Ontario Court of Justice

Date: 2021 06 25 Court File No.: Halton Info # 2020-2280

Between:

HER MAJESTY THE QUEEN

— AND —

C.P.

Before: Justice Scott Latimer

Heard on: April 22, June 18, 2021 Reasons for Sentence released on: June 25, 2021

Counsel: Samantha Wollaston......................................................................... counsel for the Crown Jaime Stephenson......................................................................................... counsel for C.P.

LATIMER J.:

[1] This case involves the sexual harassment and extortion of an innocent seventeen year-old-girl. Seemingly out of the blue, she began receiving messages over social media by an unknown person threatening the release of an intimate image if she did not provide him with more.

[2] Days later, she received proof that he had made good on his threat, in the form of multiple unwanted messages from men who had seen her image on a public internet forum. Her tormentor later returned, this time accompanied by her home address and threats of “consequences” if she did not comply.

[3] Eventually, the police unmasked the online identity and revealed C.P., a young man known to the victim through her former boyfriend. He was charged by the police and fully confessed. After a series of pre-trials conducted during the pandemic, he has pleaded guilty to criminal harassment, extortion and distributing an intimate image without consent. For the reasons that follow, I sentence him to a year in jail.

I. FACTS

[4] C.P. and the victim, S.S., were socially connected through the people they dated: she was the ex-girlfriend of his girlfriend’s brother. What follows is an expanded version of what occurred. [1]

[5] On December 23, 2019, S.S., received Snapchat messages from an unknown account stating that he had nude images of her, and would post them on the internet with her personal identifiers if she did not provide him with more. As an offer of proof, the account – now known to be C.P. – sent a photo of S.S.’s breast. This image was known to her and she was able to recognize it. It had been taken when she was 17. She was not, however, otherwise recognizable in the photo; her face or any other identifier was not visible. S.S., properly concerned with this communication, blocked the unknown account, severing contact.

[6] Over the next three days, S.S. received multiple messages on her Instagram account from men advising that they had learned of her account after it was posted on ‘4chan’ (an online message board) alongside the picture of her naked breast. Connecting the dots, S.S. unblocked the unknown Snapchat account and pleaded for him to stop sharing her image. Approximately one week later, on January 7, C.P. anonymously contacted S.S. again, demanding that she send more images to him or he will post other intimate images that he purported to have. On March 1, further demands were made, saying that she had to send him nude images and videos immediately or there would be consequences. She was told, “remember I have your phone number and address, you will suffer consequences if you do not follow my instructions, the deadline is March 5, if you do not give me what I want then I will do it myself”. S.S. became terrified by these threats, which included the extortioner’s knowledge of where she lived.

[7] A police investigation caused a production order to be issued for the Snapchat account, and C.P. was quickly unmasked. He was arrested in the afternoon on March 5, before his deadline expired.

II. POSITIONS OF THE PARTIES

[8] For the Crown, Ms. Wollaston seeks a jail sentence in the range of fifteen to eighteen months, focusing on principles of deterrence and denunciation and the odiousness of this sort of criminality. Rehabilitation is important, but it is submitted to be secondary in the circumstances. Ms. Stephenson, while acknowledging the significance of C.P.’s actions, submits that his antecedents and positive presentence report justify a different balancing of sentencing principles, one that leads to a mid-to-upper reformatory length conditional sentence. C.P. would not endanger the community on such a sentence, and his rehabilitative potential justifies such an approach. A particularly restrictive conditional sentence, with a greater period of house arrest than might normally be imposed, could suitably address deterrence and denunciation.

III. THE OFFENCES

[9] It falls to me to determine a fit sentence in C.P.’s circumstances. In his case, like in all criminal sentence hearings, I take guidance from the principles set out in the Criminal Code of Canada. Section 718 of the Code instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society. Judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles contained in the Code. These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community, and specific victims in our community.

[10] Many of these principles are engaged in C.P.’s case. His crime is significant, and it is one that the law instructs me requires focus on deterrence and denunciation. [2] Deterrence relates to him specifically, as well as other members of society more generally. Regarding specific deterrence, for reasons I will review, I am satisfied that it is not as pressing a concern here as it is in many of the other cases referred to by counsel. I accept C.P.’s remorse, and I accept his psychotherapist’s view that he has made gains in counselling and would be unlikely to reoffend: “he grasped why what he did was problematic and she indicated that she would be shocked if he re-offended in this manner”.

[11] An additional consideration is the harm caused to S.S. by C.P.’s actions. His conduct was cruel and calculating, a profound intrusion into her personal privacy. Her impact statement has been filed on this sentencing. I am appreciative of her providing it. She describes lasting negative thoughts and feelings that have prompted depression, anxiety and panic attacks. She no longer feels safe anywhere – not online, in public, or even in her own home. She writes of social media being used against her as a weapon, and that she will never forget C.P.’s “malicious actions and all the mental suffering they brought upon me”. I find C.P.’s actions have caused significant harm to S.S. In the criminal context, quantifiable harm is not limited to physical injury. It includes psychological harm beyond merely trifling or transitory. That definition is easily met in this case.

[12] Ultimately, the fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed and the degree of responsibility of the person who committed it: see s. 718.1 of the Code. This means that, for the sentence I impose to be appropriate, it must be tailored to C.P.’s circumstances, and the circumstances of the offences that he has committed.

[13] In determining an appropriate sentence, it is helpful to identify any relevant aggravating or mitigating circumstances presently applicable. These circumstances would include features of C.P.’s background, features of the crimes he has committed, the timing of his guilty plea, and any other evidence I have received during this sentence hearing. It would also include any legal direction I should follow – whether found in the Criminal Code or provided by the higher courts – regarding aspects of this case that I must give significant consideration. For example, C.P. has pleaded guilty to criminal harassment. When the harassment offence was drafted into the Criminal Code in 1997, Parliament’s concern in enacting the offence was set out in a legislative preamble:

WHEREAS the Parliament of Canada wishes to strongly denounce criminal harassment in Canadian Society by strengthening the criminal law in this area, thereby providing further protection to the life, liberty and security of women and other victims of criminal harassment

[14] Three years later, in a case called Bates (2000), 146 CCC (3d) 321, the Court of Appeal wrote that “the number of recent cases continuing to reach this court emphasizes the extent of the problem of criminal harassment and the need for sentencing courts to respond to this type of offence in the most forceful and effective terms, sending the message of denunciation and general deterrence to the community, and specific deterrence to individual offenders”: see paras. 39-42.

[15] C.P. has pleaded guilty to three separate offences: criminal harassment, extortion and distributing an intimate image without consent. The course of conduct he engaged in involved the elements of all three of these offences, with the unifying theme being, as identified by S.S. in her statement, the weaponization of social media and private images against a young girl for his own personal and prurient gain. I have no difficulty classifying this as a grave offence.

IV. THE OFFENDER

[16] Up until this point in these reasons I have focused on the nature of the offences committed. I now turn my focus to C.P. the person, as identified in the presentence report.

[17] The report contains helpful information diligently assembled by Ms. Monika Anders, a probation officer. C.P. was twenty-two years old with no prior criminal record when he committed these offences. He is twenty-four now. He has significant family support and a full-time managerial job at a fast food restaurant. Both the police and probation services noted he was polite and respectful during their interactions with him.

[18] The presentence report notes that C.P. has engaged with a psychotherapist post-arrest, completing five sessions in 2020. The psychotherapist advises that she believes C.P. now grasps the seriousness of his conduct, and that she would be “shocked” if he re-offended. Their work together involved addressing respect for women and relationship boundaries. She describes that over the course of their sessions, C.P.’s understanding of the consequences of his actions matured significantly.

[19] C.P. told the probation officer that he accepts responsibility for his actions in this matter and advised that his motivation was revenge; to hurt S.S. in response to hurt that she had caused to others. He further advised that it was not his intention to follow through on his threats in March 2020. While I would like to believe him on this point, and to a degree am inclined to, on the totality of the evidence I simply do not know with any certainty what he would have done if the police had not arrested him on March 5.

V. LEGAL ANALYSIS

[20] There is a principle in criminal sentencing known as the parity principle – that is, a sentence should be similar to other sentences imposed on similar offenders for similar offences committed in similar circumstances. This principle is enumerated in s. 718.2(b) of the Code. The lawyers have provided me with a helpful review of other sentencing decisions in this area. While I have reviewed all these judgments, I will only expressly touch upon a few of them in these reasons.

[21] I would start, however, with a case that does not involve sentencing, but one that discusses the purpose behind Parliament’s recent creation of the s. 162.1 Code distribution offence. The Court of Appeal provided instructive language very recently, in Walsh, 2021 ONCA 43. While a split decision, all three members of the panel agreed on the purpose behind the implementation of s.162.1. At paragraph 63, Justice Gillese, writing for the majority, stated:

Section 162.1 is a relatively new offence. It came into effect as part of Bill c-13, Protecting Canadians from Online Crime, enacted in 2014 and proclaimed into force on March 9, 2015. The bill – part of the federal government’s initiative against cyber-bullying – was introduced when two young women tragically took their lives after intimate images of them had been shared online without their consent. These cases and others highlighted the growing trend to use technology as a tool of harassment and sexual exploitation, and the justice system’s inability to respond because no offence existed at that time which addressed that type of conduct.

[22] The minority opinion, written by Justice Miller, expressed agreement with the majority on this point at paragraph 164:

It is common ground that in enacting s. 162.1, Parliament intended to protect human dignity and privacy by prohibiting the transmission of intimate visual images. It was responding specifically to instances of great personal harm caused by persons who had uploaded or distributed intimate images of women and girls.

[23] I will now review some of the sentencing judgments I have been provided. I will start first with S.C.C., 2021 MBCA 1, a recent decision of the Manitoba Court of Appeal. In this case, a thirty-year-old offender pleaded guilty to posting two videos and an explicit image of his twenty-one-year-old girlfriend on a pornographic website. The videos depicted the two of them engaged in sexual intercourse, with the victim clearly visible. At the time of the offence, the offender had been prohibited by a bail order from having contact with the victim. He had a significant related criminal record and told a probation officer that he had been “motivated by spite” when he distributed the videos and had been thrilled to see how many people had viewed them. Unsurprisingly, the appellate court considered specific deterrence to be very much a live issue, in addition to general deterrence and denunciation. The court wrote, at paragraphs 33 through 35:

The offence of distribution of an intimate image without consent was enacted by Parliament in 2014 in order to address “the particularly vile and invasive form of cyberbullying involving the non-consensual distribution of intimate images” … As Abella J observed in A.B. (Litigation Guardian of) v. Bragg Communications Inc., cyberbullying is psychologically toxic and “can be particularly harmful because the content can be spread widely, quickly — and anonymously”

Distribution of an intimate image without consent is a sexual offence as well as a privacy offence punishable by a maximum term of imprisonment of five years upon indictable proceedings. Deterrence and denunciation are the primary sentencing objectives. Therefore, the focus on sentencing for this offence is more on the offence committed than on the circumstances of the accused.

The judge appropriately recognised the need to prioritise deterrence and denunciation. However, in my view, the sentence she imposed does not reflect the “the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct (citations omitted)

[24] Ultimately, the Court determined that the fourteen-month sentence imposed by the trial court was unfit and increased it to two years less one day. The Court additionally stated its view that a “penitentiary sentence” should have been imposed, but they were disinclined in the circumstances to exceed the sentence requested by the Crown.

[25] While the legal principles identified in S.C.C. are instructive, I observe that there are few parallels between C.P.’s case and S.C.C., beyond the fact that both involve an act of distribution. C.P. is a first offender, S.C.C. was not. C.P.’s conduct carried over several months, S.C.C.’s was of shorter duration. C.P.’s conduct contained an extortive element that was absent in S.C.C. The videos and image distributed by S.C.C. were more aggravating, as they involved sexual activity and an identifiable victim. Finally, and most importantly, S.C.C. presented as a poster child for specific deterrence: his comments about posting the material out of spite – while on bail – and being “thrilled” by the online response demanded a significant judicial response. As I have already noted, specific deterrence is a lesser concern in C.P.’s circumstance.

[26] A recent Ontario case is J.B. 2018 ONSC 4726, a decision of the Superior Court of Justice. Factually, this case involved an offender pleading guilty to distributing an intimate image in circumstances where, following a breakup, he created a fake Facebook account in his ex-partner’s name and invited her friends and family to access it. Several did, no doubt believing the invitation was genuine. What they saw on the doctored profile were pictures of the victim and her nine-year-old son, along with five intimate images. These images were sexually graphic, and in at least one of them the victim was clearly identifiable.

[27] The offender in J.B. had a criminal record that included two prior convictions for criminal harassment. His conduct had a significant negative impact on the victim. At the time of sentencing, however, J.B. was in a new relationship and working. Justice Leach, in thorough reasons, ultimately concluded that the principles of sentencing could be addressed in that case by a conditional sentence, which would allow the offender to maintain the community stability he had achieved.

[28] There are both similarities and differences between J.B. and C.P.’s cases. Both distributed intimate images out of anger. The victim in J.B. was visually identifiable in the material, while S.S. was only identifiable through her Instagram username, which C.P. associated with the image he posted. J.B. had a prior criminal record, while C.P. does not. However, J.B.’s case did not have an extortive component like the present case.

[29] J.A.H. 2021 SKQB 9, is a decision of the Saskatchewan Queen’s Bench involving a thirty-eight-year-old first offender who pleaded guilty to distribution. Upset at his former intimate partner, he sent a string of intimate images, all at once, to her and her parents. In these images his ex-partner was both naked and identifiable. He also sent sexualized communications that she had participated in. Justice Zerr noted that the offender’s actions were impulsive and rash and committed while he had been intoxicated. Ultimately, a conditional sentence was imposed. Again, unlike the present case, there was no extortive conduct involved.

[30] It goes without saying that no precedent perfectly matches a set of facts. That is not the point of the exercise. As I have sought to identify, C.P.’s case contains both similarities and differences with these other cases. What is important, however, is to take stock of the legal principles identified in these other cases, and how those judges have applied them to their facts. Conditional sentences have been imposed in at least three cases involving the distribution of intimate images. In one of those cases (J.B.), the community-based sentence was imposed notwithstanding a prior related criminal record. I also accept that general deterrence and denunciation are the primary sentencing considerations in this area (S.C.C.), and that a need for specific deterrence can significantly escalate the appropriate range for a custodial sentence.

[31] What these decisions did not address, at least not expressly, was a set of facts that involved the distribution of intimate images as part of an extortion scheme. However, a case with similar facts was cited within several of those decisions. It is McFarlane, 2018 MBCA 48. In that case, a youthful offender (age 19) with no prior record surreptitiously recorded his sister’s friend undressing in the bathroom and showering. He kept the video to himself for approximately five years before embarking on a course of action that the appellate court termed “sextortion”. The offender created multiple fake email accounts and sent the victim image stills from the recorded video. The decision describes the emails as “menacing”, as the victim was told that she had to provide additional intimate images or else the images would be published on the internet.

[32] The extortive emails were sent to the victim and her sister over a period of months. The police were contacted and did investigate, but had difficulty discovering the identity of the sender. Despite multiple requests over a considerable time period, the victim did not succumb to the extortion. Eventually, the offender was identified and arrested. He advised that he never shared or published any of the images, other than in these emails.

[33] The offender’s conduct had an enormously negative impact on the victim. She lived in constant fear of physical harm. She was physically ill, her grades suffered, and she contemplated suicide.

[34] The offender was twenty-six years old at the time of sentencing. He had a positive home life and was remorseful for his conduct. He had pleaded guilty.

[35] The Crown sought a jail sentence in the range of fifteen to eighteen months, the defence a non-custodial sentence. The trial court imposed eighteen months and that sentence was upheld in the Court of Appeal, but not without the Court noting that a two-year sentence was likely more appropriate.

[36] Having reviewed these authorities, I note the following particularly important aspects of C.P.’s case:

1. On the mitigating side of the ledger, he has pleaded guilty and spared the system and S.S. a trial. The Crown’s case on identity was circumstantial; I accept this was a meaningful plea for a host of reasons. Had C.P. put the Crown to its burden of proof, S.S. would potentially have had to testify twice, given the fact that extortion is a straight indictable matter that includes the possibility of a preliminary inquiry. Additionally, I accept that the plea demonstrates C.P.’s remorse. I accept his statement to the court that he deeply regrets what he did and is interested in continuing his rehabilitative path. Finally, a third point about this guilty plea. It is during the Covid-19 pandemic, when court time is in very short supply. Given the significant backlog in the criminal courts, I accept that this plea has additional mitigation value.

2. He has no prior criminal record.

3. He is also a youthful first offender. I asked counsel during submissions whether, and to what degree, the Priest principle applies in this case. This is a legal principle drawn out of a decision called Priest (1996), 110 CCC (3d) 289 (Ont. C.A.) where the Court explained that, for non-violent offences, the sentencing focus on youthful first offenders should be on specific deterrence and rehabilitation. Having considered the matter, I am satisfied that this principle applies, but with much reduced force. While these offences were not physically violent, they were violent in a different way, in the sense that they were psychologically damaging to S.S. I accept that general deterrence and denunciation are properly the primary sentencing considerations in this case.

4. C.P. has engaged in counselling and is amenable to more. I accept he is a good candidate for future rehabilitation at the end of his sentence.

5. On the aggravating side, this conduct occurred over a period of months – it was not a short impulsive act, like the J.A.H. and J.B. cases – and had a significantly negative impact on S.S.

6. As S.S. aptly described in her impact statement, C.P. weaponized social media to both extort and harass her. His actions are a more modern form of harassment then existed in 1997, when the criminal harassment Code provision was drafted. The internet offers information-sharing and anonymity: C.P. took advantage of both to degrade and demean a young girl for petty revenge. Again, I adopt S.S.’s terminology in describing C.P.’s initial anonymous messages to her – sinister. This was sinister behaviour. Her age at the time (17) is a statutorily aggravating feature as well: see s.718.2(a)(ii.1) of the Code.

7. C.P.’s conduct escalated when he made the decision to share the image on the ‘4chan’ file sharing website. While S.S.’s face was not visible in the intimate image, her Instagram username was attached to the image. Several strangers saw that posting and took the opportunity to seek her out on Instagram. Their messages arrived in her private space on her digital device. I cannot imagine they were friendly messages to receive.

8. Finally, the most aggravated form of his conduct occurred in March, when he threatened her if she did not provide additional intimate images or videos. One does not have to look far to see the potential consequences of this type of activity: it is the suicide death of Amanda Todd in British Columbia, following a pattern of online harassment and extortion that helped prompt Parliament to enact the s.162.1 Code distribution offence: see House of Commons Debates, 41-2, vol. 147, No.25 (27 November 2013). I make this reference not to compare C.P. to the offender in that case – they are different cases, and different facts – only to underline the reason why the combination of harassment, distribution and extortion is so significant; it is due to the potential for grave consequences that have historically followed in similar circumstances.

[37] In conclusion, while a conditional sentence is no longer statutorily excluded [3] as a result of the Court of Appeal’s decision in Sharma 2020 ONCA 478, I conclude that on these aggravated facts, a conditional sentence – even one with a significant component of house arrest – would not be consistent with the fundamental purpose and principles of sentencing. General deterrence and denunciation are particularly pressing here, given C.P.’s constellation of charges and facts. His rehabilitative potential and my diminished concern regarding specific deterrence do not outweigh the need for real jail to reflect society’s abhorrence for sustained, extortive conduct against women – here, a seventeen year old girl – that involves using an intimate image as a cudgel to make her do as he commanded. Despite Ms. Stephenson’s excellent submissions, I conclude that a meaningful jail sentence is required to denounce C.P.’s conduct and deter others from engaging in similarly sinister behaviour. Were we not in the pandemic, I would have imposed a sentence in the range suggested by Ms. Wollaston. However, in my view C.P.’s guilty plea is deserving of greater mitigation than it would normally receive in non-pandemic times, for reasons stated earlier. Ultimately, I impose a total sentence of twelve months for this conduct.

VI. DISPOSITION

[38] For the extortion count, I impose a twelve-month jail sentence. In doing so, I consider the harassment and image distribution as aggravating features. As a result, I impose four months concurrent for the distribute intimate image count, and 3 months concurrent for the criminal harassment. I additionally impose two years of probation, on terms I will review with counsel, as well as DNA and a s. 109 Code weapons prohibition.

June 25, 2021 Justice Scott Latimer

Footnotes:

[1] I have initialized the parties to comply with an existing section 486.4(2.1) Code non-identification order.

[2] Bates (2000), 146 CCC (3d) 321 (Ont. C.A.), at paras. 39-42; S.C.C., 2021 MBCA 1, at para. 34.

[3] The Crown has proceeded summarily on the criminal harassment and distribute intimate image counts, but the extortion charge is straight indictable and has a maximum sentence of life imprisonment.