W AR NI N G

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162,

163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273,

279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3,

346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph

(i) if it occurred on or after that day; or

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

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

CITATION: R. v. Weedon, 2023 ONCJ 317

DATE: 2023-07-17

COURT FILE No.: 22-14721

B E T W E E N :

HIS MAJESTY THE KING

— AND —

MICHAEL WEEDON

Before Justice R. Wadden

Reasons for Sentence released on Monday, July 17, 2023

Julian Daller ………………………………………………………….counsel for the Crown

Mark Ertel …………………………………………………………..counsel for the accused

R. WADDEN J.:

[1] Michael Weedon is before me for sentencing, having been found guilty after trial of counts of Making Available Intimate Images without Consent, contrary to s. 162.1 of the Criminal Code, Mischief by Altering Computer Passwords, contrary to s. 430(5) of the Code, and Criminal Harassment, contrary to s. 264 of the Code.

[2] The facts are that on September 25, 2021, Mr. Weedon, who had been sending harassing messages to his ex-girlfriend, Ms. N.P., over the previous weeks, accessed her SnapChat account, changed her passwords and posted nude images and videos of her to her SnapChat, all the while communicating with her by text in a harassing manner.

[3] My finding at trial was that Mr. Weedon hacked into Ms. P.’s Snapchat account and made available in the public area of SnapChat her own nude photos and videos that she had privately kept. The posting of the images was done in the context of Mr. Weedon sending texts to Ms. P. that included him saying: “Bring it on you fucking cheating whore”, and “U fucking slut” and “cheating again” and “Ur done fun u ur job is don ur life is done”. While this text exchange was going on Ms. P. discovered that nude pictures and videos of her were being posted to the public portion of her Snapchat account. Although she acted quickly to stop the posting, the pictures and videos were available for some time that afternoon, and Ms. P. was told by friends that they had seen them.

POSITIONS OF THE PARTIES

[4] Both Crown and defence are in agreement that a sentence of imprisonment is necessary for these offences, on these facts. The Crown seeks a sentence of two years, plus probation. The defence suggests a sentence of 9-12 months, plus probation, is appropriate.

PRINCIPLES OF SENTENCING

[5] The principles of sentencing are set out in ss. 718 to 718.2 of the Criminal Code. Section718 states that “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 …” The section goes on to state that specific objectives of sentencing are to “denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; … to deter the offender and other persons from committing offences; … [and] to promote a sense of responsibility in offenders.” An overarching principle of sentencing, as stated in s. 718.1 of the Code, is that “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Section718.2 states that, among other things, commission of the offence against an intimate partner and evidence that the offence had a significant impact on the victim are aggravating factors. I also have to take into account principles of restraint and keep in mind that this is a first conviction and first jail sentence for Mr. Weedon.

IMPACT ON THE VICTIM

[6] One of the factors to consider on sentence is the impact on the victim of the offence. Ms. P. read a Victim Impact Statement in which she detailed the fear, anxiety and depression she has suffered as a result of these offences. She stated she had constant worry about her safety and the safety of those closest to her and has suffered financial and career consequences. In her trial testimony, Ms. P. described how she had just begun her professional career, and she spoke of the immediate impact of the posting of the images, which she learned of while she was at work. She testified how it caused her to physically collapse at work and how she suffered the humiliation of having the photos made visible to her friend group and professional contacts on Snapchat.

BACKGROUND OF MR. WEEDON

[7] In determining an appropriate sentence, I must consider, among other things, the background of Mr. Weedon. I had the advantage of a thorough Pre-Sentence Report prepared for this matter.

[8] Mr. Weedon is a 34-year-old with no criminal record. He was born and raised in suburban Ottawa and had a stable home life. He completed his high school education and a college diploma. He has a good employment record and is well regarded by his supervisor. He currently works in Montreal during the week and lives at his parents’ residence on weekends. Mr. Weedon self-identifies as Metis, although beyond having a status card he says that he has little knowledge of the background and culture.

[9] In the Pre-Sentence Report, Mr. Weedon admitted to significant drug use, stating that during his relationship with Ms. P. they would repeatedly be on cocaine binges. Ms. P. corroborated that drug consumption was a significant part of their relationship, stating that Mr. Weedon’s consumption would lead to outbursts of rage and would intensify his jealousy issues. The author of the Pre-Sentence Report notes that Mr. Weedon’s family was unaware of his drug use.

[10] In the part of the Pre-Sentence Report dealing with these offences, Mr. Weedon continued to deny his involvement, as he did in his testimony at trial. To quote the Pre- Sentence Report, “He did not express remorse for his actions, and instead stated he felt “happy and at peace” when looking back at the incident. He advised he “doesn’t regret any decisions he’s made” although did admit he should have ended his relationship with the victim sooner. The subject accepted no responsibility for the index offences and the negative impact they have had on the victim. He indicated he “hopes this has had a positive impact on [Ms. P.’s] life as well.”

[11] I can understand Mr. Weedon not departing from the position of denial he took at trial, and the lack of remorse is not an aggravating factor on sentence. However, even though Mr. Weedon continues to deny posting the images, it is an objective fact the images were posted publicly to Ms. P.’s SnapChat. In that context, the latter statement by him strikes me as oddly insensitive to the harm that Ms. P. suffered. Furthermore, by his own admission at trial, Mr. Weedon was sending abusive messages to Ms. P. in this time frame. It is striking that he seems to have no insight into the harm of this behavior on Ms. P.

CASE LAW

[12] I have to consider the relevant caselaw for similar offences. There are limited authorities available but it is clear that, as the parties before me agree, the appropriate range for these offences is a reformatory period of incarceration.

[13] In R v A.C. 2017 ONCJ 317, Mr. Justice Rahman provided a thorough analysis of the law on this offence, which at that time had been newly enacted. He stated, at para. 56:

In my view, only a sentence of imprisonment would be proportionate to the gravity of this offence and would properly give effect to general deterrence and denunciation. In fact, I find it difficult to believe that anything other than a sentence of imprisonment could properly give effect to the deterrence and denunciation in circumstances where intimate images are disseminated over the internet and where the victim is identifiable.

[14] In that case, His Honour suggested that on the facts before him a sentence of 9 – 12 months would be appropriate after trial.

[15] In R. v. McFarlane 2018 MBCA 48, the court imposed a total sentence of 18 months on a sextortion case that involved very limited distribution of images – just sent to the complainant and her sister, not published online. In that case, the bulk of the sentence was allocated to the extortion charge, with the distribution of an intimate image count receiving a six-month sentence.

[16] In R. v J.S. 2018 ONCJ 82, Justice Ghosh imposed a sentence of 18 months on a first-time offender who pled guilty to posting intimate recordings of an ex-girlfriend online, which he had obtained from a hidden camera. In that case the posting of the photos had gone on for a long period of time, had involved significant deception of the complainant and had been aggravated by the offender maliciously advertising the complainant as a prostitute.

[17] In R v M.E. [2023] O.J. No. 2268 (OCJ) the offender was sentenced for posting to pornographic websites videos of his ex-girlfriend engaged in sex. In that case, the offender had also committed at least 15 sexual assaults against the complainant. Of the total sentence of six years, 18 months was allocated to the count of distribution of intimate images.

[18] It is clear that the range of sentence for vengefully posting nude images online of an identifiable complainant is in the mid to upper reformatory range. Principles of denunciation and deterrence are paramount. A clear message must be sent that society will not tolerate abuse of an intimate partner in this manner. It is a serious form of psychological violence causing almost incalculable long-term harm to the victim. In the modern world, almost any man in a dating relationship is capable to doing this act. As some of the cases make clear, there are entire websites devoted to such “revenge porn”. Principles of general deterrence require a significant sentence that would deter others in a similar situation who would be tempted to commit this crime. Mr. Weedon, specifically, must be deterred by a sentence that brings home to him the seriousness of the offence and the terrible impact it has had on Ms. P.

[19] In determining the appropriate sentence for Mr. Weedon, I have to consider the facts of his offences in comparison to the reported cases. Mr. Weedon’s offence of hacking the account and posting the photos and video was of one instance where the pictures were posted for a relatively short period. In contrast to some of the cited cases, there were no further attempts to post on multiple websites. The harm did not go on for months or even days. Mr. Weedon did not hide what he had done from Ms. P. – on the contrary he immediately informed her by taunting her with the act. Mr. Weedon did not add to the harm by posting insulting or derogatory commentary to the pictures. Although there was obviously planning involved in hacking the account, the act of posting itself could be regarded as impulsive.

[20] However, the harm caused is severe. The pictures were posted to Ms. P.’s Snapchat account, available to her hundreds of contacts. Her face and her nude body were clearly visible, and the images were available to those who would have known her identity. The images were highlighted on her Snapchat, meant to draw attention. It is clear that the posting was targeted to cause humiliation to Ms. P. as the photos and video were made visible to those who knew her. Although Ms. P. acted quickly to take the images down, they were available to be saved by anyone who had access to them in the time they were up.

[21] The facts of this case display, on the part of Mr. Weedon, controlling, vengeful behavior designed to humiliate Ms. P., his former intimate partner. Having said that, I acknowledge that the facts do not bring it to the highest end of the range for this offence. I also take into account the mitigating factors, including the lack of a criminal record and the family and community support available to Mr. Weedon. As this is a first jail sentence for Mr. Weedon, I must apply principles of restraint.

[22] Taking all of that into account, the lowest possible sentence I can impose that achieves all of the sentencing objectives is one of 12 months jail.

[23] There will be a lengthy term of probation to follow. In my view, Mr. Weedon lacks insight into the harm his behavior has caused. Even on Mr. Weedon’s own admissions, he was possessive and controlling of Ms. P., and sent abusive and derogatory messages to her. This behavior needs to be addressed through assessment, counselling and treatment. Furthermore, a lengthy term of probation can provide Ms. P. with ongoing protection from Mr. Weedon.

SENTENCE

[24] The most serious offence before me is Count 3, of making available images contrary to s. 162.1 of the Code. The offence of altering data, although separate, was a means to achieve the goal of posting images and will receive a concurrent term. Similarly, the offence of criminal harassment involved facts that led up to and culminated with the posting of the images. In the circumstances of this case, it is also worthy of a concurrent sentence.

[25] The sentence to be imposed will be:

Count 3, s. 162.1: 12 months imprisonment followed by 3 years probation

Count 2, s. 430(5): 6 months concurrent, followed by 3 years probation

Count 1, s. 264: 6 months concurrent, followed by 3 years probation

[26] The terms of probation will include that Mr. Weedon is to report to the probation officer within two working days of release from custody and thereafter as directed, for the first 18 months of this order. Mr. Weedon is to live at an address approved of by the probation officer and not change that address without the prior approval of the probation officer. Mr. Weedon is to attend for any assessment, counselling or treatment as directed, including but not limited to psychological counselling, sexual behaviors, substance abuse and partner assault programming, and sign any release of information forms required. Upon release from custody, Mr. Weedon is to maintain employment or schooling. For the entire three years of the order, Mr. Weedon is not to have any contact by any means with Ms. P. or be within 500 metres of any place she is, including her home or workplace. Mr. Weedon is not to be in possession of any intimate images of Ms. P. and is to immediately destroy any such images in his possession. Mr. Weedon is not to publish, distribute, transmit, sell, make available or advertise any sexually explicit material or intimate material on the internet, of any person.

[27] There will be an order under s. 162.2 that Mr. Weedon is prohibited from accessing the internet while in custody. There will be an order that Mr. Weedon is prohibited from contacting Ms. P. while in custody, pursuant to s. 743.21. There will be an order that a sample of DNA be taken, as a secondary designated offence. There will be a 10-year prohibition on firearms pursuant to s. 109 of the Code. For the victim surcharge, I will allow two years to pay.

Released: July 17, 2023

Signed: Justice Robert Wadden