videos of them having sex after they broke up; iii) the number of sex videos the offender made available online; iv) the highly sensitive content of the videos, depicting the victim engaging in the act of intercourse with the offender; v) the posting of the videos on an adult pornography website, where the offender could expect many people to see them; vi) the offender tagged the videos with the victim’s name, thereby making it possible for anyone who searched her name on the internet to discover them; vii) the videos were in the public domain for a significant period of time, between the end of 2017 and April 2020; viii) the offender’s actions resulted in the videos being re-distributed in 2018 and 2019 and on two different pornography websites; ix) the victim’s friend became aware of the video and notified her; x) the victim used her time and energy to contact Google to remove the videos; xi) the significant emotional impact on the victim including ongoing insecurity about her online presence in light of her career aspirations, and the physical marks that remained from the assault; xii) the offender’s motive for posting the intimate videos-revenge. [31]
[105] At paragraphs 39 through 48 of Ha , Justice Caponecchia summarized case law relating to the distribution of intimate images, setting out the aggravating and mitigating circumstances of each case and the sentences imposed. Sentences in the cases Justice Caponecchia reviewed encompassed a broad spectrum, including a conditional discharge, suspended sentence, a 4-month conditional sentence, and jail sentences of between 3 months and 2 years less a day.
[106] Ultimately, Justice Caponecchia found that, although a conditional sentence was available for the distribute intimate image offence, and that, allowing Mr. Ha to serve his sentence in the community would not endanger the public, jail was required to “meet the principles of general deterrence, denunciation, and to hold [the offender] accountable for the harm he caused.” [32] She sentenced Mr. Ha to 5 months jail for the offence of distributing intimate images, followed by 18 months of probation, and having regard to the principle of totality imposed a concurrent 18 months of probation on the assault count.
[107] Although I will not summarize the remaining cases filed by Mr. Mikhail’s counsel, I have reviewed and considered them: R. v. Agoston , [33] R. v. J.B. , [34] R. v. Haines-Matthew , [35] R. v. Carrillo Villagran , [36] R. v. Robidas , [37] R. v. O.K. , [38] R. v. Scarfe , [39] R. v. Gallegos , [40] R. v. Hunter , [41] and R. v. Lionel . [42]
[108] The authorities filed by both counsel assist with the task of fashioning a proportionate sentence in this case. However, I agree with the observation of Justice Leach in J.B. :
48 The reality, of course, is that no two cases are exactly alike, and as emphasized by Chief Justice Lamer in R. v. M. (C.A.), 1996 SCC 230, [1996] 1 S.C.R. 500, at paragraph 92 :
Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction…. [43]
[109] At paragraphs 50 to 52 of J.B. , Justice Leach provides a helpful review of authorities dealing with the s. 162.1 offence and predecessor offences under which the distribution of intimate images was prosecuted, including criminal harassment. Again, what emerges from the authorities is the primacy of denunciation and deterrence when sentencing for offences involving the distribution of intimate images, although the other principles of sentencing, including rehabilitation of the offender, must never be ignored and must factor into the balancing required to arrive at a proportionate sentence.
Aggravating and Mitigating Factors
[110] Section 718.2 (a) of the Criminal Code states that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.
[111] The following are mitigating factors in Mr. Mikhail’s case:
(1) He entered guilty pleas to the offences which is indicative of remorse and acceptance of responsibility. By entering guilty pleas, he has spared the victims, and any other witnesses, from having to testify at a trial. The guilty pleas have also spared the valuable judicial resources that would have been required for a trial, which could have been significant considering the number of victims involved.
(2) Mr. Mikhail is 30 years old and has no prior criminal record.
(3) He has the support of his family, his fiancé, and his friends, who are all aware of the details of the offences he committed, which bodes well for his prospects of rehabilitation. His stable relationship with his fiancé and the fact that he is part of a close-knit family increases his prospects of rehabilitation.
(4) Mr. Mikhail has taken steps to address his mental health and to investigate and address issues which contributed to his offending behaviour. These efforts, which I detailed earlier in my judgment, and which include his participation in the psychological assessment with Dr. Bradley, have allowed him to gain insight into the seriousness of his offences and the impact of his actions on the victims. He has expressed sincere remorse and regret for his behaviour to his family, fiancé, friends, the author of the PSR, and Dr. Bradley. Despite minimization tendencies which Dr. Bradley noted in her report, Mr. Mikhail has expressed a willingness to engage in treatment and to pursue further supports related to sexual behaviour, another positive indicator of his prospects of rehabilitation.
(5) Although Mr. Mikhail is not currently employed, and remains focused on caring for his parents, he has had gainful employment in the past which demonstrates that he can lead a pro-social lifestyle.
[112] I find the following to be aggravating factors in Mr. Mikhail’s case:
(1) Mr. Mikhail’s offences involved multiple victims over a prolonged period. As early as 2016, Mr. Mikhail took nude pictures of L.G. without her consent. He created the non-consensual video recordings of the women at the gym throughout 2019 and 2020.
(2) I find as a fact that Mr. Mikhail fully appreciated that his conduct was morally wrong and that the subjects of his surreptitious recordings were victims of his perverse sexual behaviour. Defence counsel submitted that Mr. Mikhail had no insight that what he was doing was hurting people emotionally or psychologically. With respect, the evidence and admitted facts do not support Defence counsel’s submission. First, in her report, Dr. Bradley did not identify any cognitive deficits, and there is no evidence that he had any such deficits. Furthermore, in November of 2019, when A.B. caught Mr. Mikhail videotaping her, he immediately fled the facility, and the caption he included on the video when he posted it said, “I get caught at the end”. His flight from the gym when A.B. caught him provides ample evidence that he knew his conduct was wrong and that his unwanted recording of A.B. was causing her distress. Yet he posted the video on a pornographic website where it could be viewed by many people. He most certainly would have known that this would cause A.B. further distress. When he discussed the offences with Dr. Bradley, he suggested that he uploaded images to the porn site to avoid his fiancé finding the material, which provides further evidence that he appreciated the wrongfulness of his conduct. For the same reasons, and with respect, I put no weight on Dr. Bradley’s stated belief that there is validity to Mr. Mikhail’s claim that he did not know that surreptitious videotaping of females’ buttocks or breasts, and posting them on a pornography website, was illegal. [44]
(3) Mr. Mikhail’s offences were premeditated and involved planning. His offending behaviour was the antithesis of a “rash act” or “momentary error in judgment.” [45] He created his own account on a pornographic website, which he would have known was accessible to many people. He included captions on the videos and images which demonstrated that he was catering to an audience, inviting others to view the images and videos he had created and distributed without consent. Defence counsel submitted that Mr. Mikhail did not set out to deliberately hurt the victims. Again, with respect, Mr. Mikhail’s conduct demonstrated a complete disregard for the impact his actions would have on the women he secretly recorded.
(4) Mr. Mikhail dated L.G. for approximately three months in 2016. In this relationship of short duration, he took nude photographs of her without her knowledge or consent, while they were engaged in intimate sexual acts in his bedroom. He posted these photographs to his Pornhub account, which constitutes an egregious betrayal of L.G.’s trust. Although Mr. Mikhail’s conduct vis-à-vis L.G. cannot be characterized as “revenge porn”, and I have not been provided with a Victim Impact Statement from L.G., the detrimental impact upon her can be inferred. L.G. was readily identifiable in the photos that Mr. Mikhail took during what L.G. believed were private sexual encounters. A friend of L.G. was able to identify her in the photos posted to Pornhub and alert her to their existence.
(5) Mr. Mikhail entered guilty pleas to voyeurism offences relating to three of the women from the gym and admitted the facts relating to the other five women. The women that Mr. Mikhail video recorded at GoodLife Fitness were not naked, nor were they engaged in sexual acts. Mr. Mikhail was not found guilty of distribution of intimate images in relation to any of the women from the gym, nor did he admit facts that would establish the s. 162.1(1) offence in relation to any of these victims. Nonetheless, the aggravating features surrounding the commission of these offences, bear similarities to the offence of distributing intimate images without consent. Mr. Mikhail did not merely create video recordings of the women at GoodLife Fitness for his own personal use or sexual gratification. He disseminated the videos, which focused on the breasts and buttocks of the women on Pornhub, with sexually suggestive captions. This made the women available to Mr. Mikhail’s audience for their sexual gratification on the account that he had created on this pornographic website. All the women from GoodLife could be easily identified in the videos because their faces were visible. Indeed, most of them became aware of the existence of the postings on Pornhub because others who knew them alerted them to the existence of the videos.
(6) These offences have had a significant impact on the victims from GoodLife Fitness, as outlined in the Victim Impact Statements filed. For instance, A.B. expressed the degradation, humiliation, and damaging effect of having the videos circulating publicly, as well as the potential professional repercussions. J.D., who was 17 years old at the time, lost her sense of security, changed gyms, and became hypersensitive. S.K. described her fear and loss of trust in other men in public spaces, and how she stopped going to the gym for several months. The sentiments expressed by these victims in their Victim Impact Statements are consistent with the profound psychological harm and impacts discussed in the case law relating to the s. 162.1(1) offence of distributing intimate images.
(7) Pursuant to s. 718.2 (a)(ii.1) of the Criminal Code, evidence that an offender, in committing an offence, abused a person under the age of eighteen years, is an aggravating circumstance to be considered in imposing sentence. J.D. was 17 years old when Mr. Mikhail video recorded her, focusing on her breasts. He posted her video on Pornhub with a sexually suggestive caption that suggested that he was aware of her young age.
The Sentence
[113] Having weighed the mitigating and aggravating factors in this case, I find that a conditional discharge cannot adequately address the principles of general deterrence and denunciation. While a conditional discharge is of course in the best interests of Mr. Mikhail, it would be contrary to the public interest and in the words of Justice Rahman in A.C. , “grossly disproportionate to his conduct and blameworthiness.” [46] Nor is a suspended sentence sufficient to address the primary role of general deterrence and denunciation in the sentencing for these offences.
[114] I have considered ss. 718.2 (d) and (e) of the Criminal Code, and whether a conditional sentence of imprisonment is appropriate. Mr. Mikhail is a first offender. Dr. Bradley has assessed him to be a low risk to re-offend, and there is no identifiable risk that the community would be endangered by Mr. Mikhail serving his sentence in the community.
[115] However, a conditional sentence must also be consistent with the fundamental principles of sentencing set out in the Criminal Code. Again, I adopt the words of Justice Rahman in A.C., which I find to be applicable to Mr. Mikhail’s case:
Considering these significant aggravating factors, 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. This is the type of case referred to in Proulx where the aggravating factors make the punitive objectives of denunciation and deterrence pressing enough to require a custodial sentence. [47]
[116] In Mr. Mikhail’s case, “the need for denunciation and deterrence is such that incarceration is the only suitable way to express society’s condemnation for the offender’s conduct.” [48] Only a sentence of imprisonment in Mr. Mikhail’s case can “properly give effect to the fundamental principles of sentencing.” [49]
[117] In determining the length of the custodial sentence, I have of course considered the case law that counsel provided but reiterate that there is no binding range of sentence for the s. 162.1 offence. Furthermore, the cases to which I was referred do not provide much assistance in determining the appropriate length of the custodial sentence when offences of this nature are committed in respect of multiple victims over a prolonged period.
[118] The offences Mr. Mikhail committed are sexual offences. Section 162.1 has now been in force for over eight years. Prior to that, the distribution of intimate images was prosecuted under offences such as criminal harassment and voyeurism. The distribution of intimate images and the use of technological devices to cause psychological harm to others, especially women and young persons, is not a new phenomenon. The harassment, intimidation, humiliation, and degradation of others by means of distribution of material that contains explicit sexual content is a prevalent social harm that causes long-lasting psychological harm to victims.
[119] Mr. Mikhail’s case demonstrates how a cell phone with the capacity to photograph and video record others without their knowledge can become a weapon which causes devastating harm. The extent of the harm is immeasurable due to the permanence of the internet.
[120] In J.B. , when referring to the s. 162.1 offence, Justice Leach stated the following:
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. [50]
[121] These crimes also affect the victims’ relationships with those closest to them, including loved ones, friends, and employers.
[122] Mr. Mikhail’s moral blameworthiness is high. He violated the sexual integrity of multiple women by using his cell phone as a weapon. In relation to his intimate partner, L.G., he violated her trust both by taking nude photographs of her while they were engaged in private sexual encounters, without her knowledge or consent, and by later distributing the photographs on a pornographic website. For L.G., a dating relationship of short duration has produced potentially life-long devastating consequences due to Mr. Mikhail’s disregard for her sexual integrity. Mr. Mikhail’s conduct in relation to the victims from GoodLife Fitness has resulted in comparable trauma and consequences.
[123] Offenders who use their cell phones and digital devices as weapons to violate the sexual integrity of others should expect to receive a custodial sentence. I have considered the principle of restraint, the fact that Mr. Mikhail comes before me as a first offender, having entered guilty pleas, and the fact that he has a stable background and favourable prospects of rehabilitation.
[124] Nonetheless, in all the circumstances, I find that a fit and appropriate sentence for the s. 162.1 distribution of intimate image offence relating to L.G. is 10 months jail. In relation to the s. 162(5) offence relating to J.D., I impose a consecutive 5 month jail sentence. Having regard to the principle of totality, I impose 5 months jail in relation to each of the s. 162(5) offences relating to A.B. and C.H. to run concurrently. Therefore, the global sentence to be served is 15 months jail.
[125] The jail sentence will be followed by a period of probation of two years. In addition to the statutory conditions of probation, Mr. Mikhail will have the following conditions of probation:
(1) Report in person or by telephone to a probation officer within two working days of your release from custody and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision;
(2) Do not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means with: L.G., A.B., J.D., C.H., S.C., C.M., J.F., T.C., and S.K., except as may be permitted by the probation officer on one occasion in the form of a written letter of apology. Any letters of apology are to be provided to the probation officer for distribution to the victims;
(3) Do not attend at, or be on the premises of any GoodLife Fitness;
(4) Do not access the website Pornhub (www.pornhub.com);
(5) Within two days of your release from custody, destroy any intimate images or surreptitious video recordings of L.G., A.B., J.D., C.H., S.C., C.M., J.F., T.C., and S.K.;
(6) Refrain from posting any photos or videos of L.G., A.B., J.D., C.H., S.C., C.M., J.F., T.C., and S.K. on any internet based platform;
(7) Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer, including but not limited to sexual offending behaviour. 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. You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
[126] As the Crown proceeded by indictment, the offences are secondary designated DNA offences. Having regard to the circumstances surrounding the commission of these serious offences, against multiple victims, the best interests of the administration of justice favour making the DNA order. Pursuant to s. 487.051 of the Criminal Code, I order Mr. Mikhail to provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act.
[127] Finally, there will be an order pursuant to s. 743.21 of the Criminal Code prohibiting Mr. Mikhail from having any contact, directly or indirectly with L.G., A.B., J.D., C.H., S.C., C.M., J.F., T.C., and S.K. while he serves his sentence of incarceration.
Released: October 4, 2023 Signed: Justice J.P.P. Fiorucci
Footnotes:
[1] R. v. Garcia and Silva, 1969 ONCA 450, [1970] 3 C.C.C. 124 (Ont. C.A.).
[2] Mr. Mikhail did not object to the introduction of S.K.’s Victim Impact Statement in the form mandated by s. 722 of the Criminal Code. Section 725(1) (b.1) of the Criminal Code provides a procedure similar to that considered in R. v. Garcia and Silva. Since Mr. Mikhail agreed that the facts relating to S.K. could be considered pursuant to Garcia and Silva, I received and considered S.K.’s Victim Impact Statement on consent.
[3] R. v. Bai, 2014 ONSC 3063, at para. 45.
[4] R. v. Aleksev, 2016 ONSC 6080, at para. 25.
[5] R. v. Green, 2006 ONCJ 364, at para. 13.
[6] R. v. Johnson, 2012 ONCA 339, at para. 18.
[7] R. v. Dewan, 2014 ONCA 755.
[8] R. v. A.C., 2017 ONCJ 317.
[10] R. v. A.C., supra, at para. 27.
[11] Ibid, at para. 20.
[12] Ibid, at para. 43.
[13] R. v. Calpito, 2017 ONCJ 129.
[14] R. v. P.S.D, 2016 BCPC 400.
[15] Ibid, at para. 22.
[16] Ibid, at para. 23.
[17] R. v. A.C., supra, at footnote 11.
[18] R. v. Zhou, 2016 ONCJ 547.
[19] R. v. A.C., supra, at paras. 33-35.
[20] Ibid, at para. 49.
[21] Ibid, at para. 51.
[22] Ibid, at para. 53.
[23] Ibid, at para. 54.
[24] Ibid, at para. 56.
[25] Ibid, at para. 62.
[26] R. v. Proulx, 2000 SCC 5, at para. 114.
[27] R. v. A.C., supra, at para. 66.
[28] Ibid, at para. 69.
[29] R. v. Ha, supra, at para. 38.
[30] Ibid, at para. 25.
[31] Ibid, at para. 26.
[32] Ibid, at para. 54.
[33] R. v. Agoston, 2017 ONSC 3425.
[34] R. v. J.B., 2018 ONSC 4726.
[35] R. v. Haines-Matthew, 2018 ABPC 264.
[36] R. v. Carrillo Villagran, 2019 QCCQ 1732.
[37] R. v. Robidas, 2020 QCCQ 942.
[38] R. v. O.K., 2020 ONCJ 189.
[39] R. v. Scarfe, 2021 NSSC 183.
[40] R. v. Gallegos, 2022 QCCQ 382.
[41] R. v. Hunter, 2022 ONCJ 1701.
[42] R. v. Lionel, 2022 QCCQ 6450.
[43] R. v. M. (C.A.), 1996 SCC 230, [1996] 1 S.C.R. 500, at paragraph 92.
[44] Mr. Mikhail’s text to S.C. wherein he denied being responsible for the videos and claimed that he was being targeted as a scumbag on social media also demonstrates that Mr. Mikhail appreciated the wrongfulness of his conduct.
[45] R. v. Ha, supra, at para. 33.
[46] R. v. A.C., supra, at para. 51.
[47] Ibid, at para. 66.
[48] R. v. Ha, supra, at para. 58, citing R. v. Macintyre-Syrette, 2018 ONCA 706, at paragraph 19.
[49] Ibid, at para. 62.
