WARNING

The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 File and Parties

Court File No.: City of Kingston 0911998110314

Date: 2012-10-30

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Justin Michael Walls

Before: Justice Judith C. Beaman

Heard on: March 26, 2012; October 30, 2012

Reasons for Sentence released on: October 30, 2012

Counsel:

Laurie Lacelle for the Crown

Lana Walker for the accused Justin Michael Walls

Reasons for Sentence

Beaman, J.:

[1] Guilty Plea and Charge

[1] Justin Walls has pled guilty to one count of extortion of K.L. (hereinafter referred to as "KL"), in that he:

did, by threats, without reasonable justification or excuse and with intent to obtain an act of sexual intercourse attempt to induce K.L. to engage in an act of sexual intercourse with Justin Walls, contrary to section 346(1.1) of the Criminal Code of Canada.

I adjourned the matter until today to consider the submissions of counsel. The following are my reasons for sentence.

Facts of the Offence

[2] Mr. Walls met KL online in a video chat service called "Camfrog", when they were aged approximately 18 and 15 years old respectively. She lived in Kingston and he in Georgetown Ontario, a considerable distance apart. Their online relationship progressed from flirting to more intimate private exchanges between them. These included, at his request, the sharing of webcam images and by KL of her posing naked and masturbating herself for the benefit of Mr. Walls. The couple met on at least one occasion in the City of Kingston, where they had consensual sexual intercourse. The accused broke up with the complainant several weeks after they met in person. Following the breakup, they remained in touch, but no further video chat took place.

[3] Following a lapse of approximately two years, Mr. Walls made contact with KL via Windows Live Messenger. On the evening in question, the chat logs reveal that the defendant asked the complainant on several occasions to engage in sexual intercourse with him again. The complainant told him repeatedly that she did not wish to have sex with him. He asked her to travel to Georgetown. He led her to believe that he had kept copies of her naked images in the form of videos and was actively viewing them during this online exchange. He stated that he would dispose of them in order that no one else would see them, if she would have sex with him. When she continued to refuse, he wrote that he would keep the videos he had of her and make them available for others to view. Under duress, the complainant eventually agreed, in principle, to his demand for sex, in order to prevent the distribution of these images of her. The conversation ended.

[4] The following day, the online connection was re-established. KL began with angry comments directed at the defendant. She called him a hypocrite for making videos of her without her permission. He reiterated the statement that if she agreed to have sex with him, she could watch him delete the offending images, thereby preventing him from spreading them around.

[5] He then asked the question: "Do you want to get fucked roughly or softly?" He implied that he would impose anal and other forms of coercive sex on her against her will, depending upon how nicely she behaved towards him. Following further graphic details, he stated the following:

[6] "Ok lets make this simple...the more u disagree the more it will be rough and un enjoyable...its gonna happen...you my (sic) as well enjoy it as much as u can"

[7] To this, KL replied, "Enjoy something I'm not interested in"

[8] Mr. Walls then stated: "You better get interested fast until its over with before i decide to make it much more difficult for u"

[9] Further exchanges occurred in which he demanded that she perform oral intercourse on him in exchange for his destroying the images of her, failing which, he would disseminate them.

[10] KL contacted the police and the defendant was ultimately charged with this and other offences. The counts of possession of child pornography and attempted sexual assault were ultimately withdrawn.

Positions of the Parties

[11] The Crown is seeking 9 to 12 months in custody, together with 2 to 3 years of probation, a weapons prohibition, DNA and forfeiture orders. Defence counsel submits that her client would be a suitable candidate for a conditional sentence order of 12 to 18 months' duration. Failing that disposition, she argued that the court should impose a 90 day intermittent jail sentence, together with probation.

Availability of a Conditional Sentence

[12] The Crown has argued that the court is precluded from imposing a conditional sentence upon Mr. Walls by virtue of the wording of sections 742.1 and 752 of the Criminal Code. The applicable parts of these sections read as follows:

742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliance with the conditions imposed under section 742.3.

752. "serious personal injury offence" means

(a) An indictable offence, other than high treason, treason, first degree murder or second degree murder, involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person,

And for which the offender may be sentenced to imprisonment for ten years or more

[13] Thus, the Criminal Code provides that a conditional sentence is not available to someone who has committed a "serious personal injury offence" as defined therein. Therefore, the starting point for this analysis is a finding as to whether extortion constitutes a serious personal injury offence.

[14] The applicable section of the Code providing for this offence is found at section 346. It reads:

(1) Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done.

(1.1) Every person who commits extortion is guilty of an indictable offence and liable

(b) in any other case, to imprisonment for life.

[15] By definition, the actus reus of the offence of extortion involves the offender engaging in one or more of threats, accusations, menaces or violence toward another person to obtain a desired result. In the case before me, Mr. Wall pled guilty to having threatened the complainant in an attempt to have her engage in an act of sexual intercourse with him. The Crown has argued that these threats constitute "the use or attempted use of violence" against KL.

[16] The Crown's starting point for analysis is the decision of the Supreme Court of Canada in R. v. McCraw, [1991] 3 S.C.R. 72. Mr. McCraw was an obsessed fan of the Ottawa Roughriders Cheerleaders Squad. He sent anonymous letters to three of them, in which he threatened to rape them in very graphic terms. The complainants were extremely frightened to have received this correspondence from him. In speaking for the Court, Justice Cory concluded that the threat of rape may, depending on the circumstances in which the words were uttered, including the reaction of the complainant, constitute a threat to cause serious bodily harm. That case invited the trial courts to engage in a contextual analysis of the case to determine if the words uttered amounted to a threat.

[17] The Crown also cites the decision of Justice Forsyth of the Ontario Court of Justice in the case of R. v. McLeod, 2010 ONCJ 354, [2010] O.J. 3596, in which His Honour sentenced an offender for two robberies of the same gas station attendant. Mr. McLeod had attended at the gas kiosk on two consecutive days and handed the attendant a note stating he had a gun and demanded money. Justice Forsyth held that the reference to a gun contained in the notes amounted to an implied threat of violence. In arriving at his conclusion that the threat of violence by the offender contained in these notes constituted the attempted use of violence, Justice Forsyth relied primarily upon the decision of the Ontario Court of Appeal in the R. v. Lebar case, at 2010 ONCA 220, 252 C.C.C. (3d) 411.

[18] The case of R. v. Griffin, 2011 NSCA 103 contains similar facts. Ms. Griffin approached a cashier at a store, with her face covered, tapped her knife on the counter and demanded cash. The Nova Scotia Court of Appeal held that the mere use of a knife in the context of a robbery in order to induce or extort the victim into complying with the demand constitutes a threat of violence. The court in Griffin concluded at para. 30:

In the result, I agree with the Crown's submission that the display of the knife in the circumstance of this case – the wearing of disguise; the demand for money – all constitute a threat of violence. Moreover, I agree that the threat of violence in the circumstances of this case, was an act of violence. In similar circumstances, the Ontario Court of Appeal observed in Lebar,

37....I find it difficult to accept that the offence committed by [the respondent] did not involve violence as submitted by the Defence. The very nature of using a knife to induce a desired result, whether implied or real, is an act of violence.

[19] The Lebar case involved the robbery of an LCBO clerk of a sum of cash which the offender facilitated by placing a five inch knife to her throat. She was not injured during this event, and the offender was quickly apprehended. The trial judge found that the act of using a knife as a threat to obtain the cash, whether implied or real was, in fact, an act of violence. In spite of this finding, the trial judge held that she was not precluded from imposing a conditional sentence on the offender, who was a 50 year old man, with one dated, unrelated offence on his record.

[20] Speaking for the Court of Appeal, Justice Epstein referred to the decision of the Supreme Court of Canada in R. v. C.D., 2005 SCC 78, [2005] 3 S.C.R. 668, in which that court considered the term "serious violent offences" under the Youth Criminal Justice Act. The Supreme Court ultimately concluded that the focus of the determination of whether the conduct amounted to a violent offence, should be on the bodily harm caused or attempted by an offender, rather than the force applied. Justice Epstein said at para 37:

In my view, this conclusion was driven by the context of the case. There were good reasons to define "violent offences" in terms of the harm caused or attempted rather than the force applied. First, the term "violent offence" would not capture attempts if it were force-based. Second, the term "serious violent offences" was the defined term in play in that case and certain "serious violent offences" did not require the use of force (such as murder through omission).

[21] After a review of the origins of the legislative amendments that identified "serious personal injury offence" as a disqualifier from the imposition of a conditional sentence, Justice Epstein concluded that Parliament intended a very broad and expansive definition of "violence", and a concomitant reduction in judicial discretion by eliminating this sentencing option for certain crimes of violence.

[22] She stated at para. 50:

A finding that violence was used remains a matter of factual determination for the trial judge. Whether the criminal conduct amounted to the use or attempted use of violence is a matter relating to the circumstances under which the crime was committed. This is not tantamount to an objective assessment of the seriousness of the violence; rather it is a question of determining whether the evidence proves that violence was actually used.

[23] The Court rejected the argument that it should objectively evaluate the seriousness of the conduct in determining whether it constituted a "serious personal injury offence". Instead, it held at para. 69:

In short, I conclude that for the purposes of the availability of a conditional sentence, Parliament created a divide between crimes where violence is or is not used, not between crimes of serious violence and less serious violence.

[24] I am bound to follow the decision of the court in Lebar. In this and other cases cited by counsel, the offender held, referred to or brandished a weapon when the demand for money was made. As a result, they were charged with robbery. It is not difficult to understand why the courts have concluded that the use of a weapon in this context constitutes not only a threat, but also an inherently violent act.

[25] I conclude from these decisions that, while some threats will be considered to be acts of violence or attempted violence, others will not. It is a contextual analysis, very much dependent upon the circumstances of the case.

[26] In the matter before me, Mr. Walls' desired result was to have KL engage in sexual intercourse with him. In order to induce her to comply with his demand, he threatened to disseminate embarrassing images of her. It is irrelevant that he did not, in fact, possess the images of her that he claimed to have. He deliberately fostered that impression in her, in order to secure her cooperation. He clearly counted on the fact that her desire to avoid public humiliation would overcome her reticence to have sex with him. Under these circumstances, of course, the sexual intercourse, had it taken place, would not have been consensual.

[27] I would note that, in the conversations between the offender and the complainant, there was no mention, either explicit or implicit, of any weapons. In my opinion, this fact places the case before me in a different category from those discussed above. I find that the presence of a weapon creates an immediacy that is absent in the instant case.

[28] This court is then left to consider the words used, and their impact upon the complainant. Mr. Walls did not threaten to come to Kingston, nor did he give her a deadline for compliance. In effect, he gave her a choice between two options: have sex with him or have the images dispersed. While abhorrent and clearly extortionate, the option - in the absence of the sex - to expose KL's naked images to public scrutiny to humiliate her, does not, in my view, amount to the use or attempted use of violence. The attempted compulsion that is at the heart of this particular offence does not, in my view, rise to the level of violence contemplated by the legislators.

[29] When her agreement was not forthcoming quickly enough, he told her that when they did have sex, it would be "rough and unenjoyable" for her. The Crown has argued that this amounts to an explicit threat of violence. However, I note that the chat log also reveals that in response to KL's question: "What happened to you saying you wouldn't ever hurt me", he replied "I wouldn't hurt you...I just wouldn't be gentle." He went on to describe in vulgar and lurid detail how he would use her body to satisfy himself. While the fundamental basis of this offence is the act of coercion, I find that Mr. Walls made no express or other threats to harm her. I have concluded that his remarks concerning the "rough sex" were more in the nature of adolescent fantasizing, or even self-aggrandizing braggadocio, rather than threats to inflict violence upon her. After these exchanges, neither of the parties ultimately traversed the 5 hour distance between themselves, so Mr. Walls made no physical contact with the complainant.

[30] KL provided a victim impact statement to the court. In it, she stated:

...Since the incident I have felt an unusual stress pushing down on me. Justin's requests left me feeling so degraded. I felt like a piece of dirt and worthless. I felt so violated. Enough to seek help from the authorities. Although, I was very insecure in my decision. I was scared to think what he might do if he found out what I had done. I confided in very little people. My best friend and a councillor (sic). My councillor helped me feel less scared and embarrassed about the situation and the consequences.

[31] While it is clear from her words that KL felt ashamed and embarrassed by the internet exchange with the offender, she did not indicate that she was frightened by his words online that he would inflict violence upon her. She stated that the trepidation she feels relates to his possible reaction to her having gone to the police to report him. Her counsellor has helped her to deal with this fear and the embarrassment. The language used by KL in her Victim Impact Statement leads me to conclude that the impact of the offence itself upon her was not such that she feared for her personal safety.

[32] Stress and humiliation can, of course, have a profound negative impact upon a person. Fortunately, KL has had access to a counsellor, who has assisted her to put this incident into perspective. KL indicates that she is less embarrassed and less fearful of the consequences of having reported Mr. Walls to the police. As a result of this information, I am satisfied that his conduct did not endanger the complainant's life or safety, nor did it cause severe psychological damage to her.

[33] For these reasons, I am satisfied that the circumstances of this particular offence of extortion are not such as to meet the definition of "serious personal injury offence". As a result, the conditional sentence option is not precluded from consideration by this court.

Decision

Factors to be Considered

[34] The Criminal Code requires that I take into account certain aggravating or mitigating factors that may increase or reduce the sentence.

1. Aggravating

This offence was committed within the context of an, albeit, moribund domestic relationship. The complainant was under the age of 18 years at the time. He abused her trust by pretending to make use of material that was created at a time when they were together and sharing intimacies with one another. It would seem that, during that period, he had persuaded her to provide these images for his own sexual gratification. From the synopsis, Mr. Walls ended the relationship soon after she had sex with him, only to resurrect it two years later, compelled by his physical urges. It is clear that he had no compunction about violating this young girl's sense of privacy and bodily integrity. He had been drinking heavily on both consecutive days. Of concern is his denial that he requires any counselling for substance abuse.

As mentioned earlier, these events have caused the victim to suffer a great deal of stress. She indicated in her Victim Impact Statement that Mr. Walls made her feel worthless and degraded. She continues to fear retribution.

2. Mitigating

Mr. Walls plead guilty to this offence and has spared the complainant the further embarrassment of having to testify. He is a relatively youthful offender. He is now 22 years old, having been 20 at the time of this offence. He had no criminal record at the time of this offence. He is a high school graduate, and has been working full-time for an automatic door company for 2.5 years. His father, who has worked in the same company for over 10 years, is his direct supervisor. The president of the company thinks highly of the offender's character and work performance.

Mr. Walls comes from a close-knit, pro-social family. His parents are strongly supportive of their son. They believe that this offence involved youthful misjudgement and immaturity, fuelled by alcohol, and that he would never have followed through on his threats. For the most part, his Pre-Sentence Report was positive. In his report, the probation officer indicated:

"The offender appears to display signs of remorse for his actions. He recalls having cared for the victim and described his actions as an attempt to be able to convince her to continue a relationship with him. The offender reports taking responsibility for his actions, but added that he was also extremely intoxicated and depressed at the time of the offence."

I note that the language used by the probation officer is somewhat circumspect. He speaks of words that have been vocalized by Mr. Walls, but stops short of expressing his own belief in their sincerity. The officer's comment that the offender qualified his acceptance of responsibility by his consumption of alcohol and depression, suggests that he is not entirely convinced that Mr. Walls' remorse was genuine. No evidence was submitted, in any event, to confirm his psychological state.

As part of the sentencing process, this court ordered that a Sexual Offender Assessment be conducted of Mr. Walls by Dr. Eccles, a specialist in these matters. The police reported to Dr. Eccles that there were 58 thumbnail images of child pornography found on Mr. Walls' computer, although it was unclear whether or not he had actively sought these out. A number of psychological tests were conducted of the offender. However, he declined a phallometric test, "out of respect for [his] family". According to Dr. Eccles, as a result, "... I caution that no determination can be made regarding the presence of a pedophilic disorder of sexual preferences...there is not sufficient information upon which to make such a diagnosis, although the possibility that Mr. Walls harbours a sexual interest in young females cannot be ruled out."

Dr. Eccles assessed Mr. Walls in the moderate risk category for a future sexual offence. He was determined to be in the low risk range to commit a generally violent offence. In his opinion,

"The unfavourable factors in this case include the lack of evidence that Mr. Walls is capable of establishing and maintaining a long-term healthy intimate relationship. He is also lacking in some inter-personal problem solving skills. Moreover, Mr. Walls appears to be somewhat sexually preoccupied. In addition, he has employed sex as a coping mechanism for negative emotions and has shown some evidence of sexual impulsivity."

[35] When taken together with the favourable considerations, Dr. Eccles found overall that Mr. Walls represents a low risk to reoffend. He added the following caveat:

"I caution that if Mr. Walls does harbour pedophilic sexual proclivities this risk appraisal may be an underestimate of the true risk."

[36] According to Dr. Eccles, there is nothing in this case to contraindicate community based programming. He notes that, should the court decide that an incarceral sentence is more appropriate, there would be sentence minimums that would be required for him to complete sexual offender programming within the institutions. For example, the Ontario Correctional Institute and St. Lawrence Valley Correctional and Treatment Centre require 12 – 16 months and 9 – 12 months respectively. I note that the low end of these periods is higher than the Crown is seeking for a custodial sentence.

Principles of Sentencing

[37] Section 718 of the Code outlines a number of principles for sentencing judges to consider. The jurisprudence supports the application of the principles of denunciation and deterrence for crimes of a sexual nature. Consideration should also be given to the principle of rehabilitation.

[38] This court is being asked by counsel to decide between the imposition of a sentence of real jail, as opposed to a conditional sentence, which is incarceration served in the community. There are very few sentencing decisions dealing with the single offence of extortion. The Crown has referred the court to the B.C. Court of Appeal decision in R. v. D.K.P., 5 B.C. A.C. 308, in which that court reduced a 2 year jail sentence to 15 months in custody. I note, however, that this case occurred prior to the legislation creating conditional sentences.

[39] At the end of the day, the decision of this court should send a clear message to similarly-inclined individuals and to Mr. Walls, himself that such conduct will not be tolerated. However, the sentence must also address any treatment needs the offender has or might have, in order to lessen the chance of this or any other sexual offence reoccurring.

[40] All sentences proposed by counsel involve a period of less than two years. There is no mandatory minimum for extortion. Since his arrest, Mr. Walls has cooperated throughout with the process. He has taken some steps on his own to explore possible psychiatric counselling. He has, however, been found guilty of breaching his bail conditions by having a cell phone with a camera. Although his view, as expressed to the probation officer, is that this was merely a "technical" breach, this court sees it differently. This condition was clearly relevant to the gravamen of the offence, so should not have been minimized by the offender.

[41] That said, he has honoured all of his other bail conditions. He has committed not any further substantive offences. This leads me to the conclusion that, if placed on a conditional sentence order, he would not endanger the safety of the community by committing further offences. Thus, all of the preconditions to making a conditional sentence order have been met.

[42] The Supreme Court of Canada in the R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 decision, followed by a long line of cases thereafter, has recognized that, with appropriately restrictive provisions, conditional sentences can address the sentencing objectives of deterrence and denunciation. The ultimate goal, in my view, should be to craft a sentence which has the highest likelihood of addressing the factors that have led up to the offending behaviour.

Sentencing

Mr. Walls, stand up please. Have you anything you would like to say?

[43] I am sentencing you to 15 months of incarceration, to be served in the community under the terms of a conditional sentence order. For the first 12 months, you will be placed on house arrest. You are not allowed to leave your place of residence, except for the following limited purposes:

• Reporting to your supervisor
• Genuine serious medical emergencies
• Medical/dental/lawyer appointments
• Paid employment
• Attendance at treatment or counselling
• 3 hours to run errands
• Special purposes

Balance of order to be subject to a curfew – 9:00 to 6:00 am on weekdays and 11:00 to 6:00 am on weekends

• Reside at place approved of and abide by rules of household
• Abstain from alcohol and drugs
• Attend counselling as recommended - sexual offending, substance abuse
• Sign releases
• Carry order
• No weapons
• Electronic Monitoring
• No contact or communication with K.L.
• Not to be within 500 metres of her
• No contact or communication with females under the age of 16, unless in the presence of a responsible adult
• Not to possess any pornographic imagery or pornographic material in any form or medium whatsoever
• Not to possess a computer, cell phone or other communication device capable of accessing the internet without first disclosing to the police and your supervising officer the IP address of that computer, cell phone or device, as well as any and all passwords necessary to access the data on the computer, cell phone or communication device. Further, you must install any blocking or tracking software requested by your supervising officer or by the police force in the jurisdiction in which you reside upon any such computer, cell phone or communication device, and keep such programs installed and updated in accordance with written instructions from your supervising officer or the police. Additionally, you must sign any consents necessary to permit the police to search any computer, cell phone or other communication device which you possess or access, without prior notice or judicial authorization, and present any computer, cell phone or communication device in your possession to the police upon request so that they can monitor your internet usage. For greater clarity, you are to have no privacy interest in any device capable of accessing the internet for the term of this order.

Order to be followed by 21 months of probation. All the same conditions, except house arrest, electronic monitoring, curfew and alcohol restriction will apply.

Released: October 30, 2012

Signed: Justice Judith C. Beaman