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:
Section 486.4 – Order Restricting Publication — Sexual Offences
(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
Section 486.6 – Offence
(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Date: April 23, 2019
Court File No.: Toronto Region – College Park
Information No.: 16-75005802
Parties
Between:
Her Majesty the Queen
— and —
Joel Wilson
Before: Justice M. Wong
Heard on: March 27, 2019
Reasons for Judgment released on: April 23, 2019
Counsel:
- A. Max, counsel for the Crown
- M. Murphy, counsel for the defendant Joel Wilson
Reasons for Judgment
Wong J.:
Introduction
[1] On October 30, 2018 after a trial, Joel Wilson was found guilty of Assault (2x), Forcible Confinement, and Publishing Intimate Images. The Crown elected to proceed summarily.
[2] Both the Crown and Defence agree that a custodial sentence is warranted. The Crown submits the Court should impose a sentence totalling nine months of jail (six months for the intimate images offence; and three months consecutive for the remaining charges) followed by 18 months' probation plus ancillary orders of DNA and a section 109 weapons prohibition for five years.
[3] The Defence argues for first, a conditional sentence in the range of no more than five or six months or, in the alternative a term of imprisonment not exceeding five months.
I. The Offence
[4] The Court released written reasons on October 30, 2018, which set out the basis for the convictions. Here is a summary of the findings:
[5] In 2016, Joel Wilson and N.A. ("N." to her friends) were in an intimate, but casual relationship. On November 22, 2016, the couple were arguing inside Mr. Wilson's apartment. Mr. Wilson told Ms. A that another "girl" wanted to speak to her knowing that it would make the complainant jealous. Ms. A took the bait and began searching her cell phone for incoming messages. Mr. Wilson told her to stop, but Ms. A wouldn't so he slapped her hard across the face with an open hand. Ms. A said she felt faint, Mr. Wilson tried to soothe her, and eventually Ms. A fell asleep.
[6] The next morning the same woman direct messaged Ms. A and she also forwarded a sex video of Ms. A performing fellatio on Mr. Wilson.
[7] Over the course of the next several hours, Mr. Wilson and Ms. A continued to argue. The Court found as fact the following:
(1) Ms. A made up an excuse and Mr. Wilson allowed her to leave his apartment. She made her way to the building next door and hid in the bathroom, so she could talk to the woman, who had sent her the sex video;
(2) Mr. Wilson followed Ms. A into the bathroom and he grabbed her phone. They scuffled over the phone, but eventually Mr. Wilson ran back to his apartment with Ms. A's phone, knowing that she would follow him;
(3) Once back in his apartment, Mr. Wilson refused to give Ms. A back her phone and her purse so she could leave;
(4) Mr. Wilson bear hugged Ms. A and threw her on the bed, grabbing the back of her neck leaving bruises and he pushed her on the bed. He slapped her, kicked the back of her legs and kicked her off the bed;
(5) Eventually Mr. Wilson returned her property, and Ms. A left his apartment. Almost immediately, Mr. Wilson began sending sentimental and manipulative text messages;
(6) During their text message exchanges, Ms. A demanded that Mr. Wilson forward to her the sex video and she insisted that he delete it from his own device. Mr. Wilson again disingenuously claimed he did not know how to forward her the video;
(7) On December 10, 2016, Ms. A appeared unannounced at Mr. Wilson's apartment to pick up his then-girlfriend, who turned out was the source for the original messages and who had forwarded to Ms. A the sex video. Mr. Wilson was livid;
(8) Later that morning, Ms. A was horrified to find that Mr. Wilson had created a fake Instagram account under the name "[…].xoo.xo" and had posted three sex videos (including the one Ms. A had demanded Mr. Wilson delete from his phone) plus eight other screenshots, all of a sexual nature. As well, he had added captions including calling Ms. A sex trade worker;
(9) Mr. Wilson had also tagged Ms. A's real account so her family and friends, who followed her were also seeing the videos, images and demeaning references to her. As well, complete strangers were messaging her.
(10) Ms. A tried unsuccessfully to contact Mr. Wilson to demand that he remove the site. Only then did Ms. A report the incident to the police.
(11) On December 12, 2016, Mr. Wilson was arrested.
II. The Offender
[8] The Court has learned the following about Mr. Wilson based on his testimony at the trial, the pre-sentence report and his lawyer's submissions.
[9] Joel Wilson is 26 years old. He was born in London, England and he immigrated to Canada in 2006. He is a permanent resident and is applying for Canadian citizenship.
[10] He has no criminal record and he has been on bail since December 16, 2016. There are no allegations of any breaches nor any new criminal charges.
[11] Mr. Wilson has no family members living in Canada. He keeps in touch periodically with his mother who lives in London and his father who lives in Jamaica. He is the youngest of three siblings with whom he does not keep in regular contact. No one in his family knows about these charges.
[12] Since 2006, Mr. Wilson advises that he completed high school and he had been enrolled in a university studying graphics communication management, but left because of financial constraints. He says he would like to return to school to study either nursing or real estate.
[13] Currently, Mr. Wilson has an online clothing company called Endless Pounds and for the last four years he has been designing his own clothes. Prior to this, Mr. Wilson reports that he worked in demolition and food services.
[14] The probation officer contacted several of Mr. Wilson's friends, who all reported that he is "caring", "genuine", "calm", "easy-going", loyal, hard-working, and a good role model. None of his friends know Mr. Wilson to be "aggressive" or "violent". They are all steadfast in their belief that Mr. Wilson is innocent of these charges.
III. The Law
[15] It is settled law that proportionality is the cardinal principle of sentencing. Proportionality means the sentencing court must consider the moral blameworthiness of the accused and the serious consequences of his crimes. (See R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 (S.C.C.).)
[16] The fundamental purposes of sentencing are set out in section 718 of the Criminal Code namely to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.
[17] Other sections of the Code, emphasize the principles of restraint and are set out in section 718.2 (d) and (e):
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 should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
[18] Mr. Wilson is not indigenous.
[19] Mr. Wilson is also not a Canadian citizen. The law is settled that collateral immigration consequences are a relevant factor in sentencing (See R. v. Pham, 2013 SCC 60 and R. v. McKenzie, 2017 ONCA 128)
[20] Mr. Wilson is also a first offender. The Courts have held that ordinarily when sentencing a youthful first offender, the focus should be on specific deterrence and rehabilitation. These objectives normally counsel against imposing a custodial sentence. That principle, however, has its limits. It does not apply in cases involving very serious offences and offences involving violence. In other words, a sentencing judge should only impose a custodial sentence where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate (see R. v. Stein, [1974] O.J. No. 93, 15 C.C.C. (2d) 376 (Ont.C.A.); R. v. Priest, [1996] O.J. No. 3369 30 O.R. (3d) 538 (Ont.C.A.); R. v. Huh, 2015 ONCA 356)
[21] There is also agreement that domestic violence is a grave social problem in Canadian society, which cannot be overstated (See R. v. Lavallee, 55, C.C.C. (3d) 97 (S.C.C.))
[22] Similarly, there is agreement that publishing intimate images otherwise commonly referred to as cyberbullying or revenge porn is becoming a growing and deeply disturbing phenomenon. Section 162.1 of the Criminal Code, which makes it an offence to knowingly publish, distribute, transmit, sell, make available or advertise an intimate image of a person without their consent. Section 162.1 is a hybrid offence and where the Crown elects to proceed summarily (as in Mr. Wilson's case), the maximum sentence is a custodial sentence of six months. The Crown also cites R. v. Solowan, 2008 SCC 62, for the proposition that the "worst case, worst offender" no longer operates as a constraint on the imposition of a maximum sentence where a maximum sentence is otherwise appropriate, bearing in mind the principles set out in Part XXIII on summary conviction.
[23] Returning to s. 162.1 of the Code, in R. v. Ly, Justice Shandler at para. 33 quoted the Federal Ombudsman for Victims of Crime, who stated:
We know that any kind of bullying, including cyberbullying, can have serious and lasting impacts on victims. What is unique about cyberbullying is the staggering speed and reach of the abuse. In mere minutes, intimate or personal images can be shared across networks and the world, forever exposing their victims.
We also know that trying to contain an image that has "gone viral", as they say, is no small feat, if not in some cases impossible. Even in situations in which victims work with professionals to remove the image, one can never be sure that someone somewhere doesn't have and won't recirculate these images. The feeling of forever being vulnerable and exposed and the long-term impact of the associated emotional burden that comes with it are something that we don't truly understand yet.
[24] Both lawyers have provided case law, which assists the Court in determining the appropriate range of sentence for the offence of publishing intimate images. I have read the cases, but I am not going to cite them. They all reflect some general themes:
(1) it is a serious offence to publish intimate images because it betrays the fundamental trust between the victim, who may have originally consented to the taking of the image because she trusted the person and she never imagined the day when her body would be displayed for others to see, copied, downloaded and shared over the internet;
(2) A plea of guilt is a significant and meaningful mitigating factor, which can reduce a sentence because the plea has spared the victim the added insult of having to testify in court and having yet even more people see the images. A guilty plea also typically comes with the offender showing significant remorse and regret, and sometimes even an apology to the victim;
(3) A conditional sentence can be a just and fit sentence;
(4) Also, a short sharp sentence in the 90-day intermittent range may also be appropriate;
(5) But in some cases, a jail sentence in the range of six to upwards of twelve to eighteen months can be a fit and just sentence where the Crown elected to proceed by indictment and where there are significant aggravating factors.
IV. Aggravating Factors
[25] I find the following to be aggravating factors, which increases the level of Mr. Wilson's moral blameworthiness:
(1) The offences of assault (2x) and forcible confinement were not isolated nor momentary. Mr. Wilson twice applied considerable force to Ms. A, which left marks and bruises particularly to her neck. He used the victim's purse and cell phone to lure Ms. A back to his apartment and then leveraged her property to control her. All the while, the Court found Ms. A repeatedly demanded that Mr. Wilson return her property so she could leave;
(2) The offence of publishing intimate images was calculated and was motivated by revenge because Ms. A had literally taken away his then-girlfriend;
(3) It took some time for Mr. Wilson to create and then curate the fake Instagram account. To a viewer, there was no mistaking this Instagram account was about Ms. A. Two photos of Ms. A appeared on the account, one located directly beside the account name of "[…].xoo.xo". Ms. A was known to her friends as "N.". Mr. Wilson then selected the videos to upload: two extremely explicit videos of Ms. A performing sexual acts and the third of her "twerking" in her underwear. He went further: Mr. Wilson copied or created an advertisement implying that Ms. A was a sex trade worker and listed her likes and dislikes in customers. In another, Mr. Wilson referred to Ms. A as a "hoe" with an image comparing her to a dog.
(4) His intention was to humiliate, and shame Ms. A and he deliberately tagged her real account knowing that her followers, which included her friends and family, would see the account plus expose her to complete strangers;
(5) Mr. Wilson posted the same sex video, which weeks earlier Ms. A begged and demanded that he forward to her and then delete it from his own devices;
(6) The emotional impact on Ms. A has been severe. She was devastated when she found out what Mr. Wilson had done. She immediately contacted Mr. Wilson demanding that he remove the account, which he ignored. The long-term effect on Ms. A was outlined in her Victim Impact Statement, which she read aloud at the sentencing hearing and which has also been filed as an exhibit.
(a) She suffers from anxiety and depression;
(b) She feels distrust, which has affected her other relationships;
(c) She has changed her phone number and social media accounts because strangers continue to contact her;
(d) She feels unsafe.
(7) Lastly, the offences were committed not within a marriage or common-law relationship, but within a relationship where there was intimacy.
V. Mitigating Factors
[26] The following are mitigating factors that I have considered:
(1) Mr. Wilson is youthful;
(2) He is of previously good character with no criminal record;
(3) He has successfully been on bail since December 13, 2016 without incident;
(4) He has the support of many friends;
(5) He has his own start-up company and supports himself financially.
(6) Mr. Wilson is a permanent resident in Canada and a sentence of six months of incarceration or more per count would render him ineligible to remain in Canada.
VI. Neutral Factors
[27] Neither aggravating nor mitigating is Mr. Wilson's lack of remorse or insight.
VII. Analysis
[28] As noted earlier, counsel for Mr. Wilson recognizes that a custodial sentence is appropriate when considering the principles of sentencing plus the aggravating and mitigating factors. However, Ms. Murphy urges the court to first consider imposing a conditional sentence in the range of four to five months or upwards to six months. In the alternative, counsel submits if the court finds that a conditional sentence is inconsistent with the fundamental purpose and principles of sentencing, then the appropriate sentence ought to be five months.
[29] The Crown is opposed to a conditional sentence arguing that the gravity of the offence and the degree of Mr. Wilson's responsibility is simply too great. The Crown's position is that a custodial sentence of six months custody for the intimate images offences, and three months jail concurrent on the assault (2x) and forcible confinement, but to be served consecutively, for a total sentence of 9 months in jail.
[30] I find the paramount considerations in sentencing Mr. Wilson are the principles of denunciation and deterrence, notwithstanding his potential for rehabilitation. I find that the intimate relationship violence coupled with Mr. Wilson then deliberately and cruelly sharing intimate sexual images as a means of revenge, must be denounced by the imposition of a jail sentence.
[31] I am not satisfied that a conditional sentence would achieve the relevant principles of sentencing. The gravity of the offence and the degree of Mr. Wilson's moral blameworthiness is very high. The aggravating factors in this case are many; the mitigating factors too few.
[32] I have also applied the principle of restraint in imposing what I believe is a just and fair sentence recognizing that Mr. Wilson is a first offender and a permanent resident in Canada.
[33] I have determined that an appropriate sentence in the circumstances is:
(1) For the s. 162.1 offence – a sentence of six months in jail less one day;
(2) For the assault (2x) and forcible confinement offences – a conditional sentence of 90 days to be served concurrent to each other, but consecutive to the sentence for the s. 162.1 offence;
(3) In addition, Mr. Wilson will be placed on probation for 18 months with conditions;
(4) As well, an order under s. 109 of the Criminal Code for five years; and a DNA order.
Conditional Sentence Order – Terms
[34] The terms of the 90-day conditional sentence order will include the statutory terms:
(1) keep the peace and be of good behaviour;
(2) appear before the court when required to do so;
(3) report as the court directs in person to a supervisor and thereafter report when required by the supervisor and in a manner directed by the supervisor;
(4) remain in Ontario unless you have prior written permission from the court or the supervisor to leave the province;
(5) notify the court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation.
[35] Additionally, you shall:
(1) report in person to supervisor within two working days of your release from custody, and after that, at all times and places as directed by the supervisor or any person authorized by the supervisor to assist in your supervision.
(2) Cooperate with your supervisor. You must sign any release is necessary to permit the supervisor to monitor your compliance and you must provide proof of compliance with any condition of this order to your supervisor on request;
(3) Live at a place approved of by the supervisor and not change that address without obtaining the consent of the supervisor in advance;
(4) For the first 45 days of the conditional sentence order, you will be confined to your home except:
(a) for two hours one day per week, to be discussed momentarily, in order to acquire the necessities of life;
(b) for any medical emergencies;
(c) for going directly to and from or being a school, employment, court attendances, religious services and legal or medical or dental appointments;
(d) for carrying out any legal obligations regarding compliance with this conditional sentence order;
(e) or any other reason deemed appropriate by your supervisor.
(f) You will confirm your schedule in advance with the supervisor setting out the time for these activities, and you shall carry the supervisor's written approval on you when outside of your residence.
(5) During your period of home confinement:
(i) do not change your place of residence without first obtaining the written permission of your supervisor;
(ii) you must present yourself at your doorway upon the request of your supervisor or a peace officer for the purpose of verifying your compliance with your home confinement condition;
(6) do not contact or communicate in any way either directly or indirectly by any physical, electronic, or other means with N.A.;
(7) do not be within 100 metres of anyplace you know N.A. to live, work, go to school, frequent or any place you know her to be except for required court attendances;
(8) do not post/send a message or share/publish any photograph or image of N.A. on any social media site or make any reference to N.A.;
(9) do not possess any weapon as defined by the Criminal Code (for example: a BB gun, pellet gun, firearm, imitation firearm, crossbow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person)
Probation Order – Terms
[36] The same conditions apply to the 18 months of probation except paras. 4 and 5, which relate to the period of home confinement.
Ancillary Orders
[37] There will also be ancillary orders of DNA and a section 109 weapons prohibition for a period of five years.
Released: April 23, 2019
Justice M. Wong