WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
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 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:
486.5 Order restricting publication — victims and witnesses. —(1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) Justice system participants. — On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
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
Date: 2020-04-08
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
O.K.
Before: Justice Leslie C. Pringle
Heard on: April 2, 2020
Reasons for Sentence released on: April 8, 2020
Counsel:
- G. McLoughlin for the Crown
- S. Hinkson for the Accused
Reasons for Sentence
Pringle, J.:
Introduction and Overview
[1] O.K. pleaded guilty before me by video on April 2, 2020 from the Toronto South Detention Centre (TSDC). The charges involve domestic violence, extortion, and transmitting intimate images of two separate women with whom he had relationships, one in July 2019 and the other in August 2019. At the time of these offences he was on bail for transmitting an intimate image of a former partner, with conditions not to access the internet or social media, and he also pleaded guilty to two counts of failing to comply with a recognizance.
[2] There will be an order under sections 486.4 and 486.5 banning publication of the names of the victims.
[3] There are two issues for me to address: the appropriate sentence, and the appropriate credit for pre-trial custody at the TSDC during the time of the COVID 19 pandemic.
[4] I have determined that an 18-month sentence is appropriate, less credit for pre-trial custody as follows:
- "Summers" credit at 1.5;
- "lockdown" credit at 1.5; and
- "COVID" credit at .5
[5] The enhanced credit includes recognition of the particularly harsh conditions at the TSDC, and during the time of COVID 19.
[6] The bottom line for Mr. K. on today's date will be a further sentence of 69 days, along with a number of other orders including probation.
[7] Let me explain the reasons for these conclusions.
The Facts
[8] A brief summary of the facts is that after meeting on Instagram, Mr. K. and M.A. had an intimate relationship for over two years. M.A. was living common law with another man during this time, and had 6 children. When her partner learned of her relationship with Mr. K., M.A. tried to end things with Mr. K., but he was angry and persisted. In June 2019 he recorded her performing consensual oral sex on him; the recording was without her knowledge. Later in July, he sent the video to a friend of hers, who sent her a screen shot.
[9] Then in July, when Mr. K. demanded to see M.A. and she refused, he told her that he would continue to disseminate videos or send them to her partner unless she gave him $200 to keep quiet. He also left her a voice mail saying that he would tell her partner about their relationship unless she came to give him oral sex or paid him money. Later that day he sent another sexually intimate video of him and M.A. having intercourse to M.A.'s friend, and messaged M.A. on Snapchat, saying, "I told you everyone gone see", "where my money" and "I'm not gone stop". Sometime later that day, M.A. arrived home to her building with her 3-year-old child, and Mr. K. was in the lobby. He slapped her in the face and she fell back into the elevator while he remained in the lobby. The child told her father, who then called the police. Mr. K. was not arrested until later in September.
[10] In late August, Mr. K. had been dating T.W. for about a month. During an argument on August 29, he elbowed her in the face and yelled at her, pushing his finger into her forehead, then pacing around her apartment in anger. Mr. K. slapped T.W. on the cheek and told her to tell the man she had been speaking with on the phone to come over, or else he would hurt T.W. He then took T.W.'s car without her consent and said that if she reported it, "she would see what happens". She contacted police. She discovered the car had been returned a short time after Mr. K. had taken it. When police arrived, T.W.'s apartment was in complete disarray, with the fridge and oven tipped over, and the TV ripped off the wall.
[11] Mr. K. and T.W. continued to see each other and have sexual relations, some of which were recorded with her consent. However, on September 18th, they argued and Mr. K. was upset that the father of T.W.'s child was at her place visiting with the child. Mr. K. insisted that Ms. W. leave, and threatened her, "come out or I'll start shooting". She went over to his place, but he was still upset and grabbed her by the neck and choked her until it was difficult for her to breath. He continued to question her about why the child's father was at her house, accusing her of having a sexual relationship with him. He slapped, punched, kicked and spat on her. She was lying on the floor in pain, and asked if she could use the bathroom. He then helped her upstairs to the bathroom, and as she sat on the toilet, he stood nearby and urinated on her face, saying, "look what you made me do". After calming down, he took T.W. home, but became frantic when he saw that the car of the child's father was still at T.W.'s home. Mr. K. banged on the windows, telling her to come out, but she didn't. He then posted 3 intimate videos of them in sexual acts to Snapchat as a story that anyone who followed him was able to view. She had never agreed that these videos could be shared with others.
[12] Mr. K. was arrested on September 21, 2019 and has been in custody at TSDC since that time. He was later found guilty after trial on the outstanding charges of distributing an intimate image of his former partner without her consent, and on November 18, 2019 he was sentenced to an equivalent sentence of time served previously on a different occasion, of over 8 months in jail.
Victim Impact
[13] Neither of the victims provided victim impact statements, although M.A. was emotional and had initially told the Crown she wished to do so. She later advised that she was finding it difficult to prepare the statement, but would try by April 1. By the time of the pleas she had not done so, and could not be reached. T.W. indicated to the Crown that she was happy Mr. K. was pleading guilty, and just wanted to put this behind her.
Mr. K.'s Circumstances
[14] Mr. K. is 30 years old and recently got his Grade 12. He would like to go to trade school. He accepts responsibility for these offences, and knows what he did was wrong.
[15] He has a very serious criminal record including robbery in 2011 (credit for 2 years in pre-trial custody), and aggravated assault in 2014 (2 years less a day on top of credit for 32 months in pre-trial custody). In 2017 he was found guilty of uttering threats and assault causing bodily harm to his domestic partner, who was the same partner who was the victim of the subsequent charge of distributing an intimate image. I am told that the assault causing bodily harm involved a back handed slap that caused the victim's tooth to come out. At the time he was on probation. The total sentence in that matter was 160 days on top of 193 days pre-trial custody, (almost a one-year sentence).
Brief Analysis as to Sentence for these Offences
[16] The Crown provided a number of cases involving repeated domestic offences by an offender with a record of violence, resulting in sentences in the range of 12 months. For publishing an intimate image, the Crown tendered cases resulting in sentences from 7 months to 5 years. Although one case involved a conditional sentence, no one is suggesting that would be appropriate here. Both counsel acknowledged the individualized nature of sentencing, which is clearly dependent on the facts of the offences and the circumstances of the offender.
[17] In this case the Crown seeks a sentence of 18 months in totality; the Defence submits 12-14 months would be appropriate.
[18] Mr. K.'s case involves a disturbing combination of physical domestic abuse and transmission of intimate images, with the sexual images being sent as an additional means of abuse and attempted control.
[19] On their own, the physical assaults were demeaning and humiliating: the assault on M.A. took place in front of her child, and the assaults on T.W. where Mr. K. spat on her and urinated in her face were especially degrading. The physical assaults on T.W. were also dangerous, involving choking her and then kicking and punching her.
[20] That degradation and humiliation was taken to a new level and amplified by the distribution of the victims' intimate sexual acts. Although the images may not have had a wide audience, there was no way to control their further distribution once they were sent to M.A.'s friend or to Mr. K.'s Snapchat followers. For Mr. K., it appears that the distribution of intimate images was used as extortion, revenge or punishment when he didn't get what he wanted from these women.
[21] It is aggravating that these events took place against the back drop of a very serious criminal record for violence, including domestic violence. Mr. K. had previously caused physical injury to his partner and been sentenced to jail for almost a year for that crime. When he committed these offences, he was on bail for the very offence of distributing intimate images, and was also prohibited from using the internet. He knew what he was doing was criminal.
[22] Mr. K.'s pattern of violence towards women, together with his deliberate acts of cyber revenge and humiliation when he was unsuccessful in getting what he wanted, is alarming. He has high moral culpability and there is a need for both specific and general deterrence of this behavior. While it is mitigating that he did plead guilty and avoid the need for the victims to testify, the aggravating factors are overwhelming here.
[23] The 18 months suggested by the Crown reflects the fact that Mr. K. received a sentence of almost 12 months for domestic violence previously, even absent any transmission of intimate images. He later received about 8 months in jail for a separate incident of transmission of intimate images of the same partner.
[24] In this case there were two further domestic partners who each suffered physical abuse by Mr. K., as well as victimization through the dissemination of their sexual images. Looking at the current offences in the context of Mr. K.'s past history and criminal record, I agree that a sentence of 18 months in totality is appropriate, less pre-trial custody.
[25] Accordingly, in relation to the offences against M.A., the sentence will be 9 months on the charge of extortion, with concurrent sentences of 9 months for transmission of an intimate image, assault and fail to comply x 2.
[26] In relation to the offences on T.W., the sentence will again be 9 months in totality, consecutive to the previous offences: 6 months on the charges of uttering threats, assault and taking motor vehicle without consent on August 29 (concurrent to each other), and 3 months on the charges of uttering a threat and assault on September 18, (consecutive to the August 29 charges but concurrent to each other). While Mr. K. did not plead to the transmission of intimate images in relation to T.W., he acknowledged those facts, and as agreed, I have taken them into account as aggravating factors in this sentence.
Credit for Pre-trial Custody
6.1 "Summers" Credit
[27] The parties agree that Mr. K. should be granted credit for his pre-trial custody in accordance with R. v. Summers, 2014 SCC 26 on the basis of 1.5. That is, credit from September 21, 2019 to April 8, 2020 = 201 days @ 1.5 = 302 days.
6.2 "Lockdown" Credit
[28] The parties also agree that some additional credit should be granted for Mr. K.'s pre-trial custody while under lockdown and confined to his cell for all or part of the day due to staff shortages at TSDC. The Crown suggests an additional credit of .5 days for lockdown; the Defence suggests 1.5.
[29] In R. v. Persad, 2020 ONSC 188, the accused was under lockdown for approximately 47% of his time at TSDC. Justice Schreck accepted Mr. Persad's evidence regarding the conditions of being confined to a small cell with lack of access to the shower, telephone and fresh air, unsanitary conditions and a tense atmosphere amongst inmates. His Honour reviewed numerous decisions from the ONSC and the OCJ deploring the conditions under frequent lockdown at TSDC since 2015, and concluded that they were "inhumane and failed to comport with human decency". He granted an additional 1.5 days of credit for lockdown days.
[30] In R. v. Inniss, 2017 ONSC 2779, Justice Forestell found that specific evidence of the impact of extended periods of lock down on the offender was not required in every case. As she said, "where… the evidence establishes that the offender was confined to a cell for extended periods of time on multiple days and denied access to fresh air for a total of over one year of his incarceration, hardship may be inferred".
[31] In Mr. K.'s case, the lockdown report indicates that since his incarceration on September 21, 2019, he has been under lockdown in his cell approximately almost 50% of the time. Latterly, in February and March, lockdown has been almost constant. Although one could get into mathematical niceties and parcel these numbers out month by month, I don't believe such an approach is very practical or helpful when aiming for some degree of parity and consistency from case to case. Suffice it to say that, based on the evidence here, the percentages of lockdown at TSDC fall well within the range that caused Justice Shreck to find it was inhumane. Considering the evidence of increasing lockdown to the point that it has been essentially continuous for the past two months, I have no difficulty inferring that the impact on Mr. K. and all inmates at TSDC has been particularly harsh. On that basis I would credit the "lockdown days" at an additional 1.5. That is, 104 lockdown days @ 1.5 = 156 days. (95 days to Mar 30, + 9 days to April 8 = 104)
6.3 "COVID 19" Credit
[32] With respect to "COVID 19 days", Justice Kozloff recently found in R. v. Abdella, (as yet unreported decision of Kozloff J, OCJ, dated April 1, 2020), that it was not necessary to have specific evidence of additional mental and physical hardship on Mr. Abdella from incarceration at TSDC during the current health crisis. In light of the greatly elevated risk posed by COVID 19, as well from the consequential restrictions on activities, visitors and programming at TSDC, Justice Kozloff inferred additional hardship caused by the pandemic, above and beyond any hardship caused by lockdown alone. In Abdella, Justice Kozloff granted a further one day credit on top of lockdown credit during the time of COVID 19.
[33] In R. v. Kandhai, 2020 ONSC 1611, Justice Harris also found that additional hardship in serving a jail sentence during the time of the pandemic is obvious, at least up to a certain degree. As he put it:
The entire country is being told to avoid congregations of people. A jail is exactly that, a state mandated congregation of people, excluded from the rest of the population by reason of their crimes or alleged crimes. The situation, which has led to drastic measures in society at large, is bound to increase day to day hardship in prison and the general risk to the welfare of prison inmates.
…relevant sentencing principles… include the need for enhanced credit to recognize lockdowns to which Mr. Kandhai has been subjected…
[34] Similarly, in very thoughtful reasons in R. v. Laurin, (as yet unreported decision of Crosbie J, OCJ, dated March 16, 2020), Justice Crosbie said:
What to do in response to the pandemic when sentencing a defendant can be challenging and difficult. On the one hand, sentencing principles, such as denunciation and deterrence, must be respected and regardless of the pandemic, Mr. Laurin killed someone and must be sanctioned. On the other hand, I have no hesitation in agreeing with Mr. Rybak that it is a matter of when, and not if, the jails are affected. It only stands to reason given everything that is happening around us, including the closures of numerous services and institutions.
[35] There were no confirmed cases of COVID 19 in the jails at that time. Justice Crosbie opted to give an additional credit of 9 months for harsh pre-trial conditions.
[36] In Mr. K.'s case, the Crown provided an Information Note, dated March 30, 2020, regarding the government's efforts to implement strategies to limit the effects of COVID 19 on the inmate population and correctional staff in Ontario. The Note acknowledges "several lockdowns" due to staffing shortages in provincial institutions, but says lockdown inmates continue to have access to meals, showers and professional visits. No mention is made of any time outside the cell for access to fresh air or exercise.
[37] At TSDC, we know that the lockdowns have numbered far more than "several", in that lockdowns were recorded in EX2 for 24/29 days in February, and 25/30 days to March 30.
[38] Significantly, the Note acknowledges that one in-custody inmate and one staff are known to have tested positive for COVID 19 at TSDC. At the time of the Note, there were 19 further tests pending results. Clearly, the risk of infection and the corresponding anxiety on the part of staff and inmates at TSDC looms large.
[39] Credit for particularly harsh pre-trial custody conditions is discretionary, and there is no mathematical formula. While agreeing that COVID 19 was a relevant factor, neither Justice Harris nor Justice Crosbie explained their calculation precisely. As far as I am aware at this point, Justice Kozloff is the only jurist to have put a number on how he calculated "COVID credit".
[40] I believe that putting a number on the enhanced credit is helpful, and will assist in understanding the many sentencing decisions judges will have to make about this issue in the coming weeks during the time of the pandemic crisis.
[41] I agree with Justice Kozloff that additional credit for particularly harsh conditions during the pandemic is appropriate, however, I see an element of overlap and "double counting" if credit is enhanced first for lockdown days, and then again for lockdown days during COVID. While I concur that there is increased mental hardship and health risk posed by incarceration during the pandemic, (especially when there are known cases of COVID 19 at the institution), I would put the "COVID factor" at an additional .5 days to avoid double counting.
[42] In summary, this means I will impose enhanced credit of 1.5 for every day of lockdown, plus an additional .5 days credit for every day served during the COVID crisis.
[43] It is everyone's fervent hope that this state of crisis will pass as Ontario "flattens the curve". In future, the situation will change – hopefully for the better in all institutions – but potentially, for the worse in some. The credit for "COVID days" may need to be adjusted accordingly. In the current circumstances of Mr. K.'s case at TSDC, I find that an additional .5 days of credit is warranted during his "COVID days".
[44] As to the start date for this calculation, Mr. Hinkson suggested that the true enormity of the COVID crisis in Ontario became apparent to all when the announcement was made that schools would close. While the date may be approximate, I accept that it is a fair starting point from which to calculate "COVID days" in custody. I will credit the days here from March 13 to April 8, that is an additional credit of 26 @ .5 = 13 days.
6.4 Conclusion re Pre-Trial Custody
[45] Mr. K. has been in custody a long time under particularly harsh and difficult conditions. For the 201 days he has been in custody he will be credited with having served a sentence of 302 + 156 + 13 days = 471 days. Given that the appropriate sentence is 18 months, he has 69 days left to serve.
Summary re Jail Sentence
[46] Information 19-45002997 will be marked as follows:
- Count 7, extortion: 69 days. (sentence that would have been imposed: 9 months, with pre-trial custody of 201 actual days, enhanced credit applied at 3.5 on this information together with information 19-45003631)
- Counts 5, 6, 7, 9 and 17: 69 days concurrent.
[47] Information 19-45003631:
- Counts 1, 3 and 7: 69 days concurrent to information 19-45002997. (pre-trial custody credit shared with that information)
- Counts 10 and 12: 69 days concurrent.
Ancillary Orders
[48] On behalf of Mr. K., Mr. Hinkson seeks an 18-month order for probation as opposed to the 3-year order sought by the Crown. However, based on Mr. K.'s past history, I believe he is someone who will need both support and supervision for an extended period in order to be successful in staying out of jail, so the duration will be one of three years. The terms of probation will be the statutory ones, as well as to:
- Report within 72 hours of release in person or by telephone to probation at 416 326 2950 and thereafter as directed
- Have no weapons
- Attend for assessment and counselling for domestic violence which may include PARS, and also for life skills
- Seek and maintain employment, education and/or skills training
- Sign releases
- Have no contact with M.A, her partner M.B, or any member of her family; or T.W.
- Not to be within 200 m of any of them
[49] The Crown seeks an order pursuant to s.162.2(1) prohibiting Mr. K. from using the internet or other digital network while in custody and while on probation, except for the purpose of employment and/or personal banking. The Defence resists this order.
[50] I am not going to make an order under s.162.2(1) for the following reasons. While Mr. K. is in custody, I trust that the correctional authorities will supervise any use of the internet or other digital network by him, (if such use is allowed at all while in jail). While Mr. K. is on probation after release, a ban on using the internet or other digital network except for employment or banking would be a broad and sweeping measure that would restrict communication with others and interaction with the world in a way that seems vastly disproportionate to the end sought to be achieved, not to mention very difficult to enforce. I agree with Mr. Hinkson that the end to be achieved is primarily accomplished, (in so far as it can be), by the criminal sanctions that Mr. K. knows will be swiftly and firmly enforced if he publishes any further intimate images without consent.
[51] In order to be very clear to Mr. K. about this, I will further restrict his options on probation with an additional condition:
- not to record, possess, access or distribute any intimate image of a person as defined by the Criminal Code, even with their consent.
[52] Extortion is a compulsory offence for DNA, and I will make an order for DNA now. In accordance with COVID protocols at this courthouse, Mr. K. will be required to attend on September 1, 2020 at 9 a.m. in court 301 to have the order executed. It will also be a condition of probation that Mr. K.:
- attend at 301 court at 1000 Finch Ave West at 9 a.m. on September 1, 2020 to have the DNA order executed.
[53] There will be a s.109 prohibiting Mr. K. from possessing firearms and other items listed in the order for 10 years, and prohibited firearms and other items listed there for life.
[54] A forfeiture order is made on consent in relation to the two cell phones seized from Mr. K. on arrest.
[55] Pursuant to s.743.21, there will be an order of no contact with M.A., her common law husband, M.B. or any member of her family, or T.W.
[56] The victim surcharge is waived in light of Mr. K.'s incarceration and his lack of employment.
[57] In closing, let me say that I am very grateful to Mr. Hinkson and Ms. McLoughlin for their help and professionalism in this somewhat complicated sentencing, and I appreciate that Mr. K. was prepared to appear by video under these unusual circumstances.
Justice Leslie C. Pringle
Released to the parties: April 7, 2020; released in court on April 8, 2020
