Ontario Court of Justice
CITATION: R. v. N.N., 2019 ONCJ 512
DATE: January 10, 2019
Information #18-34150
#18-37714
HER MAJESTY THE QUEEN
v.
N.N.
G U I L T Y P L E A P R O C E E D I N G S
BEFORE THE HONOURABLE JUSTICE P.C. WEST,
on January 10, 2019, at OSHAWA, Ontario
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO AN ORDER OF JUSTICE P.C. WEST, DATED JANUARY 10, 2019 UNDER SECTION 486.5(1) OF THE CRIMINAL CODE
APPEARANCES
R. Connolly Counsel for the Crown
R. Moriah Counsel for N.N.
THURSDAY, JANUARY 10, 2019
MR. MORIAH: Good morning, Your Honour. I’m here on the N.N. matter. I’ll just want to confirm the details of what I understand will be a joint position for your consideration. You’ll recall this was judicially pre-tried back some time ago. It was adjourned to today’s date for a plea to be entered on the part of N.N.
THE COURT: I’m sorry, who are we talking about?
MR. MORIAH: N.N.
COURT CLERK: Line 29 to 32, Your Honour.
MR. MORIAH: Thank Madam Clerk for that.
THE COURT: Yes, I have it. Is N.N. here?
MR. MORIAH: He is here. He is just outside and I just want to confirm the details of the position so that I can do the final plea inquiry with N.N. and we’ll be prepared to proceed.
THE COURT: Sure. You know that I do the plea inquiry, as well.
MR. MORIAH: Yes. I’ll defer to Your Honour.
THE COURT: I’m pleased that you are doing it before.
MR. MORIAH: Yes.
THE COURT: So your client understands the questions that I’m going to be asking.
MR. MORIAH: Yes.
THE COURT: All right.
MR. CONNOLLY: I also have a victim impact statement that just arrived today.
THE COURT: If you want to pass that up to me.
MR. MORIAH: I thank my friend for that.
THE COURT: Then I can read that and I will give you whatever time you need, Mr. Moriah.
MR. MORIAH: I suspect I’ll just need about ten minutes or so.
THE COURT: Not a problem. You are going to be speaking to the Duty Crown, or speaking to your client?
MR. MORIAH: Just speaking to my client, I think.
THE COURT: Okay. That’s fine.
MR. MORIAH: And I will perhaps speak to the Duty Crown.
...OTHER UNRELATED MATTERS SPOKEN TO AND DULY RECORDED BUT NOT TRANSCRIBED HEREIN
THE COURT: Next matter, Mr. Connolly.
MR. CONNOLLY: N.N., line 29 to 30.
THE COURT: Yes.
MR. MORIAH: That’s my matter, Your Honour.
THE COURT: Yes.
MR. MORIAH: Last name again for the record, Moriah – M-O-R-I-A-H, first initial is R. N.N. is before the Court. Before we begin, I did get the victim impact statement. I have reviewed that with N.N. and I’ll be frank, I have some concerns about the content of the victim impact statement. I think that that sort of needs to be addressed because it’s not a situation I think where I would be content that it be filed as is, and I don’t know that it’s something – it’s unusual that I would have to deal with it in this fashion that I could agree that it just sort of have things struck out of the victim impact statement. In my view, when I look at it, there are a number of aspects of it that just sort of....
THE COURT: I don’t know that, with great respect Mr. Moriah, under what was passed by the Conservatives in terms of the Bill of Rights of victims, I don’t know that victim impact statements, subject to the Crown speaking to the victim in the matter, but this matter has gone over – I’ll say this, this matter has gone over too many times. There is going to be a resolution today.
MR. MORIAH: I have no issue with that. N.N. is here with that expectation. I have concerns about the content of the victim impact statement based on the case law and what it says about what the victim impact statement should actually include. And where there are allegations that are made of things that just, quite frankly from N.N.’s perspective, did not happen, these are allegations in relation to other offences, that’s a problem. Those things just should not be in a victim impact statement.
THE COURT: I can only sentence him, as you know and I know and the Crown knows, I can only sentence your client on the charges to which he pleads guilty to and that are before the Court. So if there’s other allegations that are contained in the victim impact statement, they may be concerns on the part of the victim and she’s expressing them. She’s entitled to express her views. But you know in terms of what I am bound by law to consider in determining an appropriate sentence, what I can do and what I can’t do.
MR. MORIAH: I don’t have any issue with your understanding of your obligations, Your Honour. It’s just that the victim impact statement is supposed to be about the actual allegations that are before the Court. That’s the nature of the victim impact statement. When they then essentially devolve into making allegations of other things as it relates to my client, I just don’t think that that appropriately should then become an exhibit on sentencing.
THE COURT: It comes down though, Mr. Moriah, to you trusting me.
MR. MORIAH: Oh, I do.
THE COURT: And if you do then frankly, it doesn’t change anything, with great respect. Victims are entitled to express their views, and I am only entitled to sentence your client with respect to the charges that are before me. And so if there’s other allegations, this is a judge alone matter. There’s no jury here. So I would instruct myself to disabuse my mind of those, and if you want to draw those to my attention how those are not before me as a charge, then that’s fine. But we’re not going to delay this matter. This matter has gone over a number of times, and the matter is going to proceed.
MR. MORIAH: And to be clear, I’m not asking that it be delayed. I just want to let the Court know at the outset that there were concerns that I had that I’d be raising, just because if there were issues with me raising those or with how the Crown would want to deal with the victim impact statement as a result of that, I wanted to at least make that clear to the Court before we actually proceeded. And to be clear, Your Honour....
THE COURT: I understand, but that’s what Counsel generally do during submissions, right?
MR. MORIAH: No, certainly, right. It’s just that in usual, in most cases there aren’t the number of issues that I would have to raise with the victim impact statement as I do in this particular circumstance, and that’s the reason that I raise it. This is unusual for me to do this, Your Honour. I have never actually come before the Court and said I had a concern with the victim impact statement where I felt as if there was something I needed to say before my client entered the plea. But I think it’s important, based on what he’s told me. And I want to make it clear, I am not saying this in any way to suggest that I have any concerns about....
THE COURT: But you and the Crown, just to be fair, this is a matter that was pre-tried before me.
MR. MORIAH: Yes.
THE COURT: I have received a summary of the facts that the Crown was going to read as the facts pertaining to the charges that are before the Court.
MR. MORIAH: Yes.
THE COURT: And those facts I had indicated at the pre-trial that you and the Crown needed to come to agreement in advance of the plea.
MR. MORIAH: Absolutely.
THE COURT: As to which facts would be read to me. I think you’ve been in front of me enough times to know I’m not one of those judges that appreciate counsel, when the plea is taken, standing up and saying, “Well, Your Honour, we admit this and that but we don’t admit X, Y, Z.” I don’t think that’s appropriate.
MR. MORIAH: No, absolutely.
THE COURT: And so I know that you know that, and I know the Crown that conducted the pre-trial knows that about me.
MR. MORIAH: Yes.
THE COURT: So I expect you to have, in effect, an agreed statement of facts.
MR. MORIAH: Absolutely.
THE COURT: That’s coming before me and I will sentence only on the facts that are before me.
MR. MORIAH: Right. And that’s what I was going to say next, Your Honour. I don’t want you to take it as me suggesting that I have concerns about you.
THE COURT: I don’t know, because I’ve read the victim impact statement that’s been filed by the victim in this matter, I don’t know what things you take issue with. If it’s necessary for you to raise those with me, you will.
MR. MORIAH: I certainly will.
THE COURT: And if they are properly before me, then they’re properly – that may be a determination I have to make.
MR. MORIAH: Certainly.
THE COURT: But if they’re outside the scope of the facts that the Crown is putting before me with respect to the matter, then obviously they are not things that I would sentence on. But they may be things that are very real to the victim. And we’re not having a trial, and that’s the whole purpose of a guilty plea.
MR. MORIAH: That is the whole point.
THE COURT: Is that we don’t have to have a trial.
MR. MORIAH: Absolutely.
THE COURT: And the victim doesn’t have to be put through cross-examination. Right?
MR. MORIAH: Absolutely, and I understand that. And this is why I wanted to just raise this at the outset, because I think it is important to make sure that those concerns are clearly on the record.
THE COURT: All right. So are we ready to go?
MR. MORIAH: I am, yes Your Honour.
THE COURT: All right. Is N.N. present?
MR. MORIAH: He is present. I’ll ask him to come forward right now.
THE COURT: Have him come forward.
MR. MORIAH: Just come forward here, N.N. Just stand here and His Honour is going to have some questions for you of the plea inquiry that I have gone through with you, and he will want to ask you questions about that, as well.
THE COURT: You know that I do the plea comprehension myself, as well?
MR. MORIAH: Yes I do, Your Honour.
THE COURT: So which charges is N.N. pleading guilty to?
MR. CONNOLLY: My understanding is that he is pleading guilty to the – I’m not sure how they’re ordered on the information – 162.1, non-consensual distribution of internet images dated February 27th, 2018.
THE COURT: Can I see the information, please? Just give me a moment. I’ll put a checkmark as I go through them, Madam Clerk. I want to get it down accurately. There’s more than one information?
MR. CONNOLLY: That’s right. There is the information that has two counts of publish intimate image.
THE COURT: And there is going to be a plea?
MR. CONNOLLY: To the first count.
THE COURT: To the first count?
MR. CONNOLLY: February 27th.
THE COURT: All right. Just give me a moment. There’s two separate dates.
MR. CONNOLLY: That’s right.
THE COURT: In respect to the two charges on this information. Are there facts being read in about the second occasion as part of the guilty plea, even though there’s not a plea of guilty in respect of....
MR. MORIAH: I have no issue if they are, in terms of the discussions I had with N.N.
THE COURT: So all the facts are going to be read in with respect to the publish intimate images?
MR. MORIAH: I’m content with that. I know that....
MR. CONNOLLY: It was the same activity, Your Honour.
THE COURT: I understand it is, but it is two different occasions.
MR. CONNOLLY: That’s correct.
THE COURT: And that’s going to be put before me is the facts. That’s important for my plea comprehension hearing with N.N.
MR. CONNOLLY: Yes.
THE COURT: So that’s count one on that information. And then on the other information there is?
MR. CONNOLLY: My understanding from the notes, and I know Counsel went out to speak to the Duty Crown, but those charges were going to be withdrawn.
MR. MORIAH: That is correct.
THE COURT: Are any of the facts – there’s two counts on this other information.
MR. CONNOLLY: For breaches.
THE COURT: For breaches. Are any facts being put before the Court?
MR. MORIAH: Not to my understanding. That wasn’t part of the discussion I had with the Duty Crown.
THE COURT: That’s your understanding?
MR. CONNOLLY: That’s what the agreed facts do not include references and I think perhaps Counsel, when he was referring to the victim impact statement refers to some of those breaches. But we’re not asking him to admit those. We’re not asking him to plead or admit to those facts as part of the plea.
THE COURT: I understand. And the Crown is going to withdraw for a plea to?
MR. CONNOLLY: To the publish.
THE COURT: To the publishing and the facts on both being read in.
MR. CONNOLLY: Yes.
THE COURT: All right. So N.N., this is your decision to plead guilty to a charge of publish intimate images of L.C. without her consent. Yes?
N.N.: Yes.
THE COURT: You need to answer me verbally, okay?
N.N.: Yes, Your Honour.
THE COURT: And answer loudly so I can hear you. It’s a big room, so give me your outside voice, right?
N.N.: Yes, Your Honour.
THE COURT: Okay. This is your decision to plead guilty?
N.N.: Yes.
THE COURT: No one is forcing you to plead guilty?
N.N.: No, Your Honour.
THE COURT: No one has exerted any coercion towards you to get you to plead guilty today?
N.N.: No, Your Honour.
THE COURT: You’re pleading guilty because you are guilty of that offence?
N.N.: Yes, Your Honour.
THE COURT: You understand that the facts will relate to two occasions, not just the charge that you’re pleading to, but two different occasions when you published intimate images?
N.N.: Yes.
THE COURT: And you are prepared to admit those facts are all correct?
N.N.: Yes, Your Honour.
THE COURT: You know that if you plead guilty to this that you are giving up your right to a trial?
N.N.: Yes.
THE COURT: And you are prepared to give up that right?
N.N.: Yes, Your Honour.
THE COURT: You understand from the pre-trial that this is not a joint submission. Yes?
N.N.: Yes.
THE COURT: Right, the Crown and your counsel are not agreeing on a sentence that they wish me to impose. You’re aware of that?
N.N.: Yes, Your Honour.
THE COURT: I will listen to what your counsel has to say, I’ll listen to what the Crown has to say in terms of the appropriate disposition, but ultimately it will be up to me, based on your personal circumstances and the circumstances surrounding the commission of the offence. You understand that?
N.N.: Yes, Your Honour.
THE COURT: I’ll even listen to what you have to say, right, so if you wish to say something to me before I pass sentence I’ll give you that opportunity, and that is up to you. You do not have to say anything, but if you wish to say something there will be a point before I sentence you that I indicate to you that you can say whatever you feel is appropriate for you to say to me before I pass sentence. Do you understand that?
N.N.: Yes, Your Honour.
THE COURT: Do you still wish to plead guilty?
N.N.: Yes, sir.
THE COURT: Okay, I’m satisfied that N.N. understands the nature and consequences of his guilty plea. He can be arraigned, please, on the count one in respect of, I think it is – I may have the date wrong.
MR. CONNOLLY: February 27th.
THE COURT: February 27th, 2018.
COURT CLERK: You are N.N.?
N.N.: Yes.
COURT CLERK: N.N., you stand charged on or about the 27th day of February in the year 2018 at the Town of Whitby in the Central East Region did knowingly publish an intimate image of L.C., knowing that L.C. did not give their consent to that conduct, or being reckless as to whether L.C. gave their consent to that conduct, contrary to section 162.1 of the Criminal Code of Canada. On March 27th, 2018 the Crown elected summarily. Sir, to the charge as read how do you plead, guilty or not guilty?
N.N.: Guilty.
THE COURT: You can have a seat beside your counsel. Listen carefully to the facts. I’ll be asking your lawyer whether the facts are correct and then I’ll be asking you the same question. Go ahead, Mr. Connolly.
MR. CONNOLLY: Yes, thank you Your Honour. These are the facts alleged by the Crown. The complainant explained in her sworn statement to police that she and the defendant had been in a relationship, a dating relationship for approximately one and a half years. She had sent intimate photographs and videos of herself to the accused in January, 2017, with her consent. She did not give any consent to send these photos to anyone else. She did not send these photos or videos to anyone else and they weren’t posted anywhere. They went only to him.
She stated that the defendant added these photos and videos to Snapchat on February 27, 2018. When removed from Snapchat the defendant added the removal notice to his Snapchat, titled “motivation”. On March 1st, 2018 he added the same photograph and video to Snapchat and Instagram. The victim stated that she felt betrayed and hurt and had cried every night since it had happened. She stated she’s been recognized by multiple people from these photos and videos and had been contacted. When the police spoke with the defendant he admitted posting the photos and videos and he told the police that he was mad at the victim. I can simply indicate that the photographs or images that were displayed revealed her breasts and buttocks.
THE COURT: Was there another day that this was done on?
MR. CONNOLLY: What happened is he took it down, he put it back up, and he re-posted the same photographs and videos on March 1st. So it was the same activity, same photos.
THE COURT: That was on March 1st?
MR. CONNOLLY: That’s right. That would have been the second count.
THE COURT: And wasn’t there another social network site that was utilized?
MR. CONNOLLY: It was Snapchat and the other was....
THE COURT: Instagram?
MR. CONNOLLY: Instagram.
THE COURT: Mr. Moriah, are those facts correct?
MR. MORIAH: Those facts are admitted as correct, Your Honour.
THE COURT: If you’d stand please? You can stay right where you are, sir. Just speak loudly to me. You are going to sit down again, but you have heard the facts read by the Crown?
N.N.: Yes, Your Honour.
THE COURT: Yes, and you agree those facts are correct, sir?
N.N.: Yes, Your Honour.
THE COURT: All right, sir, on your plea of guilty and on your admission of the facts, I make a finding of guilt. Have a seat again. Crown’s position?
MR. CONNOLLY: Yes, there is the issue, Your Honour, of the victim impact statement that Crown would ask to be marked as an exhibit in this sentencing proceeding.
THE COURT: Victim impact statement will be marked as exhibit one on sentence.
EXHIBIT NUMBER 1: - Victim impact statement. - Produced and marked.
THE COURT: I take it there is no record?
MR. CONNOLLY: No record is being alleged, Your Honour.
THE COURT: Madam Clerk, I’ll give you the victim impact statement later. I may want to make reference to it.
COURT CLERK: Thank you.
THE COURT: Position of the Crown?
MR. CONNOLLY: I did have some submissions to make about the victim impact statement, if that’s all right.
THE COURT: Go ahead.
MR. CONNOLLY: I was listening to your discussion with Mr. Moriah about the victim impact statement and how it’s dealt with and Your Honour is quite right, he is being sentenced for the offence and the facts that he admitted. And as Your Honour is well aware, the items that are permitted are the physical, emotional, and financial impact of the crime on the victim in the case. It so happens that in a certainly different forum, but a couple of cases from the Ontario Court of Appeal, R. v. Clem (ph) and R. v. Catchgard (ph) dealt with the specific issue of what can go in and what shouldn’t be in. And I think while it’s always helpful of course if the parties can agree, the important statement in the judgment in Clem the Court of Appeal said that the expectation is judges will, and they accepted some wording I had used before the Review Board, to sift the grain from the chaff.
THE COURT: Yes.
MR. CONNOLLY: And that because you are a skilled jurist, expect that you will only consider those things that are mandated: the physical, emotional and financial impact on the victim, not the allegation of other crimes that might be adverted to, or other factors that don’t fall within the parameters of it. It’s on that basis that the Crown offers it. I read it, I acknowledge there are things that are adverted to there, which I’m sure Mr. Moriah will draw to your attention, which would not fall strictly within the four corners.
But as I’m sure Your Honour appreciates as well, and I don’t intend to take Your Honour through the victim impact statement line by line, but I don’t think it would be overstating things, Your Honour, if I were to indicate that the impact on the victim in this case, given the nature of the offence and the two incidents admitted to, is profound. L.C., in her victim impact statement, in quite graphic and considerable detail, the potential impact – the impact on her as a consequence of these intimate images being published one might say that perhaps L.C.’s experience in the fallout from it is somewhat a cautionary tale. While certainly what people do consensually in the privacy of their own intimate relationship, which is usually informed by trust, it comes with risks, and it comes with risks that people like N.N. might abuse that trust and publish it, and that’s why in fact Parliament enacted it as a crime, because of the damage it does to those who are revealed in these kinds of images and videos.
So clearly, it falls in a number of areas. It’s disrupted her education, it’s disrupted her social relationships, she avoids places where she might see N.N., whether it be work, school, other locations, or his friends, because these were published. These were available to the community at large and were seen presumably by a number of people who she indicates mentioned having seen it to her. So quite clearly, it heightened her embarrassment, her anxiety, her fear, it affected her in a severe way emotionally in terms of her ability to sleep. She cried constantly, it affected her mental health, it changed her patterns in terms of going to the gym, she mentions. She changed her work schedule in order to avoid the, what I’ll the social fallout of the defendant, N.N.’s actions. And also, she does indicate, and as Your Honour aptly noted, she’s fearful. She doesn’t want to see him, and you’ll hear what the Crown’s position is about terms of probation and so on. She doesn’t want to run into him, and I’m sure in a perfect world she’d like to avoid having any contact with his friends, as well.
And so quite clearly, her main interest is to move on with life, to not have these images disseminated in the future. I don’t know if he still has those images somewhere, but certainly not to have them published, and if they are available, to be destroyed so that she’s not going to be subject to ongoing embarrassment and harassment from people who are aware of the existence of the images, and that she’s the person depicted in them. That’s what I wanted to say about the victim impact statement. And I had previously advised, and Your Honour is aware that L.C. is present in the court today.
THE COURT: I understand.
MR. CONNOLLY: With respect to the Crown’s position, Your Honour, and hopefully I’m not saying it wrong, but the Crown is recommending to the Court a sentence of 30 days jail, and probation for two years. And the Crown’s position is informed, Your Honour, by matters that were discussed at the judicial pre-trial. Specifically, there was discussions around the fact that a loan was made by the victim to the defendant of $3,300, relation to enable him to purchase a car seemed to have played some sort of a role in what had happened. And I expect Mr. Moriah will tell you that he has those funds in trust in order to make restitution to the complainant of that money. With respect to the probationary terms, sir, be asking that....
THE COURT: How long for the probation?
MR. CONNOLLY: I believe, and hopefully I’m not misstating this, we were requesting two years. I hope I haven’t deviated from what you were previously advised.
THE COURT: Terms?
MR. CONNOLLY: Terms, to report initially and thereafter as required. No contact or communication, direct or indirect with L.C. And I know Your Honour will use that section that also talks about telecommunications.
THE COURT: Yes.
MR. CONNOLLY: Social networks, and so on. Not to be within 100 metres of anywhere she’s known to live, work, go to school, or is known to be - a situation if she’s in the Tim Hortons having a coffee, you can’t go in there during the period of probation. Also not to possess any images of L.C. and immediately destroy any images he has in his possession. As well, perhaps somewhat repetitive, but she was quite concerned that it be put on the record that that 100 metre radius that he needs to avoid would include where she is going to school, which is […] College, and the University of […].
THE COURT: Is he still going to the same school?
MR. CONNOLLY: I don’t know that.
THE COURT: Mr. Moriah can advise me of that.
MR. MORIAH: I’ll provide some submissions on that, Your Honour.
MR. CONNOLLY: And I guess I’ll just end my submissions by saying that university and law school is a long time ago, certainly for me and for other folks, but college and university, although it has many people that attend there, people tend to congregate in small communities of people that know one another, take classes together and so on and so forth, and I think for L.C. that her concern is that she doesn’t want to bump into him if they’re taking the same sociology course together and have to sit beside him or in the same room with him for the next 12 months while they’re taking courses, or that he shows up at the student pub that she goes to.
THE COURT: I understand.
MR. CONNOLLY: It’s those kinds of concerns. I appreciate that it’s a serious encroachment on perhaps some of his privileges in terms of where he pursues his education, but I’m sure Your Honour will be creative in addressing that. Subject to any questions, those are my submissions.
THE COURT: Mr. Moriah.
MR. MORIAH: Yes, Your Honour. Your Honour, I think that what my friend said about the dangers of social media perhaps is quite appropriate in this circumstance. We often see it in different situations in Criminal Code offences where it results....
THE COURT: I have to ask you to keep your voice a bit louder, sir, so I can hear what you’re saying.
MR. MORIAH: I’ll move this a little bit closer. We often hear about in different circumstances search warrants being executed, very serious allegations involving violence, etcetera, where we have people that post things on social media that perhaps implicate themselves. In this situation it’s a little bit different, but the danger again is the same and the impact has spread out, obviously, for L.C. And now N.N. is feeling that impact, as well. And it’s something that is very difficult to deal with, obviously, for the Court, because it’s a different type of an offence, and I appreciate that. It’s different because it’s a little bit different than somebody being assaulted where the implications of the actions in some respects spread beyond the actual initial action.
That being said, we do have to try and balance the need for the appropriate sentence for N.N. with his particular circumstances. Sentencing is difficult, it’s an individualized process, we hear it all the time. And it’s a very, very hard road to undertake when you have somebody like N.N. in his particular circumstances. N.N. is very remorseful for what happened.
THE COURT: You’ve got to keep your voice....
MR. MORIAH: N.N. is very remorseful for what happened.
THE COURT: Well, I’m watching him weep as he is stood before me. And I don’t think there’s - his guilty plea and his acceptance of responsibility through his plea of guilty all indicate to me an indication of remorse. I trust he read L.C.’s victim impact statement, because I think that the consequences and impact to her are huge.
MR. MORIAH: Significant. Absolutely, Your Honour. And I can say that N.N. did read the victim impact statement with me, so that’s not lost on him.
THE COURT: I’ll be frank, too, this really has now become a joint submission, it sounds to me, because based on the comments that I made at the pre-trial about the restitution, that wasn’t put in as part of the facts, but in my view the loan and maybe some anger on the part of your client with respect to demands for repayment of that loan, that led him to make the ill-advised decision to do what he did and why he’s pled guilty.
MR. MORIAH: Well there also were strains on the relationship at the time.
THE COURT: Well maybe there were. And that was probably why she was making demands for the money to be repaid.
MR. MORIAH: Certainly.
THE COURT: Because the relationship was ending and it’s a large sum of money that she had forwarded to him to allow him to purchase a car.
MR. MORIAH: Yes.
THE COURT: Not knowing that he was going to do what he did.
MR. MORIAH: Absolutely.
THE COURT: That’s one of the aggravating circumstances in respect to this case, it seems to me. I said that at the pre-trial, I’ll say it again now, when a relationship is ending, that in no way for whatever other issues are going on in the relationship would ever, ever justify or even explain the conduct that N.N. engaged in, because what he did was completely ignore what had been, I’m sure, an intimate, loving, caring relationship for about a year and a half. And it’s like none of that mattered to him.
MR. MORIAH: I mean, I agree that that’s absolutely an aggravating factor, and unfortunately, thankfully I don’t work in Family Law, but it’s not unusual in the breakup of relationships. It’s no excuse by any stretch of the imagination.
THE COURT: I don’t even think it’s usual, with great respect, Mr. Moriah. I’ve been involved in the administration of criminal justice for 37 years, sir, and I can tell you I think that young people today exchange too many things that are intimate.
MR. MORIAH: Fair.
THE COURT: And the Crown referred to this. There’s a risk. Okay, and it’s because of the technology that is now available but wasn’t available before. The only way you would get intimate pictures of your partner when I was growing up and going to university is if you had a developing centre where you could take film and develop it.
MR. MORIAH: Right.
THE COURT: But we now have phones.
MR. MORIAH: Right.
THE COURT: That take pictures, and I think there needs to be a message that goes out. But I can tell you, it is still not a common feature of relationships. I think too many young people are exchanging intimate images, but I don’t believe it is a common retaliatory method for people to get back at individuals that they have once been intimate with by way of trying to punish them. And when it happens, it is a serious offence.
N.N. is about to go to jail as a first offender, and I can indicate to you the reason he’s got to go to jail is because this offence is so egregious that it demands only a jail sentence. And I can tell you a colleague of mine in Newmarket had a very similar case with a young man who was in university, had his whole life ahead of him, but the weight and the severity of the action ultimately led him to the point where a very similar sentence that I’m about to impose with respect to your client was imposed because he could not fashion a non-custodial sentence that would properly denounce the behaviour and act as a general deterrence to others because of the prevalence of young people exchanging these intimate images.
MR. MORIAH: And just to finish my point, Your Honour, I wasn’t suggesting that the actual distribution of the intimate images was something that was prevalent, necessarily. What I was referring to was the lack of proper judgment in breakdowns in relationships, and it manifests itself in many ways, and this is the way that it manifested itself for N.N. So I’m not suggesting that that conduct itself was something that was usual. What I was suggesting, and I think that we can agree that it happens because we see it in this court in the criminal context, is that the reality of relationships is that some people do not do well in the breakdowns in those relationships, and that’s what they have to learn to deal with. And it doesn’t in any way excuse the conduct and it’s unfortunate in this situation that N.N. had things in his possession that allowed him to act out his concerns or upset about the outcome of the relationship in the way that he did. But that is what happens sometimes in relationships. And certainly that’s what happens in relationships with young people, as well.
I think it shouldn’t be lost on the Court that N.N. was 20 years old at the time that this happened. He’s 21 years old now. And with experience, and I think you made a comment about that earlier in relation to another matter, we gain something in life. And N.N. has much to gain in terms of experience, especially as it relates to relationships. This is going to be a very difficult lesson for him, no doubt. But he’s 20 years old now, and that’s significant.
THE COURT: Where is he going to university now?
MR. MORIAH: Up until the point in time that he was arrested on the breach he actually was attending […] College.
THE COURT: He was?
MR. MORIAH: He was attending […] College.
THE COURT: Right.
MR. MORIAH: And now, as a result of that, he continues those courses but he does them online. And he now is making arrangements for the completion of those courses online so that ultimately, he will be able to do exams off-site. They have a process whereby that can happen. Once he completes this year then he will move to transfer whatever credits he has to […] College, so that he’ll be able to continue.
THE COURT: To […]? That’s his intent?
MR. MORIAH: That is his intention. And just in terms of the actual course that he’s taking, presently he’s in the process of taking business administration and marketing.
THE COURT: What is he taking?
MR. MORIAH: Business administration marketing. Previously he had actually attended […] College and done mechanical engineering, but they’d had a strike back in 2015, ’16 and he didn’t complete that course and then changed the degree that he wanted to complete. He actually still has an interest in doing mechanical engineering, but for now he had done some event planning as part of work that he’d done with a company called […], and that’s a company that’s owned by friends that do event planning for birthdays, hall rentals, bookings, etcetera. So he does plan to continue to do that. It’s a means by which he can make some income but ultimately he does believe that he will likely go back to doing mechanical engineering. It was something he had an interest in, he’d started the course and he was doing well but for the strike that occurred.
He was born in Scarborough, grew up in the Scarborough area. He grew up with his mother and his father and sister and grandmother. His parents divorced when he was in grade 12, and at that point in time he lived with his mother and his grandmother and his sister. He’s still very close with his family, both his mother and his father. They’re not here today but I can tell you that they’ve been in regular contact with me, as well. They’re obviously very concerned about what’s happened because this is a young man that’s never been in trouble with the courts before. He’s a young man that otherwise worked very hard. He always had employment. He always attended school and completed that at a high level. He always had a bright future in front of him.
Clearly, this is a situation where he made a very, very bad decision. And it’s unfortunate that now this bad decision is going to follow him for some time, because beyond the conviction that is going to be registered, we know that there are going to be implications for him for travel. He knows that there is going to be implications for him for work, implications for him for being able to volunteer and do some of the things that he would have otherwise been able to do.
And those implications are going to flow for some time. We’re not just talking about after he steps out of court today, in a year after or two years after, depending on whatever the period of probation is. But even beyond that there is going to be a period of time that he’s going to have to wait to potentially be able to get this record expunged. And until that happens, whatever work he does in school, whatever work he does to better himself is going to be on hold. So beyond whatever jail sentence N.N. gets, there are going to be significant consequences for him that essentially now as a result of this lapse in judgment, as a result of how he dealt with the breakup of this relationship are going to likely follow him around into his late 20s, at least. And that’s N.N.’s cross to bear. That’s the reality. But it is important, in my submission, for the Court to consider that in the context of what the sentence is going to be, because that is an implication of what any sentence is going to be, even if just a conviction is registered.
THE COURT: One of the things N.N. has to realize, though, is that it may be having an impact – I hope that it doesn’t – on L.C., but the difficulty with the internet is once something is released onto the internet, pretty hard to get it off the internet.
MR. MORIAH: And that’s....
THE COURT: Snapchat is one thing, because those disappear, but people can copy Snapchats and then download them and then they have them and they can then send those images around. But Instagram doesn’t automatically erase things the way Snapchat does. So the reality is while this may have an impact on N.N. in terms of his future, which I recognize it will, but I’ll say this now, it’s completely as a result of his conduct.
MR. MORIAH: As I indicated. Yes, Your Honour.
THE COURT: But the impact to L.C., I hope this will not be the case, but the possibility certainly exists that this will continue for her for the foreseeable future, if people have downloaded these images.
MR. MORIAH: No, and that’s a fair comment, Your Honour.
THE COURT: That’s what makes this so egregious, it seems to me.
MR. MORIAH: And I don’t necessarily dispute that, Your Honour. That’s the difficulty in sentencing in these cases, is that there is the difficulty of the impact of the internet.
THE COURT: I’ve been told by Mr. Connolly that you have money in trust?
MR. MORIAH: I do, Your Honour. I can indicate that N.N. has provided funds in trust.
THE COURT: How much money?
MR. MORIAH: Three thousand dollars in trust. In fact, that was what I thought the amount was, and in fact that’s what I thought we discussed.
THE COURT: Sorry, say again?
MR. MORIAH: Three thousand dollars, which is what I thought we’d actually discussed at the pre-trial. That was what my note was. But in any event, I can....
THE COURT: The amount the Crown had indicated at the pre-trial was three thousand. I know that the victim impact statement says $3,300.
MR. MORIAH: Yes, right. So I did get that in trust from N.N., based on what the discussions were at the pre-trial. So I can indicate as an officer of the court that I have that, and I can certainly make arrangements through the Crown’s office to make sure that L.C. gets those funds.
THE COURT: I’ll let you make those arrangements. L.C. is here.
MR. MORIAH: Certainly.
THE COURT: She hears that this money will be coming back to her.
MR. MORIAH: Yes. I don’t have much else to add, Your Honour. I’ll go through some of the mitigating factors. I’ve touched on them somewhat. He is a youthful offender. He’s not a young person, obviously, but was still 20 years old at the time that this occurred. He has no criminal record, as I indicated already. I’ve already talked about the guilty plea and the expression of remorse, and I think that that’s quite evident from N.N. today. And finally, I made the reference to the support of family.
In terms of the sentencing principles, I don’t dispute what Your Honour says about the principles that are at play here. I will say that I will ask Your Honour to seriously consider the principle of restraint. I know it’s difficult in these particular circumstances, given the particular nature of this offence. But at the same time, given N.N.’s background and his own personal circumstances, in my view this is still a case where Your Honour can consider a non-custodial sentence. I know you’ve given your position on that, and I will say that my position still remains a non-custodial sentence and probation. Even if it’s a lengthier period of probation for N.N., with community service hours, with counselling as Your Honour might direct, those would be my submissions as to what the appropriate sentence would be for N.N., given his own particular circumstances.
This is always going to be a difficult situation in sentencing. It’s made even more difficult where you have a young person that’s not been before the Court and is facing the very real prospect of jail. It’s not an easy thing for the Court to have to consider in these circumstances. We know that ultimately we want to always consider all other options other than custody. I appreciate sometimes there may not be other options. My only submission is in this case there can be other options. I had suggested other options to the Court, certainly probation. I would have suggested even a lengthy conditional sentence would be appropriate in the circumstances.
If Your Honour is of the view that the only appropriate sentence in this case is jail, given the fact that N.N. is in school, is doing well in school, and has been working hard at that, I would ask Your Honour to consider an intermittent sentence for N.N. so he can serve his sentence on the weekends, he can continue to complete his school, and at least do whatever he can to move forward with his life positively. Those are the only submissions that I have to make, Your Honour, subject to any other questions that you might have.
THE COURT: I don’t have a problem with intermittent sentence, Mr. Moriah, but I think as I expressed at the pre-trial, in my view this is a case, and I have expressed it to you today, as well, you are still asking me for a non-custodial, but I do not see a non-custodial sentence as being appropriate, having regard to the conduct. The Crown was asking, initially their position was much higher than the 30 days that they have come down to.
MR. MORIAH: Yes.
THE COURT: That if restitution was made that to me was an important feature of this case.
MR. MORIAH: Yes.
THE COURT: And I think the aggravating circumstances can adequately be addressed by a short, sharp jail sentence, which I indicated would be 30 days.
MR. MORIAH: Yes.
THE COURT: And I’m certainly prepared to have him serve that intermittently, but I don’t see it as a non-custodial sentence in any way, shape or form, having regard to the conduct that your client engaged in.
MR. MORIAH: I understand.
THE COURT: The reason this offence now exists, as you know, was because of a young woman in the east coast.
MR. MORIAH: Yes.
THE COURT: Who ultimately took her life.
MR. MORIAH: Yes.
THE COURT: Because of the bullying and I think it was obviously – it was much more extensive.
MR. MORIAH: Yes, sustained course of conduct in that case, nonetheless.
THE COURT: And over a longer period of time.
MR. MORIAH: Yes.
THE COURT: But I think, as I’ve already expressed, the impact on any victim where they have been in an intimate relationship and have trusted the other person and provided intimate photographs, and then those are then used to get back, that’s why this offence now exists.
MR. MORIAH: Yes.
THE COURT: Because of the change in technology that’s available. I don’t know that I can express it any more other than to say that in my view, this is absolutely egregious conduct that has clearly had, as Mr. Connolly has indicated and what I read in the victim impact statement, tremendous impact right after it occurred, and right up to today’s date.
My hope for L.C. is that she can, now that this matter will be completed at some point today, she can put all of this behind her and move forward and on, because this has nothing to do with her. It’s not something that she did wrong. She did nothing wrong. And then I think that’s part of the thing that she’s trying to deal with on her own, is just the way it’s made her be embarrassed and ashamed to know that other people that she did not want to have those images of herself, that they’ve been able to see them. I personally can’t imagine how devastating that might be for an individual. She certainly expressed that, I think very poignantly and very articulately in her victim impact statement. So the fear that she talks about, the embarrassment that she talks about, the shame, I don’t think she should feel any shame. I can understand the embarrassment, but she did nothing wrong. And that’s why this is an offence that, in my view, calls for a custodial sentence.
MR. MORIAH: The only other point that I’ll make, Your Honour, just in relation to the period of probation, I’d ask for one year for the period of probation.
THE COURT: I’m sorry, say again?
MR. MORIAH: One year for the period of probation. I know the request is for two years for the period of probation.
THE COURT: I guess I’m going to be asking this question to both of you. I’ve been told Mr. Connolly wants a reporting probation, but I wasn’t told anything that the probation officer is going to do with N.N. I personally think that N.N. needs to receive maybe some counselling because of the conduct that he engaged in. And maybe it’s the PAR program, which frankly would demonstrate to N.N. how he ought to treat an intimate partner with the kind of respect and dignity that they deserve, because if he’s going to have future relationships with other women in the future, and those relationships end for whatever reason, he has to know how to end a relationship appropriately.
I mean, the reality is this is not physically assaultive behaviour, but the behaviour is emotionally assaultive to the victim in this matter, and I personally think that to assist N.N. in the future that a probation officer could have him involved in various forms of counselling, either individual or group, where he learns some valuable techniques and strategies about relationships, because he’s a young man as you keep telling me, 20 years of age, and he will have maybe many relationships before he decides that he’s met the one person he wants to spend the rest of his life with. And I would hate to see him back before the courts because nobody ever stopped to say this is how you’re supposed to end a relationship, this is how you maintain a relationship, this is how you have a relationship that is strong and healthy. And it’s all about respect, right? It’s all about showing dignity and respect to the person that you were in the relationship with, and he didn’t show any of that to L.C.
MR. MORIAH: And it’s true that in this particular circumstance that’s what happened. N.N. is....
THE COURT: I certainly am not asking, would be asking that he report for the entire two years. But I think two years also provides, given the fear that L.C. has expressed, which I think is real on her part, and I will say this to L.C., too. I’m somewhat disappointed, if I can put it that way - that may not be the right word – in how she feels about the administration of criminal justice and the police, and how she feels that they may have let her down in terms of providing protection to her. I read that in her victim impact statement. I think that is directly related to how others in our system responded to her concerns. What she may not realize is that police officers unfortunately are overworked, just like most people in our society, and they have to investigate things properly. They have to develop grounds in order to lay charges, and they would have had to do that. Of course, that doesn’t really assist her in terms of how she’s feeling when she’s hearing things or seeing things that are causing her concern.
So I think a two-year probation provides her with the assurance that for the next two years there is a court order that he is not to have contact in any way with her, and not to be within 100 metres of anywhere that he knows her to be. That is clearly reflected in her victim impact statement as a concern. But I will, as I often do, put a term in when I know what the counselling is that somebody is going to perform. I will put within that that the reporting can end once that counselling is completed, so that it may only be a year of reporting for N.N. in respect of the probation order. But keep him away from L.C. I think is appropriate.
MR. MORIAH: And just on that point, I imagine Your Honour was able to gather from the victim impact statement the concerns that I had.
THE COURT: Sorry, gather from the victim....
MR. MORIAH: The victim impact statement the concerns that I had about the contents. I’ll just indicate that first off there already is the reference to the breach. The conditions of his bail were quite straightforward, he was not to have any contact with L.C., and he didn’t have any contact with her. There’s no indication he knew she was actually at that school.
THE COURT: Well I understand that, but she also believed there was a term. I don’t know if there was one.
MR. MORIAH: There never was a term.
THE COURT: I haven’t looked – of 100 metres, but that may be something that was conveyed to her, and maybe conveyed improperly.
MR. MORIAH: Right.
THE COURT: If that’s true then N.N. wasn’t committing any breach of his bail, and that’s why the Crown took the position in not insisting on a guilty plea in respect of those two charges. But the fact remains it’s her fear, which is real, and is fully understandable and is not something that she’s manufacturing. It’s something that is real to her. And seeing N.N. at her school and hearing mutual friends talking about him, about conversations they’ve had, these are all real things, Mr. Moriah.
MR. MORIAH: Your Honour, I’m not suggesting that those aren’t real things from her perspective.
THE COURT: I’m not punishing your client because he may have been on the same campus as L.C. I’m only commenting that she was led to believe certain things, and as a result of that she thought she would not have to see him and she saw him, and that caused her great fear.
MR. MORIAH: Just to be clear, I wasn’t suggesting that. I can’t comment on her state of mind at the time that she saw N.N.
THE COURT: I understand. And then it’s her state of mind that is appropriate in a victim impact statement.
MR. MORIAH: However, there was a suggestion that there was a breach of his conditions. I wanted to make it clear that based on the conditions, that wasn’t the case.
THE COURT: But the Crown didn’t proceed on that charge. You’re either trusting me or you’re not, Mr. Moriah, with great respect.
MR. MORIAH: No, I understand, Your Honour. The reality is as my role as counsel I have to put these things on the record. That’s what my role is, Your Honour. I’m not suggesting....
THE COURT: But I’m not taking that into account. I’m speaking to L.C. right now, and the comments that I’m making as to why I think a two-year probation order that has terms in it that he’s not to have contact with her for that period of time is appropriate.
MR. MORIAH: I understand, Your Honour.
THE COURT: And it’s because of her subjective fear, having seen him on her campus and knowing that he was going to that school, and then the delay in the police and doing what she felt was appropriate to be done with respect to what she believed because of what she had been told by others, not N.N., and I’m not taking into account that there was in fact a breach because the Crown didn’t insist on a plea to that charge.
MR. MORIAH: Understood, Your Honour.
THE COURT: And if that had occurred, that would be a further aggravating circumstance and the Crown would have asked for a guilty plea in respect of that charge. They did not.
MR. MORIAH: And again Your Honour, I’m just putting these on the record because as counsel I feel that it’s my obligation to do so.
THE COURT: I don’t know that it’s necessary. I know what the Court of Appeal has indicated, as Mr. Connolly has indicated, and I know what the Court of Appeal has instructed me as a sentencing judge to properly take into account in respect of a victim impact statement. What I read in this victim impact statement is that this has had an emotional toil and toll on L.C. on her emotional well-being, knowing that the trust that she put in N.N. was breached to the egregious extent it was, and that mutual friends and people that she doesn’t even know saw intimate images of herself because of what N.N. did, and that this has caused her fear, has caused her embarrassment, all of those things that she describes in terms of her emotions, and how it affected her in terms of her work, in terms of her school. Those are all things that I think come directly out of what N.N. did.
MR. MORIAH: And I don’t dispute any of those things, Your Honour.
THE COURT: So those are the things I’m considering in this victim impact statement.
MR. MORIAH: The only other thing I’ll indicate is that N.N. disputes that there was ever any physical violence in the relationship as alleged in the victim impact statement. Those are the main comments I wanted to make about it, Your Honour, subject to any questions that you might have.
THE COURT: I’m sorry?
MR. MORIAH: Those are the main comments I wanted to make...
THE COURT: Yes, that’s fine.
MR. MORIAH: ...about the victim impact statement, subject to any questions that you might have.
THE COURT: No, I have no questions.
MR. MORIAH: Thank you, Your Honour.
THE COURT: All right. Thank you. I’m not going to give sentencing right now, N.N. We are going to have lunch, let staff off. I need to say some things that are appropriate to say. I also have a lunch and learn program that’s offered here at the courthouse of which I am the chair of the committee that plans those and we have a program today with lawyers and judges who will be attending, so that’s what I’m going to go to right now, but I will give sentence at 2:15 this afternoon.
MR. MORIAH: Your Honour, I’m actually in front of Justice Green on another matter right at 2:15. Is it possible to deal with it a bit later on? I don’t know what your schedule is like, and what else is left on the docket for today.
THE COURT: Well let me speak to Justice Green.
MR. MORIAH: Yes. I know she said about the lunch and learn, as well.
THE COURT: And I will see her at lunch and we’ll find out which one of us gets you first.
MR. MORIAH: Okay. Thank you, Your Honour.
THE COURT: We’re in the middle and I think we may get you first, so check here first.
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THE COURT: I am just being advised by Madam Clerk, this is for all those in my courtroom’s benefit, the big television over here is videos and we are going to have some videos and they only happen at certain times, and they’re to happen at 2:15. So Justice Green will get you first. I will talk to her. How long do you think you’ll be with her?
MR. MORIAH: I suspect we’ll need probably about a half an hour, Your Honour.
THE COURT: Half an hour, that’s fine. So for L.C. and her friend, we’ll be back on your matter probably around quarter to three, three o’clock, okay? That’s when we’ll be dealing with N.N. And I also, just to put all of it on the record, I have a psychiatrist apparently who is going to be speaking to me by video on another matter, from Waypoint up in Penetanguishene, which is one of the psychiatric facilities, about an offender who is before me, I guess, this afternoon. Is that right, Madam Clerk?
COURT CLERK: Yes, Your Honour.
THE COURT: Yes. So I have to deal with those things.
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R E C E S S
U P O N R E S U M I N G:
THE COURT: N.N., you can remain seated until I come to the sentence.
R E A S O N S F O R S E N T E N C E
WEST, J. (Orally):
N.N. has pled guilty to a charge under section 162.1 of the Criminal Code, that everyone who knowingly publishes an intimate image of a person, knowing that the person depicted in the image did not give their consent to that conduct is guilty of either an indictable offence or an offence punishable on summary conviction. Crown elected to proceed in this matter on the basis of summary conviction.
I did not see the images that were published by N.N., but I was advised that they depicted L.C. in various stages of undress, such that her breasts or her buttocks were exposed. N.N. and the victim in this matter had been in an intimate relationship for approximately a year and a half, leading up to the offence. That relationship ended, I’m told abruptly, and with some animus between the parties. And at the conclusion of the relationship, L.C. became concerned that money that she had loaned N.N. was not going to be paid back and she started to request the repayment of that money. I’ve heard two figures with respect to that money, the first was during the pre-trial and in the facts that were provided to me then it was the amount of $3,000, and in the victim impact statement it indicates $3,300. Apparently this money had been provided by L.C. to N.N. to allow him to purchase a motor vehicle. I don’t know any more about that. She began asking him about repayment of that money and they got into an argument about that apparently, on February 27th, 2018.
There were certain comments made by N.N. with respect to what he might do because of her requesting the return of this money, and on that date he published a number of intimate images of L.C. that she had previously sent to him when they were in their intimate relationship. He posted these images to the social media platform “Snapchat”. They apparently were added to N.N.’s Snapchat story and were available for all of those who might be following him to view. There is a concern expressed by L.C. and certainly anything that is put onto the internet, the concern is that those images, even though they may be taken down may be copied by individuals who saw them and re-posted in other forums and other social media.
Now, I’m told that apparently L.C.’s face is covered but she is able to identify herself from the pictures and N.N. pled guilty to posting these pictures. It was L.C.’s position in her statements to the police that she had only provided these images to N.N. when they were in their relationship and she did not in any way give him permission or consent that they should be distributed in any other way. I was told, in the facts, that this Snapchat story was initially taken down, but again on March 1st, 2018 N.N. again posted the same photo and video on Snapchat and he also posted them on another social networking site called “Instagram”. Again, L.C. did not consent to these images being distributed.
N.N. was arrested on March 1st, 2018 as a result of L.C. going to the police and showing them the Snapchat storyline, as well as the Instagram, and I’m advised that N.N. – this comes out of the pre-trial – apparently gave a cautioned video statement where he made at that time a full admission of his conduct. I did not see the entire statement but he acknowledges that L.C. had not consented to the publication of these images and that he had posted them or uploaded them because he was angry with her.
N.N. is 20 years of age, he is single, he has been attending or had been attending […] College. He now does his courses online and intends to transfer to […] College once this year is finished. He is currently in business administration, I believe in second year. He has no record, no criminal record of any sort. I don’t know a lot more about him. No pre-sentence report was requested. He has entered pleas of guilty to what is a very serious charge and has accepted responsibility for his actions and in my view has accepted that responsibility right from the day he was charged, and his acceptance of responsibility, in my view, is also demonstrated by his guilty plea before me today.
I have observed N.N. as the facts were being read and as comments were being made by the Crown Attorney respecting L.C.’s victim impact statement in which she described the significant impact that the posting of these pictures that she had provided to an intimate partner who she trusted at the time, and how that trust was abused and broken, and how that she was embarrassed and hurt and upset as a result of what she believed would be many mutual friends and other friends of N.N. who would have had the opportunity on the two occasions that these images were posted to view them. It had a tremendous impact on L.C. in respect of creating anxiety for her and as well as fear.
One of the difficulties for her is that she was under the mistaken impression that N.N. was to remain 100 metres away from her and yet she continued to see him because they were both attending the same university college, and she saw him on campus and this caused her considerable fear and upset and turmoil. She describes in her victim impact statement how this has not only affected her emotionally, but also physically. It affected her sleep. It was something that she could not rid her mind of. Her sleep was disturbed for an extended period of time and she found herself unable to eat because of her emotional upset and the amount of crying that she was doing because of what had happened. It even affected, when one reads the victim impact statement, her work. She indicates that for a period of time she found that she was unable to work because of thinking about what had happened and her fear and her embarrassment that some of her co-workers might have seen what N.N. had posted about her. She describes how she still has feelings of fear and being afraid in respect of coming into contact with N.N.
There is a provision of the Criminal Code under section 718.2 that it is a statutorily aggravating circumstance under 718.2(a)(iii.1) that evidence that the offence has had a significant impact on the victim considering their age and other personal circumstances, including their health and financial situation, so I do take that into account.
I know that N.N. and L.C. were in an intimate relationship for a year and a half. I don’t know if they were residing together. I was not advised in either the victim impact statement or by counsel, but there is a further statutorily aggravating circumstance that evidence that the offender in committing the offence abused their spouse or common-law partner is also a statutorily aggravating circumstance. Certainly someone who for a year and a half is in an intimate relationship with an individual, it may be bordering on a common-law relationship. I don’t know if that applies in this case, but the breach of trust that exists in respect of the intimate images that were provided by L.C. to N.N., I don’t think there can be any doubt.
This matter was extensively pre-tried before me. The position of the Crown originally on sentence was a sentence that was greater than the sentence the Crown ultimately requested. I expressed the view at the pre-trial that one of my concerns for L.C., given I’m assuming her age is similar to that of N.N.’s, is the loaning of $3,000 to him, which is sort of the catalyst to commence the argument between N.N. and L.C. and there may have been other things that led to the breakdown in their relationship, but it certainly was part of the catalyst that led to N.N. posting these intimate images. And as a result, it was of concern to me that there be restitution that was expressed to counsel. I am pleased to see that N.N. provided restitution to Mr. Moriah and this $3,000 is currently in his trust account, available to be paid to the victim in this matter, L.C., and the Crown is going to provide information to allow that to occur. Mr. Moriah will do that as an officer of the court. I won’t make any orders with respect to restitution because it is going to be made by Mr. Moriah, and I am anticipating that will be done in very short order. That I think is also a very significant step taken by N.N. in trying to right the wrong that he committed.
N.N. has expressed that, and this is through his counsel, that this was a foolish mistake that had serious consequences that he recognizes now to L.C. It also is going to have serious consequences to him, just the nature of the charge and the period of time it will take for him to erase this from his record, and again no guarantees that that will be done. There’s an application that he will have to make to do that.
I am of the view, as I expressed during submissions, that this is a matter that requires a custodial sentence to reflect the serious nature of the offence. This is not a charge that can be dealt with by way of a non-custodial sentence, probation. Probation will be involved, but I don’t see it as an appropriate sentence having regard to the principles of deterrence and denunciation, and in my view those are the paramount sentencing principles that I must impose. I have to take into account aggravating and mitigating circumstances pursuant to section 718 of the Criminal Code, which sets out the sentencing principles for judges, and there are some mitigating circumstances that are clearly present in this case. I’ve indicated a number of those as I have been giving my reasons for sentence.
I think I should read this part of the Criminal Code under section 718 which says:
“The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 acknowledgment of the harm done to victims or to the community.”
The fundamental principle of sentencing under section 718.1 is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
In my view, this is an offence of significant gravity, having regard to the intimate nature of the images that were posted by N.N., and the circumstances under which those images were provided to him in the first place, and in my view, the degree of responsibility of N.N. is exceedingly high. His moral culpability is high because he was the only person who could have published those images. They were given to him and him alone, and it was given to him in trust, in an intimate relationship and certainly there is a risk that when someone provides such images, as Mr. Connolly indicated in his submissions, that those images may find their way out into the public, and that is a cautionary tale, as he indicated, to every member of our community. However, it does not lessen the culpability of N.N. for his conduct, and in my view the only way to appropriately deal, even though this is a first offence for a youthful first offender, and I am mindful of cases like Priest and Dubinsky and Battise in our Court of Appeal which indicate that for youthful first offenders every alternative other than imprisonment should be considered, but there are those offences where imprisonment is the only appropriate disposition.
In my view, having regard to the mitigating circumstances of this case, the original position of the Crown, which I have noted it being four months was not an appropriate sentence, having regard to N.N.’s youth; the fact that he has no criminal record; the fact that he admitted responsibility when he was confronted initially by the police; the fact that he has given his counsel full restitution in respect to this matter; and the fact that he’s entered pleas of guilty and we did not have a trial where L.C. would have been faced with cross-examination that I believe would have been victimizing her a second time, and of course N.N.’s guilty plea has prevented that from happening. All of those things in my view reduce the Crown’s original position of four months down to the 30-day sentence that he is now asking me to impose.
Mr. Moriah is asking for a non-custodial sentence, and as I indicated at both the pre-trial and throughout submissions today, in my view that is not a sentence that I can accede to. However, I want N.N. to hear this: There are many other decisions, this is unfortunately, it isn’t something that is common, but it is certainly an offence that is starting to occur with more regularity than it did prior to the invention of cell phones that take instant pictures or SLR cameras that don’t need film, and so there’s certainly more opportunity for these types of images now to be taken between consenting adults, and that is not something that is a crime, unless of course it involves children or things of that nature. However, while it may be that these types of offences can be committed with more ease today because of the technological advances, what is clear to me is that the only way that the principles of denunciation and deterrence can properly be demonstrated in the sentence that I impose is that it be some form of a custodial sentence.
What I want to say to N.N. is in my review over the break since his pleas were entered today I have seen sentences where there were other offences involved, lengthier periods of time when the images were being posted, but where sentences were much greater than even the Crown’s original position, in cases far more serious in terms of their facts. Individuals, some of them with criminal records, and that’s why the sentences were a lot longer. I think the Crown’s original position was – I think perhaps I expressed this at the pre-trial - perhaps a little high, having regard to N.N. being a youthful first offender, and that an intermittent sentence is I believe the more appropriate way to deal with this matter, and that’s why in my view a 30-day sentence is the appropriate sentence, and I will permit N.N. to serve that sentence intermittently, which means I’m assuming on weekends. Mr. Moriah, you will tell me.
MR. MORIAH: That’s correct, Your Honour.
THE COURT: Yes. And is it South Toronto Detention Centre he would like to serve it, or is it he has a ride that he can get to Central East Correctional Centre in Lindsay?
MR. MORIAH: I don’t know that he’s actually thought about which one. I usually just automatically defer to the one that the Court usually uses for housing remands.
THE COURT: Well the difficulty with that, it’s in Lindsay.
MR. MORIAH: Exactly.
THE COURT: That’s where our court generally has....
MR. MORIAH: Right.
THE COURT: He will go to Lindsay tonight and be released tonight after processing, but if he lives in the Durham area, GO train getting downtown is a whole lot easier than trying to find a ride to go to Central East Correctional Centre in Lindsay.
MR. MORIAH: I’ll speak to him very quickly.
THE COURT: Speak to him about it, please.
MR. MORIAH: South Detention Centre.
THE COURT: South Toronto?
MR. MORIAH: Yes.
THE COURT: N.N., I want you to understand – this is probably a good time for you to stand, as well. This is only a recommendation by me. There’s no guarantees that you’ll be permitted to serve the intermittent sentence at Toronto South. You may have to make arrangements. One thing I’m going to make very clear to you is that you have to be at the jail on time. If you’re not there on time there is a criminal offence of unlawfully at large that you would be charged with. They won’t let you in if you arrive even five minutes after the time that I’m going to set for you to be there. If you arrive with alcohol in your system, any quantity, they won’t let you in and you’ll be charged with unlawfully at large and that would lead to other potentially custodial sentences. So it’s very, very important, since I’m going to permit you to serve the sentence intermittently, that you arrive on time, in a sober condition, no alcohol in your system at all, and basically I’m going to tell you what that means is depending on when you are surrendering yourself, for the two days prior you shouldn’t have anything to drink at all, and you should not have – I don’t need to know if you’re a user of any illicit substances, but if you are you should not use any because if it is obvious to the jail that you are coming with something in your system, again they won’t let you in and the same consequences.
Your intermittent sentence will be followed by a two-year probation order, and it will have the following terms: The statutory terms, the most important of which is keep the peace, be of good behaviour. It means don’t commit any other criminal offences. And then there is that while you’re serving your intermittent sentence you must appear at the jail to serve your intermittent sentence on time, in a sober condition, with a blood alcohol concentration of zero, and not under the influence of or in possession of any controlled substance unless you are taking that controlled substance pursuant to a lawfully obtained prescription.
This will be a reporting condition probation, so you will report in person to a probation officer within five working days of your release from custody. You can’t see probation today because they’re up on the fourth floor and you’re going to go into custody tonight. You’ll be taken from the court into custody to Central East Correctional Centre to be processed. So within five working days. You’ll be given the paper work and there will be a phone number that you’re to contact the probation office to set up your first appointment. And then after that at all times and places as directed by the probation officer or any person authorized by the probation officer to assist in your supervision. Your reporting requirement is going to end when you’ve satisfied your probation officer that you have completed all of your counselling.
You’ll live at a place approved of by the probation officer, not change that address without obtaining the consent of the probation officer in advance. And you are not to contact or communicate in any way, directly or indirectly by any physical, electronic that includes all social media, or any other means with L.C.. Madam Clerk, I have the victim impact statement, which is an exhibit. And there are no exceptions to that. And you are not to be within 50 metres of any place where you know L.C. to live, work, go to school, frequent, or any place you know her to be. And there are no exceptions.
You are to attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer, complete them to the satisfaction of the probation officer for domestic violence, which may include the Partner’s Assault Response PAR Program, or any other reason that the probation officer deems appropriate. You will sign any release of information forms as will enable your probation officer to monitor your attendance, completion of any assessments, counselling, or rehabilitative programs as directed, and you shall provide proof of your attendance and completion of any assessments, counselling, or rehabilitative programs as directed.
The only last thing that I will say is to L.C. I’m going to indicate to you, ma’am, that as far as I’m concerned this, what has happened, should not in any way define who you are in the future. You should put this completely behind you. It should obviously have an impact on how you conduct yourself in the future because while you might think initially you can trust someone with everything, even the most intimate things about yourself, certain things probably should never be shared, like intimate photographs. I’m telling you that because that is something that I think is done too often. Relationships end, sometimes even when you don’t want them to end. But this should not define you in any way as to who you are. I’m saying that to you very seriously, and that if you need to get some counselling to talk to someone, then that’s what you should do. You should pursue that.
What I am going to say to you finally, N.N., is that if you are out and about when you are not serving the intermittent sentence or when you are back at school or wherever, and I don’t know if you live out here or if you live in the city, I don’t need to know right now, that’s not necessary, but my clerk will ultimately be showing you an address to make sure it’s the same one that is on the information or if there is a new one. But what I want to say to you is this, I want it to be fundamentally clear, if you see L.C. walking down the street coming towards you, you turn 180 degrees, run as fast as you can in the opposite direction. That’s what you have to do. If you go into a restaurant while you are on probation for the next two years, and you see L.C., you will turn and leave that restaurant. You cannot be there. You can’t be within 50 metres of her. That’s half of an NFL football field. That’s a great distance. If you are at university and you happen to see her, again same thing applies. Just leave, right? Don’t put yourself in jeopardy because I have made certain terms and I think for L.C. it will give her peace of mind and comfort to know that these conditions are in place for the next two years. And if you do nothing to breach those terms, then that will probably assist her with moving on, as well. I think that’s something that you can do.
I was asked to impose a term, this will be on the probation order as well, that you are not to possess any images of L.C., and that you are to destroy any images that you may still have, if you do. Nobody is going to necessarily come to investigate you at your house. The police I don’t think would have the right to come into your house to check that out, but if by accident you had some images and you posted them again or they were posted by accident, you can be assured the police will be coming to your address. Or if something else happened that the police happened to have the right to look into your phone or computer and they found that you had those images still, you’d be breaching your probation order. I do want you to understand all of that.
You would like to serve on weekends. I’m thinking the easiest way would be on a Saturday morning surrender, and then a Sunday night to be released, and that won’t interfere with schooling in any way. I am going to say Saturday morning at 8:00 a.m. at Toronto South. I’m making a recommendation for Toronto South Correctional Centre, and to be released on Sunday nights at 6:00 p.m. And that will be commencing, you will be going into custody today and then being released tonight. So then Saturday, January 12th at 8:00 a.m., to be released on Sunday, January 13th at 6:00 p.m., and then every Saturday and Sunday, same times, until the sentence is served. You will not serve the full 30 days because unless you misbehave you normally get one-third off. That is in the legislation dealing with Provincial reformatories. You will serve 20 days, so it will be in effect ten weekends that you will be in custody. Any questions about the orders that I’ve made, N.N.?
N.N.: No, Your Honour.
THE COURT: I think that’s everything.
MR. MORIAH: The only comment, Your Honour, I may have missed it, if I recall correctly you were content that the probation be non-reporting once he completed any counselling that was suggested.
THE COURT: I indicated that at the very outset.
MR. MORIAH: I just wanted to make sure. I might have been speaking to N.N. at the time.
THE COURT: Yes, that his reporting will end once he has completed his counselling.
MR. MORIAH: Thank you, Your Honour.
THE COURT: I said that and I meant that, so you get it done quickly, sir, then obviously your reporting condition will end. That’s why I put that term in. The remain reason is, for two years, is to give L.C. peace of mind. The last thing I will say, Madam Clerk, I don’t know if there is a section 486 publication ban.
COURT CLERK: There is not.
THE COURT: Is there not?
COURT CLERK: No.
THE COURT: There should be. Let me just find the section. What is your position, Mr. Connolly, with respect to a 486?
MR. CONNOLLY: I’m just checking the section myself.
THE COURT: The section number is not included, but I am sort of surprised by that. I have a 2018 Criminal Code. Whether I’m right or wrong, it’s my view that there is nothing about my reasons for judgment or anything we have dealt with in this courtroom today dealing with N.N. and L.C., her name should not be, if my judgment is reported in any way there should be the prohibition as it relates to anything that would identify L.C. in respect of being the victim in this matter. I take it you take no issue with that?
MR. MORIAH: No, Your Honour.
THE COURT: Madam Clerk, I’ll make it under section 486.4 of the Criminal Code restricting publication as it relates to sexual offences.
MR. CONNOLLY: That’s fine, Your Honour. I also happened to be looking at 486.5. I think that also authorizes the Court to make such an order, as well. Only thing, you can’t make both. It says unless an order is made under 486.4. Subsection 1 I think would make it apply.
THE COURT: Yes. No, I see that there. That may be the more appropriate one to make the order because section 162.1 is not listed, even though in my view it should be listed because it relates to intimate images being published. But in any event, I will make an order restricting publication under 486.5(1) of the Criminal Code to preserve your identity. I don’t know whether this judgment will ever be published in legal journals and whatnot. Sometimes they are, they make their way there, but when there is a publication ban it will be your initials, and it will be even N.N.’s initials, as well, because his identity might disclose your identity. So I am saying that nothing about this matter should in any way disclose the identity of the victim, L.C.
Good luck to you, N.N. I will say one last thing to you, and that is this. I believe things happen in life for a reason, and I think the reason this may have happened to you is that you may have some problem with respect to anger. Madam Clerk, actually as I think about it, I think under the counselling you can tick off anger management as well, please.
COURT CLERK: Yes, Your Honour.
THE COURT: Because this was done in anger. When you do things in anger you don’t think about what you’re doing. You don’t think about the consequences to you or to the person that you’re doing it to, and I think you need to get some assistance with respect to that. I have a sense, given the way you’ve conducted your demeanour in court, conducted yourself in terms of when the police confronted you, I think that’s pretty significant that you confessed everything to them and in effect said things to them that were reflected by your Counsel’s submissions today. It’s also reflected in your plea of guilty, your acceptance of responsibility through that guilty plea. And as I say, I think your demeanour in court today demonstrates both I think that you’re probably not wanting to go to jail, I understand that, but I also believe, based on my observations of you, that you are ashamed of yourself, by what you did to someone that you were in a very close relationship with for really a fairly long period of time. So I believe things happen for a reason, we’re to learn lessons, and hopefully the lesson that you’ve learned and the counselling that you’ll get will improve who you are as a person and ensure that this will never happen again when you’re in an intimate relationship with someone. All right, so good luck to you, and learn from all of this, right?
N.N.: Thank you. I just wanted to apologize to L.C.
THE COURT: You can if you wish, yes.
N.N.: For the grief that I’ve caused her, friends, family, school and stress. And thank you for this.
THE COURT: Okay. All right, good for you.
COURT CLERK: And all remaining counts?
MR. CONNOLLY: Withdrawn, please.
THE COURT: All remaining charges withdrawn at the request of the Crown.
MR. MORIAH: Your Honour, I’m going to confirm the address.
THE COURT: Do you have a winter coat? You should take that with you, yes. Thanks, Officer.
A D J O U R N E D