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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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 subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2024 02 09 COURT FILE No.: Pembroke 22-0654
BETWEEN:
HIS MAJESTY THE KING
— AND —
G.S.
Before: Justice J.R. Richardson
Heard on: July 18, November 7, 2023 Reasons for Judgment released on: February 9, 2024
Counsel: Goher Irfan........................................................................................... counsel for the Crown Mark Huckabone............................................................................. counsel for the accused
RICHARDSON J.:
Introduction
[1] This case addresses the appropriate sentence for Distributing an Intimate Image Without Consent, contrary to section 162.1 of the Criminal Code for a 46 year old man suffering from PTSD and Depression as a result of an extremely deprived and abusive childhood.
Facts
[2] On July 18, G.S. entered pleas to two counts, Distributing Intimate Images without the Consent of the complainant and Possession of a Firearm without a Licence.
[3] The Crown proceeded by Indictment.
[4] The parties were involved in an intimate partner relationship. The relationship ended May 11, 2022. On May 13, 2022, Mr. G.S. sent images of the breasts and vagina of the complainant to her daughter by Facebook.
[5] On May 19, 2022, Mr. G.S. was arrested. Police then learned that he had a number of firearms in his possession. His Possession and Acquisition Licence expired ten months earlier in July 2021.
[6] After taking the plea, I ordered a Pre-Sentence Report.
The Pre-Sentence Report
[7] Mr. G.S. has no prior criminal record. His parents separated when he was five. His father was an alcoholic and everyone in the family was abused by him. Mr. G.S. spent time in foster care, and he lived with his mother in a shelter.
[8] Unfortunately, the abuse did not end there. Mr. G.S.’s mother remarried. His step-father was physically, sexually and mentally abusive. Mr. G.S. would run to the woods to get away from him.
[9] As a result of his adverse childhood, Mr. G.S. started drinking heavily in his teenage years. He suffered nightmares and panic attacks. He had difficulty keeping a job. Hearing raised voices was a trigger for him. He has managed to reduce, but not eliminate his alcohol consumption in his adult years. He described himself as a social drinker. He told the Probation Officer that he consumed four alcoholic beverages before he committed the intimate image offence. According to his sister, he drinks to excess a couple of times a year. He uses cannabis when he needs something to sleep.
[10] Mr. G.S. has two of his own children, a son who is 15 and a daughter who is 14.
[11] He met the victim of this offence and they dated for two years and were engaged. During the pandemic, her adult children returned to live with them, and this caused conflict. They tried counselling and managed to reconcile. However, the conflict continued because the complainant did not tell the children about the reconciliation, and she did not wear her engagement rings. This upset and angered Mr. G.S..
[12] He regrets sending the intimate images. He knows that he exercised poor judgment.
[13] He would still like to reconcile with the complainant.
[14] In the past he was a volunteer scouting leader, which is something he speaks proudly about.
[15] He is supported by the Ontario Disability Support Plan. He is under the care of a psychiatrist for Post Traumatic Stress Disorder and Major Depressive Disorder. He has completed some therapy for his PTSD. He takes prescription medication for depression and to reduce his nightmares.
[16] His sister reported that he has a learning disability. He has a Grade 11 education.
[17] With respect to the firearms offences, he stated that he is not an organized person. He acknowledged receiving the paperwork to renew his licence, but he did not follow through with it.
The Complainant
[18] The complainant told the author of the PSR that she would like to resume communication with Mr. G.S.. She stated that she is not concerned for her safety. She wants to resume a relationship as friends and see where things go. She told the probation officer that she is worried about Mr. G.S..
[19] She did not wish to file a Victim Impact Statement.
The Submissions
[20] The Crown, citing Justice Caponecchia’s decision in R. v. Ha 2023 ONCJ 75 seeks four to six months gaol followed by Probation. The Crown argued that denunciation and deterrence are the primary sentencing factors in this case.
[21] Defence counsel distinguished Ha on the basis that that case involved the public posting of images of the complainant and accused having sex on an adult pornography website. The images were in the public domain for an extended period of time. Ha also involved allegations of assault which are not present here. Unlike Mr. G.S., Ha involved the accused taking the time to tag the victim’s name to the images. As Justice Caponecchia noted at paragraph 33:
I reject the suggestion that Mr. Ha’s decision to distribute the intimate videos was impulsive. I am satisfied that it was the opposite. The submission might be more persuasive if Mr. Ha had only posted one indiscriminate image in which the identity of the victim was not obvious. Or if he had not attached her name to the videos. Instead, Mr. Ha took the time to choose 10 graphic videos and distribute each one. He also took the extra step of attaching the victim’s name to the videos. The distribution of the videos was not a momentary error in judgment, but rather a deliberate and calculated act intended to cause the victim harm. Distributing multiple videos on an adult pornography website with the victim’s name guaranteed the victim would suffer. Mr. Ha’s moral blameworthiness is very high.
[22] These distinguishing factors, defence counsel advocated, along with Mr. G.S.’s background, reduce the moral blameworthiness of Mr. G.S. and make a conditional sentence appropriate.
The Law
[23] I will start with Ha. Justice Caponecchia embarked upon a lengthy review of the case law involving the dissemination of intimate images. At paragraphs 58 to 62, she concluded:
[58] In R. v. Macintyre-Syrette, 2018 ONCA 706, at para. 19, the Ontario Court of Appeal indicated that there are circumstances in which the need for denunciation and deterrence is such that incarceration is the only suitable way to express society's condemnation of the offender's conduct.
[59] I am satisfied this is one of those cases. In Mr. Ha’s case a conditional sentence would not be consistent with the fundamental principles of sentencing. It would fail to adequately reflect the principles of deterrence and denunciation. A conditional sentence would also not be proportionate to the gravity of this offence.
[60] I adopt the following sentiments of two of my former colleagues. First, Justice Rahman in R. v. A.C., 2017 ONCJ 317. I too find it difficult to accept that anyone whose judgment is so blinded by vengeance and is motivated to humiliate a former intimate partner would find the prospect of house arrest a deterrent. I also cannot accept that a period of house arrest adequately denounces the extreme breach of privacy in this case.
[61] Second, Justice Stribopoulos, in R. v J.R., [2018] OJ No 6409 (C.J .) The sentence imposed for the offence of distributing intimate images without consent must send a very strong message that former intimate partners, who feel aggrieved for whatever reason, cannot embark on a course of conduct designed to publicly bully and harm their former partner. Furthermore, relationships end every day for a great variety of reasons. When they do so, individuals are entitled to live their lives normally and feel safe. They are entitled to live free of any fear of the harmful repercussions caused by the distribution of “revenge-porn” by a former intimate partner.
[62] My conclusion is that only a sentence of imprisonment in this case could properly give effect to the fundamental principles of sentencing.
[24] Although I agree with defence counsel that the facts in Ha are much different to this case, I cannot quarrel with Justice Caponecchia’s flawless reasoning about the overarching importance of deterrence and denunciation in cases of this nature.
[25] In R. v. Adubofuor 2023 ONCJ 477, Justice Wendl rejected a conditional sentence on facts more similar to this case (the accused sent an image of the complainant to her new boyfriend) stating at paragraph 8 that “this does not alter the sentencing principles in my view. It is a significant breach of trust and the impact on the victim is the same. It is degrading and substantial.”
[26] In Adubofuor, however, the accused surreptitiously recorded the video (an aggravating factor that is not present here) and his comments in the Pre-sentence Report demonstrated that he had absolutely no insight with respect to the impact of his offence. Justice Wendl noted at paragraph 16, “Again, her embarrassment or humiliation, both of which go to the core of her dignity, were simply secondary to him wanting to show off the size of his genitalia.”
[27] None of this is present in Mr. G.S.’s case.
[28] Justice Wendl imposed a sentence of four months in custody.
Assessment
[29] Like Justice Wendl, Justice Caponecchia and numerous other judges who have considered the appropriate sentence for this offence, I find that starting point for this offence should be a custodial sentence. This is necessary, in my view, to reflect the high degree of moral blameworthiness that comes from this offence as well as the significant victim impact that often accompanies it. Denunciation and deterrence will usually mandate a custodial, not a conditional sentence.
[30] However, there will always be cases where the assessment of the aggravating and mitigating factors may take the sentence outside of the normal range. As Justice Wagner (as he then was) wrote in R. v. Lacasse 2015 SCC 64 at paragraph 58:
There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case. LeBel J. commented as follows on this subject:
A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred.
[31] In this case, I am satisfied that the unique circumstances of this case and the unique profile of Mr. G.S. mandate a Conditional Sentence. Those factors include:
a) The mitigating effect of a guilty plea.
b) The fact that Mr. G.S. does not have a prior criminal record.
c) Mr. G.S.’s extremely deprived childhood where he was victimized and traumatized.
d) Mr. G.S.’s mental illness. In my view, incarceration of persons with a life-long profound and serious mental illness like Mr. G.S.’s should be avoided unless there is no other choice for the protection and safety of the public.
e) The fact that this case involves the dissemination of one intimate image to one person, not the public posting and open shaming of the victim. I daresay that had this case involved widespread harmful dissemination, as in Ha and other cases, I would have imposed a custodial sentence.
f) The fact that this was an impulsive act committed by Mr. G.S. when he was hurting as a result of the break-up of his relationship. This is not a case like Ha where the offender purposely set about the task of trying to publicly destroy the victim, or a case like Adubofuor where the offender has absolutely no insight into the inherent wrongfulness of his crime.
[32] In my view, the appropriate sentence for the Intimate Image charge is one of ten months conditional. There will be a six month house arrest component of the conditional sentence. The conditional sentence will be followed by two years probation. The usual ancillary orders will also follow.
[33] With respect to the firearms offences, on the spectrum of conduct captured by the section, Mr. G.S.’s crimes are more akin to regulatory offences than they are to the “true crime” (see R. v. Nur, 2015 SCC 15). Ordinarily, I would impose a fine, forfeiture order and weapons prohibition. In light of the fact that Mr. G.S. is in receipt of ODSP and does not have the means to pay a fine, I will suspend the passing of sentence and place him on probation for one year concurrent to the probation order on the 162.1 offence. I will also order that the weapons seized be forfeit (subject to the usual 60 day period to allow for transfer to a duly licenced person) and a firearms prohibition. In my view, given the impulsive nature of the intimate image offence and the underlying mental health issues, Mr. G.S. should not possess firearms again.
Released: February 9, 2024 Signed: Justice J.R. Richardson