Court File and Parties

Date: May 7, 2024 Information No.: 21 – 011254 Ontario Court of Justice (at Brampton, Ontario)

Between: Her Majesty The Queen

• and - S.F.

An order has been made under s. 486.5 of the Criminal Code directing that any information that could identify the complainant, M.G., shall not be published in any document or broadcast or transmitted in any way.

Reasons for Sentence

Counsel: Mr. T. McCann, for the Crown Mr. V. Houvardas, for S.F.

NADEL, J.:

Introduction

[1] After a summary trial, I found S.F. guilty of distributing intimate imagery of his girlfriend, M.G., contrary to s. 162.1(1) of the Code.

[2] He uploaded two recordings of them engaging in sexual intercourse onto his Pornhub account. While his girlfriend consented to the recordings being made, she did not consent to them being distributed. [2]

[3] Mr. F. uploaded the two recordings some time before March 26, 2020. That was the date when Ms. G. first became aware of what he had done.

How the Distribution Came to Light

[4] A male friend of Ms. G. saw the videos on Pornhub in March of 2020. He believed that he recognized Ms. G. in them. He wasn’t certain. So, he asked a mutual female friend of Ms. G. if she believed that it was Ms. G. in the videos. She did.

[5] That female friend then contacted another male friend of Ms. G. to ask for his opinion. He, too, believed that the videos depicted Ms. G. engaged in sexual intercourse.

[6] In the result, all three friends FaceTimed Ms. G. to inform her of the presence of these two recordings on Pornhub.

S.F.’s Response

[7] Ms. G. viewed the videos and recognized herself and the room where the videos had been recorded. While the male in the recording is not identified or recognizable, per se, Ms. G. knew who he was and identified the male in the recordings as the defendant.

[8] She complained to him about what he had done. He apologized and said that he would try to remedy his actions. She, too, approached Pornhub and received a response from that site stating that the content uploaded by the defendant was removed.

[9] Unfortunately, it had already been downloaded by someone and then reloaded onto the site. Hence, a copy of these videos remains available to be circulated.

[10] On March 27, 2020, Mr. F. wrote Ms. G. a lengthy note that included the following statements and admissions:

“I know that this is a weird and difficult time. I know that I shattered your trust in me. I know that I violated your privacy and made your relationship with your friends changed forever. … I know that I’ve destroyed your perception of me, that this will never be forgotten. I know that what I did was, without a doubt, very wrong and very selfish and that it’s very unfair to you. I know that today has been the worst day of my life – I can’t eat, I can’t sleep, I can’t go 10 minutes without tearing up. However, I know that what I’m feeling is nothing compared to what you must be feeling. I incited all of this, so it is only right that I must suffer the consequence of my own choices.”

[11] Despite the defendant’s breach of trust Ms. G. continued on in a relationship with him for several months. She ascribes her decision to do so as being substantially influenced by the strictures and limitations of the Covid pandemic.

[12] After Ms. G. ended her relationship with the defendant, she arranged to meet with him and over the course of more than an hour she engaged him in conversation that she secretly recorded. She attempted to prompt him into making admissions that she could document by her secret recording. The recorded explanation that he offered for his actions was “just stupidity and selfishness”.

Sentencing Exhibits

[13] All of the following were exhibited during the sentencing hearing:

1. M.G.’s Victim Impact Statement, which she read into the record.
2. S.F.’s Pre-Sentence Report.
3. A letter of recommendation dated December, 2023, by S.B., BScPT, MBA, in support of Mr. F.’s application for admission to a master’s degree programme in Physical Therapy and Rehabilitation Sciences.
4. A letter of recommendation by R.P., Registered Physiotherapist, in support or Mr. F.’s application to a master’s degree programme in Physical Therapy and Rehabilitation Sciences.
5. Documentation confirming that Mr. F. has completed two consultations and 12 psychotherapy sessions at two separate treatment programmes, along with the costs that he had incurred for these services.
6. A compilation of the many volunteer hours of service worked by Mr. F..
7. A copy of Mr. F.’s Bachelor of Kinesiology degree, with honours, from the University of Toronto, dated June 8, 2020, together with a transcript of his academic record.
8. Miscellaneous accreditations and workshops completed by Mr. F..

The Crown’s Sentencing Submission

[14] Mr. McCann submitted that a fit sentence would be a sentence of five months followed by probation for 18 months on appropriate protective and rehabilitory terms. In support of this position Mr. McCann stressed the traumatic and continuing effects this offence has had and continues to have on Ms. G. In addition, he relied upon the cases footnoted as offering precedential guidance on the principles that must be voiced by the sentence to be imposed. [3]

The Defence’s Sentencing Submission

[15] Relying on the cases footnoted, and stressing Mr. F.’s excellent antecedents and prospects for rehabilitation, Mr. Houvardas contended that a conditional discharge on a period of probation would be a fit sentence in this case. [4] Mr. Houvardas noted that Mr. F. had immediately apologized to Ms. G., as quoted above at paragraph [16]. That is obviously true. At trial, however, Mr. Houvardas suggested to Ms. G. that that apology was not referrable to the defendant’s acts of distribution.

S.F.’s Biography & Prospects for Rehabilitation

[17] Mr. F. was born on […], 1998. He is about to turn 26. He distributed the two intimate recordings when he was still 21 years old.

[18] He has no prior criminal record and is a university graduate in kinesiology. He is currently working as a physiotherapist in training. His childhood is unremarkable other than the fact that his parents divorced amicably, and he became part of a blended family.

[19] The sentencing exhibits filed by the defence demonstrate that he is a talented and productive individual. But for the potentially skewing effects of a conviction and any attendant carceral sentence that I impose upon him, his rehabilitation is assured.

[20] The summary assessment by Ms. Leana Esposito, the pre-sentence reporter, accurately and fairly captures him and his situation. That summary includes the following comments:

[He] admits to the allegation against him and accepts responsibility for his actions. He reported that the offence was an appalling lack of judgment in part due to his immaturity at the time. [He] reports having made great strides since [then] in his personal growth and maturity through therapy and self reflection. …

[He] described having a positive upbringing … and collateral sources have described an individual with strong ties to the community, family and employment….

[He] is passionate about and dedicated to his profession and is currently preparing applications for his master’s degree in physiotherapy. …

[He] maintains full time employment splitting his time between two physiotherapy clinics and spend his leisure time at the gym, volunteering in the community, playing basketball and spending time with friend and family. … …[he] seems to have gained some insight on his offending behaviour and appears to have a degree of empathy for the impact his actions have had on [Ms. G.]. …

M.G.’s Victim Impact Statement

[21] Ms. G. was and remains severely affected by Mr. F.’s actions. Her Victim Impact Statement was extensive. It included, inter alia, a discussion of the emotional and physical toll that she has suffered and that she continues to suffer. Mr. F.’s violation of her trust impacted her privacy, her dignity, and her sense of security.

[22] She stressed the negative effect that the offence has had on her friendships with the people who brought the publication of the videos to her attention. She described feeling mortified that they had seen the videos and she is continually fearful that others may too.

[23] She described suffering from feelings of overwhelming shame and humiliation as well as feelings of anxiety and distrust. She remains constantly worried that these videos may be seen by her work colleagues or her employers and cause her to lose employment.

Mitigating Factors

[24] Mr. F. is in his mid-20’s. He is highly educated and has no prior criminal record. He apologized and expressed remorse immediately and he tried to have the videos withdrawn from the site that he had uploaded them to, although he was unsuccessful in that effort.

[25] Significantly, the videos were created lawfully. Even more significantly, his motivation in distributing them was not vindictive or part of any extortionary scheme.

[26] His prospects for rehabilitation are assured, subject to the effect that my sentence may have on his future career path. This act aside, he has been an exemplary and productive citizen.

Aggravating Factors

[27] The offence was an abuse of his intimate partner. This is an aggravating feature of this crime. (See s. 718.2 (a) (ii) of the Criminal Code.)

[28] The offence was an abuse of the trust reposed in him by Ms. G. to keep these videos private. While not an abuse of trust in a traditional sense s. 718.2 (a) (ii.1) of the Criminal Code applies.

[29] Based upon the Victim Impact Statement filed by Ms. G., the offence has had a significant emotional and social impact on her. (See s. 718.2 (a) (iii.1) of the Criminal Code.)

[30] In addition, s. 718.201 of the Criminal Code arguably also applies since the abuse connoted by that section is not limited to physical abuse. Moreover, the videos do not identify Mr. F. by name or by other easily identifiable facts. That he took care not to be identified while failing to accord the same protection to Ms. G. demonstrates the applicability of this provision.

Some of the Facts and Factors to Consider on Sentence

[31] In arriving at a fit sentence I have considered a variety of factors. For example, it is aggravating that Mr. F. uploaded two videos showing explicit sexual activity. On the other hand, he did not do so for vengeful or extortive reasons. In addition, he did repeat or continue his crime thereafter.

[32] Importantly, he did not “tag” or explicitly identify his victim by name. His motivation for this distribution was, as he candidly admitted to Ms. G., stupidity, and selfishness. Indeed, he apologized and tried to remedy his crime, albeit unsuccessfully. Ms. G. forgave him, at least for a time.

[33] One further matter that bears comment is that Ms. G. is not clearly and easily identifiable in these recordings. The three friends who knew her were initially uncertain about whether she was the female in the recordings.

The Defence Request for a Conditional Discharge

[34] Section 730(1) of the Criminal Code provides that:

Where an accused … pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

[35] A conditional discharge would be in Mr. F.’s best interests. The imposition of a criminal conviction may have some debilitating effect on his future life. Section 162.1(1) has no minimum sentence, and its maximum sentence is less than imprisonment for fourteen years.

[36] The public interest criterion required to be met was discussed by Justice T. Gouge in R. v. Atleo, [2014] B.C.J. No. 310 (BCPC). He noted that before a discharge can be granted the sentencing court must “enquire whether, and if so how, a grant of a discharge might be injurious to the public interest.”

[37] “Public interest” is not defined in the Code. At paragraph [35] Justice Gouge concluded that “the factors which Parliament intended judges to consider in determining whether a discharge would not be contrary to the public interest must be those identified as the objectives of sentencing” in the Code:

…“in any individual case, a discharge would not be contrary to the public interest unless it would materially inhibit the achievement of one or more of those objectives. Only in that way can a judge adjudicate the question by reference to the public interest as defined by Parliament.”

Fundamental Purpose and Principles of Sentencing [5]

[38] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[39] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[40] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

[41] In R. v. Hamilton, 2004 5549 (ON CA), [2004] O.J. No. 3252 (C.A.) at [90] and [91], Doherty, J.A. said that:

[90] The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence. …

[91] The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

[42] While proportionality is the fundamental principle to be expressed in the imposition of a sentence that principle is informed by the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. In addition, it is informed by the aggravating and mitigating factors in the particular case that I have identified.

[43] Significantly, I must specifically consider section 718.2(d) of the Criminal Code which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances". Equally, I must also consider the impact of section 718.2(e) of the Criminal Code which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

[44] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen, 1999 679 (SCC), [1999] S.C.J. No. 19, at paragraph [36]. It explained that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

[45] The Supreme Court also noted at paragraphs [43] and [48] that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. A sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender.

Imposition of Sentence

[46] In applying these principles, I have considered the facts underlying the offences, the impact on the victim, the background of Mr. F. and his prospects for rehabilitation.

[47] Mr. McCann urged the sentence imposed by Justice Rahman in R. v. A.C., 2017 ONCJ 317 as being fit; viz.: five months of actual jail. Respectfully, that case is markedly different and readily distinguishable from Mr. F.’s situation. The facts there are much more aggravated and that offender’s past and prospects much less positive than Mr. F.’s.

[48] Mr. Houvardas urged the sentence imposed by Justice Harris in R. v. A.C., 2017 ONCJ 129 (OCJ) as being fit; viz.: a conditional discharge. Respectfully, that case too is readily distinguishable. Inter alia, a major mitigating circumstance that was present there and that is absent here is a guilty plea.

[49] I acknowledge and accept that:

• discharges are not limited to technical or trivial violations;
• that it is not necessary to enter a conviction against Mr. F. in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions; and,
• while the public interest in the deterrence of others must be given due weight, it does not preclude the judicious use of the discharge provisions. [6]

[50] In addition, I have read and considered the précis of comments made by Justice Casey Hill as quoted by Justice Harris in R. v. A.C., 2017 ONCJ 129 (OCJ) that:

Discharges are not restricted to trivial matters: Regina v. Vincente (1975), 18 Crim. L.Q. 292 (Ont. C.A.). Where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction: Regina v. Taylor (1975), 1975 1447 (ON CA), 24 C.C.C. (2d) 551 (Ont. C.A.), at 552. Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration: Regina v. Myers (1978), 1977 1959 (ON CA) , 37 C.C.C. (2d) 182 (Ont. C.A.) at pp. 184-5; Regina v. Culley (1977), 1977 1965 (ON CA), 36 C.C.C. (2d) 433 (Ont. C.A.), at p. 435 per. A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge: Regina v. Cheung and Chow (1976), 19 Crim. L.Q. 281 (Ont. C.A.).

[51] The imposition of a sentence is an individualized exercise. Justice K. L. Campbell, at paragraph [46] of R. v. Hatimy, 2014 ONSC 1586, [2014] O.J. No. 1154 (SCO), said that there are conflicting sentencing principles that need to be balanced and reconciled.

[52] In my view, any sentence of incarceration for this offence committed in these circumstances by this offender, including a conditional sentence of imprisonment, would be excessive and unfit.

[53] On the other hand, a conditional discharge for this offence committed in these circumstances by this offender, after a trial, would also be unfit, given the fundamental purpose and principles of sentencing. It would be too lenient and contrary to the public interest, in the absence of the mitigating effect of a guilty plea.

[54] The cases cited by the parties hold that the primary sentencing principles to be voiced in a sentence for this offence are denunciation and deterrence. Additionally, as Mr. F. is a first offender, I must consider the direction from the Ontario Court of Appeal found at paragraph [4] of R. v. Stein, 1974 1615 (ON CA), [1974] O.J. No. 93 (C.A.) that:

… before imposing a custodial sentence upon a first offender the sentencing Court should explore the other dispositions which are open to him and only impose a custodial sentence where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate. In our view this offence does not fall within the category of offences where a custodial sentence is the only appropriate sentence to be imposed upon a first offender, nor are there other circumstances which require the imposition of a custodial sentence.

[55] The Court confirmed and renewed that direction in R. v. Priest, 1996 1381 (ON CA), [1996] O.J. No. 3369 (C.A.):

17 The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation. In R. v. Stein (1974), 1974 1615 (ON CA), 15 C.C.C. (2d) 376 (Ont. C.A.) at page 377, Martin J.A. made it clear that in the case of a first offender, the court should explore all other dispositions before imposing a custodial sentence:

… before imposing a custodial sentence upon a first offender the sentencing Court should explore the other dispositions which are open to him and only impose a custodial sentence where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate. In our view, this offence does not fall within the category of offences where a custodial sentence is the only appropriate sentence to be imposed upon a first offender, nor are there other circumstances which require the imposition of a custodial sentence. [Emphasis added]

18 As the Stein case shows, it has been an important principle of sentencing in this province that the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances. This principle implies that trial judges consider community-based dispositions first and impose more serious forms of punishment only when necessary. These principles have now been codified in the recently proclaimed sections 718 and 718.2 of the Criminal Code. Section 718 (c) instructs that separation of offenders from society is an appropriate objective of sentencing "where necessary". Section 718.2 (d) directs that an offender should not be deprived of liberty "if less restrictive sanctions may be appropriate in the circumstances".

19 The principle embodied in now s. 718.2(e) was of particular significance in this case. It provides that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders". …

20 The duty to explore other dispositions for a first offender before imposing a custodial sentence is not an empty formalism which can be avoided merely by invoking the objective of general deterrence. It should be clear from the record of the proceedings, preferably in the trial judge's reasons, why the circumstances of this particular case require that this first offender must receive a sentence of imprisonment. The trial judge had no material before him from which he could possibly have made this determination. His reasons are barren of any lawful justification for such a radical departure from this well-established principle especially in the case of a youthful first offender.

[56] In light of the foregoing, it is my view that a fit sentence in this case requires the imposition of a conviction. I suspend the passing of sentence and place Mr. F. on probation for a period of 14 months on the statutory terms along with the following additional terms [7]:

2.2 Report in person to a probation officer within two working days and after that, report at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.

2.5 Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor compliance and he must provide proof of compliance with any condition of this order to his probation officer on request;

6.1 Do not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means, with M.G.

6.2 Do not be within 100 metres of any place where you know M.G. to live, work, go to school, frequent or any place you know her to be except for required court attendances.

6.3 Immediately leave any place M.G. is known to be except for required court attendances.

11.1 Attend and actively participate in all assessment, counselling or rehabilitative programmes as directed by the probation officer and complete them to the satisfaction of the probation officer including, but not limited to any matters personal to the probationer as identified by the probation officer.

12.1 Perform 100 hours of community service work on a rate and schedule to be directed by the probation officer. These community service hours must be completed within 13 months of the start date of this Order.

19. While subject to this probation order:

• Mr. F. when communicating with anyone by means of a computer system or any like device shall identify himself by his full name, “S.F.” and shall not use any pseudonym, nickname or code name to identify himself.
• Mr. F. shall not possess any digital, video, or photographic intimate imagery of M.G. He shall forthwith surrender any such intimate imagery as he currently does possess to his probation officer for destruction.
• He shall not possess any intimate images, (as defined by section 162.1(2) of the Criminal Code), of any person who is known to him personally.

[57] Mr. F. shall have 90 days within which to pay the victim fine surcharge.

Dated at Brampton this 7 day of May 2024.

J.S. Nadel, (OCJ)

Footnotes

[1] These reasons for sentence are subject to final editing for spelling, punctuation, grammar and syntax.

[2] The two videos were not exhibited at this trial. However, appropriately cropped, or edited screenshots from them were exhibited. In one of these screenshots a profile of Ms. G’s face is visible.

[3] R. v. A.C., 2017 ONCJ 317, R. v. J.S., 2018 ONCJ 82

[4] R. v. A.C., 2017 ONCJ 129, R. v. Agoston, 2017 ONSC 3425, R. v. B.Z., 2016 ONCJ 547

[5] I am indebted to Justice D.A. Harris for the following discussion which can be found in his decision in R. v. A.C., 2017 ONCJ 129, (OCJ).

[6] R. v. Fallofield, 1973 1412 (BC CA), [1973] B.C.J. No. 559 (C.A.) at para. [21].

[7] These terms are numbered using the template mandated for probation orders.