Court File and Parties

COURT FILE NO.: 116/16 DATE: 2018/08/03

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – J.B.

Counsel: J. Spangenberg, for the Crown G. Snow, for the offender

HEARD: July 23, 2018

BEFORE: LEACH J. (ORALLY)

Introduction

[1] Before me for sentencing is J.C.B. who, on October 30, 2017, pled guilty to a charge of publishing an intimate image without consent, contrary to s.162.1 of the Criminal Code of Canada, ("the Code").

[2] After a presentation of agreed facts that day, including the filing and sealing of five relevant intimate images of Mr B.'s victim, C.T., which were published on the internet by Mr B., I made a finding of guilt in relation to the s.162.1 offence.

Procedural history after guilty plea

[3] In the wake of that guilty plea and finding of guilt, I directed the preparation of a pre-sentence report pursuant to s.721 of the Code. However, scheduling of a sentencing hearing was delayed temporarily until completion of a trial, by jury, in relation to a remaining count on the same indictment.

[4] On November 2, 2017, that jury returned a verdict of "not guilty" in relation to that other charge, and I adjourned this matter to be spoken to in assignment court on January 9, 2018, for the scheduling of a sentencing hearing in relation to Mr B.'s s.162.1 offence. On that date, the matter was adjourned to a sentencing hearing on March 22, 2018.

[5] Unfortunately, the sentencing hearing could not proceed that day as anticipated, owing to last minute, privileged but accepted developments that prompted Mr B.'s extant counsel Mr Farrington to request removal as Mr B.'s counsel of record, (a request which I granted), and Mr B.'s retention of new counsel. In the circumstances, the matter was adjourned in Mr B.'s presence to April 3, 2018, to be spoken to, for the scheduling of a new date for the sentencing hearing after Mr B.'s anticipated retention of new counsel.

[6] On April 3, 2018, despite repeated paging of the matter, and my standing the matter down for approximately half an hour, Mr B. did not appear. Nor did anyone appear on his behalf.

[7] As Mr B. and his counsel subsequently explained, to the satisfaction of the Crown and the Court, the non-attendance on April 3, 2018, stemmed from an honest but mistaken belief that the matter was returnable on Friday, April 6, 2018, at which time Mr B. did attend the courthouse looking for his matter on the docket, and with the assistance of his former counsel Mr Farrington and anticipated new counsel Mr Snow, (who both happened to encounter Mr B. at the courthouse on the afternoon in question), discovered the error and made arrangements for Mr B. to turn himself in to authorities the following Monday. (The formal surrender, in relation to the outstanding warrant, was delayed so as not to interfere with Mr B.'s scheduled service of an intermittent sentence during the intervening week-end.) A charge related to the failure to appear would subsequently be withdrawn by the Crown.

[8] Of course, none of those circumstances, explanations or future developments were known to the court or attending Crown counsel on the morning of April 3, 2018. In the circumstances prevailing at the time, and for reasons orally delivered, I directed the issuing of a Form 7 warrant, pursuant to s.475(1)(b)(ii) of the Code. The matter then was adjourned sine die, to be spoken to upon Mr B.'s apprehension.

[9] On April 18, 2018, Mr B. apparently was in custody and brought before Justice Grace. By that time, Mr B. was formally represented by new counsel, Mr Snow. The matter then was adjourned to a hearing before me, on April 24, 2018, for the parties to speak to the matter. On that date, the matter was adjourned to a sentencing hearing on July 23, 2018, with deadlines set for the filing of any further material counsel might wish to tender in that regard.

[10] In advance of that hearing, I had an opportunity to review the following material received in relation to sentencing:

• i. a copy of the aforesaid presentence report, dated December 20, 2017;
• ii. a victim impact statement prepared by C.T. which, at her request, was read aloud by Crown counsel during the course of the sentencing hearing;
• iii. a volume of case law submitted by the Crown, entitled "Book of Authorities on Sentencing", and containing 9 tabbed decisions;
• iv. a volume of case law submitted by defence counsel, entitled "Accused Book of Authorities re Sentencing", and 7 tabbed decisions; and
• v. a volume entitled "Supplementary Sentencing Materials" submitted by the defence, including:
  • an additional sentencing decision;
  • a letter written to me by Mr B., dated March 16, 2018;
  • a letter written to me by Mr B.'s fiancé, J.E., dated March 16, 2018;
  • a letter of support written by C.D., who is a friend and neighbour of Mr B., and a personal injury lawyer here in London;
  • a letter of support written by T.K., another friend of Mr B., who met Mr B. through her earlier employment at the Goodlife Fitness Club here in London, and has renewed and continued her friendship with him during her current employment as a salon manager;
  • N.H., another friend and neighbour of Mr B., who is employed as a Provincial Offences Officer with the Elgin St Thomas Health unit;
  • A.H., apparently Mr H.'s spouse, and another friend and neighbour of Mr B., who is employed as a nurse practitioner and lecturer at Western University; and
  • a number of documents outlining the terms of an earlier judicial interim release order, the terms of a Bail Recognizance, and associated conditions of release.

[11] In the course of the hearing before me on July 23, 2018, I also was presented with a copy of Mr B.'s formal criminal record, and a letter supplied by a Human Resources Supervisor at the B. location of "P.O.C.", confirming the extent and nature of Mr B.'s ongoing employment there.

[12] All of that information was supplemented by the oral submissions from counsel, as well as verbal comments made directly to me by Mr B., pursuant to section 726 of the Code.

Circumstances of offence

[13] The circumstances leading to Mr B.'s s.162.1 conviction were presented to me on October 30, 2017, and were as follows:

• Mr B. and C.T. were in an intimate dating relationship that started in or about January of 2015, and proceeded in what was described as an "on and off" fashion until it ended towards the end of June of 2015.
• Contact was maintained between Mr B. and Ms T. after the end of their dating relationship, as there were a number of unresolved issues, including matters relating to a certain motor vehicle.
• On Thursday, August 20, 2015, at approximately 1:12 pm, Ms T. then was contacted by a colleague, who made Ms T. aware of the fact that someone purporting to be Ms T. had created a "fake" Facebook page or "profile" account, using C.T.'s full name and a photograph of Ms T.
• On further examination of information provided in relation to the fake Facebook profile, Ms T. noticed that a number of her close friends and family members already had accepted "friend" requests sent to them by the person using the "fake" Facebook profile account, giving such friends and family members access to the images posted on the profile account.
• Ms T. also learned that images already posted to the fake Facebook profile included photographs of her 9-year-old son, and five intimate images of her. Copies of those photographs were provided to Ms T. by the colleague who was bringing the matter to her attention.
• Ms T. recognized the origin of the relevant intimate images of her, posted to the fake Facebook account, as they had been taken by Mr B., with Ms T.'s knowledge and consent, using Mr B.'s personal cellular phone, during a previous date that took place during the course of their intimate relationship. Moreover, Mr B. was the only person who possessed nude photographs of Ms T.
• C.T. had never given Mr B. permission to share the relevant intimate photographs of her with anyone, let alone the general public.
• After the fake Facebook profile and posted intimate images had been brought to her attention on August 20, 2015, Ms T. attended London Police headquarters later that day to file a report, providing a detailed statement, as well as copies of the fake Facebook profile and the relevant intimate images. She quite understandably was embarrassed and ashamed that those images had been published on the internet without her permission.
• The offender Mr B. was arrested and charged with his s.162.1 offence shortly thereafter.
• By the time Ms T. came to know of the fake Facebook site, it was known to have been viewed by her employer and one co-worker, as well as a number of her friends. Steps were taken to "take down" the fake Facebook site "very quickly". Although the precise amount of time that required could not be confirmed on October 30, 2017, defence counsel subsequently indicated, and Crown counsel did not dispute, during the course of oral submissions on July 23, 2018, that the relevant Facebook profile containing the intimate images was removed from the internet "within hours" of Ms T. learning about it.

[14] Before turning to further relevant considerations, and determination of a suitable sentence for Mr B.'s crime, I will outline certain considerations I have in mind throughout this process.

Sentencing objectives

[15] In that regard, I begin by noting various legislated directions and principles Parliament has provided in relation to sentencing.

[16] As emphasized by s.718 of the Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society, by imposing just sanctions that have one or more of the following objectives:

• a. denunciation of unlawful conduct, and the harm done to victims or the community caused by unlawful conduct;
• b. deterring the offender and others from committing offences – also referred to as specific and general deterrence;
• c. separation of offenders from society, where necessary;
• d. assisting in the rehabilitation of offenders;
• e. providing reparations for any harm done to victims or the community; and
• f. promotion of a sense of responsibility in offenders, and their acknowledgment of the harm done to victims and the community by their conduct.

[17] Pursuant to s.718.1 of the Code, a sentence should be proportionate to the gravity of the offence, and the degree of responsibility of the offender.

[18] Pursuant s.718.2 of the Code, I note that, amongst other considerations, the court is obliged to take into account principles that include the following:

• A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, including the following matters expressly deemed to be aggravating circumstances:
  • evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim; and
  • evidence that the offence had a significant impact on the victim, considering his or her age and other personal circumstances, including his or her health and financial situation.
• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.
• All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

[19] The sentencing objectives outlined above are applicable in relation to all convictions, and as noted above, I accordingly have them in mind throughout the process of arriving at a just sentence for Mr B. in relation to the conviction now before me.

[20] However, I also am mindful of numerous additional principles and considerations that our courts frequently have emphasized in relation to crimes of this nature. In particular:

• Section 162.1 of the Code is a relatively new offence that was created in response to growing concerns about violations of privacy, "cyber-bullying" and, in particular, the distribution of intimate images in a public forum without the consent of those depicted in them, especially in cases involving what is known in the vernacular as "revenge porn". It is beyond question that the non-consensual distribution of such intimate images carries with it the risk of psychological hardship and embarrassment to the victims of such crimes. In notorious instances, those who have been the subject of such non-consensual publication of their intimate images on the internet have killed themselves. The inferred impact on victims accordingly is substantial, and the moral responsibility of such offenders generally will be high. Moreover, our courts recognize that distribution of such intimate images via the internet can result in the images being forever available. See, for example: R. v. Ly, [2016] O.J. No. 7196 (O.C.J.), at paragraphs 32-34 and 44-45; R. v. P.S.D., [2016] B.C.J. No. 2653 (Prov.Ct.), at paragraphs 9-10; R. v. A.C., 2017 ONCJ 317, [2017] O.J. No. 2867 (O.C.J.), at paragraphs 17-20 and 65; R. v. Agoston, [2017] O.J. No. 3207 (S.C.J.), at paragraphs 16-17; and R. v. J.S., [2018] O.J. No. 653 (S.C.J.), at paragraphs 20 and 32-34.
• While other sentencing goals such as rehabilitation of an offender obviously must not be forgotten, denunciation and general deterrence accordingly are the paramount sentencing goals in relation to s.162.1 crimes. See, for example: R. v. Calpito, [2017] O.J. No. 1171 (O.C.J.), at paragraphs 77 and 99; R. v. A.C., supra, at paragraphs 53 and 54; and R. v. J.S., supra, at paragraph 20. Denunciation and general deterrence similarly have been accorded paramount importance in relation to crimes of voyeurism and criminal harassment involving the surreptitious taking and/or non-consensual sharing of intimate images via the internet. See, for example: R. v. Desilva, [2011] O.J. No. 1298 (O.C.J.), at paragraph 29; R. v. Dewan, [2014] O.J. No. 5151 (C.A.), at paragraph 13; R. v. Trinchi, 2016 ONSC 6585, [2016] O.J. No. 6719 (O.C.J.), at paragraph 33; and R. v. Zhou, [2016] O.J. No. 4641 (O.C.J.), at paragraph 28.

Maximum and mandatory minimum sentences – General principles

[21] The s.162.1 offence committed by Mr B. is a serious one, as indicated by Parliament's indication that, when prosecuted by indictment, anyone committing the offence is liable to imprisonment for a term of up to five years.

[22] Having said that, I obviously am mindful of considerations, emphasized in authorities such as R. v. Cheddesingh, 2004 SCC 16, [2004] 1 S.C.R. 433, and R. v. M.(L.), 2008 SCC 31, [2008] 2 S.C.R. 163, that a maximum penalty of any kind, by its very nature, will be imposed only rarely. In particular, while the maximum sentence is not reserved for the abstract case of the worst crime committed in the worst circumstances, and comparisons to the hypothetical worst case scenarios should be avoided, imposition of a maximum penalty is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness. Each inquiry must proceed on a case by case basis, with the decision being dictated by the general principle of proportionality.

[23] There is no mandatory minimum punishment for a s.162.1 offence.

Ancillary orders

[24] In terms of ancillary orders, there would appear to be no mandatory ones for a s.162.1 offence prosecuted by way of indictment, apart from the $200 victim surcharge mandated by section 737 of the Code.

[25] However, numerous discretionary orders are available.

[26] They include, obviously, possible no contact orders pursuant to s.743.21 of the Code.

[27] When prosecuted by way of indictment, a s.162.1 conviction, punishable by imprisonment for "not more than five years", (i.e., up to and including five years), is a "secondary designated offence" pursuant to sub-paragraph (a) of that term's definition in s.487.04, giving rise to the possibility of a Form 5.04 DNA order on the application of the Crown, pursuant to s.487.051, if the court is satisfied that making such an order would be in the interests of the administration of justice, having regard to the offender's criminal record, nature of the offence, circumstances of its commission and the impact such an order would have on the privacy and security of the offender.

[28] In relation to sentences imposed for commission of a s.162.1 offence, the court also is given authority, pursuant to s.162.2 of the Code, to impose, in addition to any other punishment or condition forming part of the sentence, an order prohibiting the offender from using the internet or any other digital network, for any period the court considers the appropriate, unless the offender does so in accordance with conditions set by the court.

[29] I should also note my awareness that, pursuant to s.738(1)(e) of the Code, the court has the authority, when imposing sentence in relation to a s.162.1 offence, to order that the offender make restitution by paying anyone who, as a result of the offence, incurs expenses to remove an intimate image from the internet or other digital network, in an amount not exceeding those expenses, to the extent they are reasonable and the amount is readily ascertainable. However, no such request or supporting evidence was made during the course of the sentencing hearing before me.

Sentencing

[30] With the above legislative provisions and principles in mind, I turn to the determination of an appropriate and fit sentence for Mr B.

[31] In that regard, I obviously must take into account the particular features of this situation, starting with the personal circumstances of the offender, Mr B.

CIRCUMSTANCES OF THE OFFENDER

[32] Those personal circumstances were outlined in detail in the pre-sentence report I have mentioned, (dated December 20, 2017), and were supplemented by additional sentencing material noted above, (including the numerous letters of support that were filed), as well as the submissions of counsel.

[33] I have reviewed and considered all of that information, but note that the personal circumstances of Mr B. include the following:

• He was born here in London, in April of 1988. He accordingly was approximately 27 years old at the time of the offence that brings him before me now, and is 30 at the time of sentencing.
• Although his parents divorced when he was young, and his youth thereafter was divided between primary residence with his father until the age of 12, and primary residence thereafter with his remarried mother and a stepfather with whom there were disagreements, Mr B.'s youth generally seems to have been stable and uneventful, with no reports of abuse or other problems. Mr B. describes his childhood as a "happy" one, during which his interest in competitive sports was fostered and supported, particularly by his biological father.
• Having said that, it seems Mr B. had a challenging experience with formal secondary education, achieving average grades and being suspended many times for fighting, before failing to complete high school. However, that seems to have stemmed from a lack of interest in academic pursuits, as Mr B. himself confirms he was more focused on school sports and different forms of "hands on" learning; something born out in his subsequent education and employment history, and his leisure activities.
• As for the former, Mr B. worked in the auto body industry in high school and community college, where he pursued courses focused on auto mechanics, qualified as a Class A and Class B mechanic, and opened his own auto body shop at the relatively young age of 22 - - although that seems to have lasted only 2-3 years until the business was destroyed by a fire and never reopened. He also has worked as a personal fitness trainer, and in construction – including five months work in Calgary before a return to Ontario. Most recently, he has returned to full time employment doing mechanical work on custom cars and motorcycles, where he earns an hourly wage. Correspondence from a Human Resource Supervisor at the Burlington location of P.O.C., (mentioned above), confirms that Mr B. now has been gainfully employed there on a full time basis since March 26, 2018, where he earns an hourly wage, and currently holds the position of "Supervisor in Training". Mr B. apparently enjoys the work there, is doing well, and hopes to progress to a position of full time Supervisor.
• As for leisure activities, Mr B. has maintained a passionate interest in personal fitness and competitive sports – with a particular focus on hockey -- although an injury apparently frustrated a promising future in that regard.
• Although he has trafficked in narcotics, there are no indications that Mr B. has or has ever had any problems with personal consumption of alcohol or use of illicit substances. To the contrary, he apparently is very conscientious about health-related matters.
• Over the past four years, however, he nevertheless has become a repeat offender, accumulating a number of convictions for various types of criminal activity. In particular:
  • he has two criminal convictions for criminal harassment from November of 2014, in respect of which he received suspended sentences, 13 months of probation and a weapons prohibition order;
  • he has convictions for resisting arrest and escaping lawful custody from January of 2016, in respect of which he effectively received a sentence of 31 days, (before receiving credit for 30 days of presentence custody);
  • he has convictions from February of this year for unauthorized possession of a prohibited or restricted weapon and possession of a schedule 1 substance for the purpose of trafficking, in respect of which he effectively received a sentence of 9 months, (before receiving credit for 6 months of presentence custody); and
  • he has multiple convictions, (from November of 2014, February of 2015, July of 2015 and January of 2016), for failure to comply with applicable terms of recognizance, in respect of which he has received sentences that began with a fine and progressed to incarceration for periods of increasing duration, (prior to credit for presentence custody), served concurrently with the sentences he received for other offences.
• From a relationship perspective, his experience also has been problematic. In that regard:
  • Between the ages of 20 and 27, he was involved in two long term relationships, (lasting 5 and 2 years respectively), that ended amicably.
  • He also was involved in another relationship which resulted in a child, with whom Mr B. maintains contact, and in respect of whom Mr B. apparently has continued to pay child support. It seems Mr B. also has been able to maintain a friendly relationship with the child's mother.
  • However, Mr B. also has been involved in two other relationships, including his relationship with C.T., which have not ended amicably, and which in fact resulted in Mr B. being the subject of criminal charges. At the time of Mr B.'s interview with the author of the pre-sentence report, in the fall of 2017, Mr B. apparently was blaming those failed romantic partners for his own troubles with the law.
  • On a much more positive note, Mr B. currently is in what appears to be a very stable long term relationship with a new partner, Ms E., who is now also his fiancé. By all accounts, Ms E. is a very stabilizing and positive influence on Mr B. As noted below, she apparently has played a significant role in helping Mr B. gain insight into his misconduct, empathy for Ms T., and corresponding remorse. Ms E. is also now pregnant, and she and Mr B. are looking forward to the birth of their first child together.
• In the meantime, (or at least at the time of the presentence report's preparation), Mr B. has been residing with his mother and step-father for three years or more, helping out with grocery bills and other tasks in lieu of paying rent.
• The parties agree that, in relation to the offence that brings Mr B. before me now, he has no remaining presentence custody to be credited towards any custodial sentence I might impose.

POSITION OF THE CROWN

[34] I turn next to an outline of the competing sentencing positions of the parties.

[35] The Crown submits that, having regard to all the circumstances, an appropriate sentence for Mr B.'s conviction would be a custodial sentence of one year, to be served in a formal institution.

[36] Crown counsel suggested that custodial sentence should be followed by a period of three years of probation, on terms and conditions, beyond those required by s.732.1(2) of the Code, that would include:

• terms prohibiting him from any contact or association with Ms T., including a requirement that Mr B. not be within 200 meters of any known place of residence, employment or education of Ms T.; and
• a term requiring Mr B. to engage in any programs of counselling that might be recommended by his probation officer.

[37] Crown counsel also sought ancillary orders in relation to Mr B. that would include:

• the $200 victim fine surcharge mandated by section 737 of the Code;
• a non-contact order, pursuant to s.743.21 of the Code; and
• an order requiring Mr B. to supply a sample of his DNA, pursuant to ss.487.04 and 487.051 of the Code.

[38] In relation to s.161.2 of the Code, Crown counsel submitted that possible ancillary orders and restrictions certainly were available to the court pursuant to those provisions, but that the Crown was not seeking an order prohibiting Mr B. from using the internet at all, having regard to recent case law emphasizing that use of the internet in today's society had become more of a necessity than a privilege.

POSITION OF THE DEFENCE

[39] Counsel for Mr B. took no issue with the ancillary orders sought by the Crown in relation to Mr B., conceding that they were appropriate in the circumstances. In that regard, there was simply a request that Mr B. be given the maximum period currently allowed, (i.e., 60 days), in which to pay the victim fine surcharge.

[40] Nor was issue taken with the need for imposition of some form of custodial sentence, to be followed by a period of probation.

[41] However, it was submitted on behalf of Mr B. that the appropriate approach would be a conditional sentence of 9 to 12 months, (i.e., a custodial sentence of that duration, to be served in the community pursuant to s.742.1 of the Code), to be followed by a period of probation in the range of 12 to 18 months.

[42] By way of further specifics, it was suggested by defence counsel:

• that the terms of the conditional sentence require house arrest, (i.e., 24 hour confinement to Mr B.'s residence), for a period of no more than 3 to 6 months, with exceptions for employment, (including travel to and from employment), medical emergencies and similar health needs, as well as an exception of one day a week to allow for personal exercise and attendance to other necessities;
• that the terms of the conditional sentence thereafter be modified and relaxed, for the balance of its duration, to a curfew requiring Mr B. to be in his residence between the hours of 11pm and 7am, except for the requirements of his employment, (including travel to and from employment); and
• that the terms of Mr B.'s probation include a requirement of community service, imposed pursuant to s.732.1(3)(f) of the Code, in the range of 100 hours.

AGGRAVATING FACTORS

[43] I turn next to a consideration of possible aggravating factors that might apply to the sentencing of Mr B.

[44] In my view, the case of Mr B. does present numerous aggravating circumstances and considerations, which include the following:

• i. First, in committing his offences, Mr B. clearly abused a position of trust in relation to his victim, C.T., which is deemed to be an aggravating consideration pursuant to s.718.2(a)(iii) of the Code. It was only through a position of trusted intimacy that he was able to take and retain the intimate images in question. He then betrayed that trust in a horribly deliberate and egregious manner, calculated to repay Ms T.'s trust by subjecting her to extreme humiliation and embarrassment vis-à-vis her friends, family and coworkers.
• ii. A second aggravating consideration is the number and nature of the five intimate images Mr B. chose to publish without Ms T.'s consent, and the fact they were published in way clearly indicating they were photos of Ms T. Although there thankfully were no video recordings, the still images distributed by Mr B. via the internet could not have been more private. A number them include close-ups of Ms T.'s vaginal and anal regions, as well as her fully naked torso. A number depict her self-application of a sexual object. One image clearly depicts her face. Another depicts a distinct tattoo. Although Ms T. is fully clothed in the image depicting her face, and her face is not depicted in the photograph depicting her tattoo, such considerations no doubt are of little comfort to Ms T., given that all of the photos were published to a Facebook profile providing her full name, and clearly indicating that all five images were depictions of her.
• iii. A third serious aggravating consideration in this case is evidence of the serious, profound, ongoing and perhaps unending impact on Ms T. of Mr B.'s misconduct. As noted above, that too is deemed to be an aggravating factor pursuant to s.718.2(a)(iii.1) of the Code. In this case, some of that impact was described in the compelling victim impact statement provided by C.T. herself, which was read out in court by Crown counsel, on Ms T.'s behalf. In that regard:
  • She described how her world had been "flipped upside down" by what Mr B. had done to her.
  • Previously unwilling to use her real name even on her own legitimate Facebook page, she suddenly was confronted with the nightmare realization that extremely intimate photos of her had been made available to at least 96 others, (including family, friends and co-workers), who had been added as "friends" to the fake profile created by Mr B.
  • Moreover, as Ms T. rightly notes and emphasizes, there is simply no way of knowing how much further the photos may have been shared, or perhaps will be shared in the future. The fake profile created by Mr B. may have been taken down, but there is no telling whether the photos were shared before that, or whether copies of the photos were retained in some manner by others – including Mr B. She understandably is horrified by the prospect of her son one day seeing them.
  • Furthermore, even if all copies of the photos have been destroyed, there is obviously no way to erase the memories of those who may have seen them.
  • In the result, Ms T. has to live daily with the uncertainty of wondering whether those she lives, works and otherwise interacts with have seen the photos, and what they must think of her.
  • More generally, she now struggles with severe depression and insecurity, and she has lost trust in others. She is struggling to regain her sense of self; something that effectively was stolen by Mr B.'s callous actions.
  • In short, C.T.'s privacy, basic human dignity and sense of self-worth have been compromised in a profound and lasting way – with no way of knowing whether Ms T. will experience further similar humiliation and torment if the intimate photographs of her are the subject of further republication in the future. Whatever sentence I impose on Mr B., the reality is that Ms T. will have to live with the consequences of Mr B.'s actions longer than he will – and perhaps for the rest of her life.
• iv. A fourth aggravating consideration is the fact that Mr B.'s conduct was not only callous but despicably deliberate and calculated, insofar as it clearly involved sustained planning and effort. This was not a momentary lapse in judgment, or an act of spontaneous cruelty. It obviously took considerable time and follow up measures to create an artificial Facebook profile in C.T.'s name, upload photographs and other information to make the artificial profile convincing, and then initiate successive "friend" requests to Ms T.'s known family, friends, co-workers and employer. (Again, Ms T. says there were no less than 96 accepted friend requests on the artificial profile by the time it came to her attention.) Mr B. could have rethought and abandoned his plans at any point in that process, but obviously chose to keep going. He clearly was determined to inflict pain and humiliation on Ms T., his former romantic partner. While this particular "revenge porn" may not have been uploaded to the internet generally, to be viewed by strangers who may not have been able to recognize C.T., in my view it was egregious for Mr B. to target and promote distribution to those closest and dearest to Ms T., with the obvious malicious intention of maximizing the degradation and embarrassment she would experience in her everyday life.
• v. A fifth aggravating consideration is Mr B.'s prior criminal record, which clearly displays the onset and escalation of antisocial criminal activity over the past 3-4 years. Beyond the existence of that record, I think the nature and pattern of Mr B.'s offences gives additional cause for concern. For example:
  • The earlier convictions for criminal harassment are particularly troubling, given the nature of the offence which brings Mr B. before me now. (As reflected in the authorities, such misconduct previously was addressed by charges of criminal harassment prior to the more specific offence created by the relatively recent enactment of s.162.1 of the Code.) All such offences, along with trafficking in Schedule 1 narcotics when Mr B. himself is not a user, reflect a disturbing common denominator of calculated willingness to engage in behaviour that inflicts harm on others in service of his own malicious or selfish ends.
  • At the same time, the offences I have mentioned, along with resisting arrest and escape from lawful custody, suggest an aggressive nature which Mr B.'s completion of a "Changing Ways" program obviously did little to address.
  • Moreover, the growing list of convictions in recent years, along with the numerous convictions for failure to comply with terms of recognizance, suggest that Mr B. has not been responding well to more modest and incremental punishments and restrictions previously imposed upon him.
  • All of this suggests that more needs to be done in the way of specific deterrence, in order to help bring home to Mr B., in a more profound way, the seriousness of his conduct, and make more targeted counselling of aggression and anger management a focus of any rehabilitative component of sentencing.

MITIGATING FACTORS

[45] As for mitigating factors, in my view, there are such considerations here, in relation to the sentence to be imposed on Mr B., which include the following:

• i. First, there is of course Mr B.'s guilty plea, for which he deserves credit. In that regard:
  • At the very least, that plea saved court time and expense, and spared C.T. from having to testify in relation to this matter; e.g., in relation to such private and sensitive matters such as how the photographs came to be taken, and how she accordingly knew Mr B. was behind the fake Facebook profile.
  • The guilty plea also spared Ms T. from the prospect of Crown counsel having to call Ms T.'s colleagues, family and/or friends to testify about the intimate photographs coming to their attention, in order to establish the essential element of publication.
  • As a demonstration of contrition and remorse, acceptance of responsibility and insight into his behaviour, the significance of Mr B.'s guilty plea is undermined somewhat by the Crown's very strong case against Mr B., (given that he unquestionably was the person who took the intimate photos in the first place, on his personal device, and accordingly must have been involved in their publication to others), such that a guilty plea arguably was, to some extent, a concession of the inevitable rather than a reflection of remorse. Moreover, that inference is buttressed by indications in the presentence report that, despite his guilty plea, Mr B. initially did not really accept responsibility for the crime that brings him before me now. In particular, during discussions with the author of the pre-sentence report in the fall of 2017, Mr B. not only denied responsibility for his actions, but placed the blame on C.T. and another ex-girlfriend for allegedly provoking his actions. Such an outlook seems consistent with reports that, while on community supervision from November of 2016 to May of 2017, Mr B. continued to demonstrate a negative attitude towards his criminal conduct, blame his victims for his behaviour, and failed to recognize that he has problems with aggression, despite his prior completion of a "Changing Ways" program.
  • On a more positive note, however, Mr B. belatedly now seems to have gained much more insight into his behaviour, and appears to be demonstrating greater acknowledgment of responsibility and remorse for his past criminal behaviour, and what he has done to C.T. in particular. For example:
    • In his aforesaid letter to me, Mr B. candidly acknowledged that, when he was interviewed for the presentence report several months ago, he admittedly did not take responsibility for his conduct and blamed others. He says he did so because he felt that he had been "provoked", and that the alleged provocation somehow excused or justified his actions. However, his letter goes on to say that, with the support and encouragement of his current partner and fiancé, he has approached the matter with more empathy; i.e., looking at the matter from Ms T.'s perspective, thinking about how he would feel if someone had done something similar to him or someone close to him, and reviewing cases provided by counsel speaking to the serious impact on victims who have suffered from such crimes. Having done so, Mr B. says he now has learned from his experience, accepts full responsibility for his conduct, acknowledges that he alone is to blame for what happened, knows that there is no excuse for it, and wants to apologize to C.T. for his behaviour and the pain he has caused. He says he is determined never to do such a thing again.
    • Such feelings and intentions were echoed in Mr B.'s direct comments made pursuant to s.726 of the Code, which included expressions of remorse, acceptance of responsibility, and apologies made to Ms T.
    • Mr B.'s gaining of such insight, and how that came about, are echoed in the comments of his current partner and fiancé, Ms E., in her letter to me.
• ii. A second mitigating consideration is the extensive network of familial and community support Mr B. enjoys, which normally bodes well for rehabilitation. In addition to the ongoing support of his mother, stepfather and fiancé, the very strong letters of support tendered by friends and neighbours, including a number who work in the justice system, emphasize that Mr B. clearly is capable of well-mannered and thoughtful kindness, consideration and other pro-social behaviour -- even if none of those qualities were on display in the misconduct he directed towards C.T. Those friends and neighbours describe Mr B. as someone who is very friendly, personable, polite, respectful, caring, proactively helpful and supportive, courteous, positive, sincere, trustworthy, decent, excellent with children, actively involved in the community, and a highly valued neighbour. They see him as someone who is motivated to do better, committed to working hard and succeeding, and enthusiastic about skills and interests which he freely shares with others. Those tendencies are reflected in Mr B.'s sustained pro-social work ethic and performance, and his apparent determination to work hard at advancing to positions of greater responsibility, if given the uninterrupted opportunity to do so.
• iii. A third and related mitigating consideration, in my view, is the reality that Mr B. and his partner Ms E. are in a committed and stable relationship now devoted to the imminent birth of a child, and the formation of a new family unit. As noted above, Ms E. already has proved to be a positive influence on Mr B., and responsibility for a dependent infant, in his immediate care, seems bound to give Mr B. much greater incentive to avoid further involvement with the criminal justice system – particularly if incarceration would jeopardize his ability to maintain employment and provide uninterrupted financial support for his wife and newborn child – as well as the older child not in his immediate care.
• iv. A fourth mitigating consideration relates to the stringent and restrictive bail conditions to which Mr B. has been subjected during the period leading up to this sentencing. In that regard:
  • Defence counsel submitted, and Crown counsel did not dispute, that beyond time spent by Mr B. in formal custody in relation to other offences, Mr B. has spent considerable periods of time before sentencing under restrictive bail conditions related to the offence that brings him before me now.
  • Pursuant to authorities such as R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555 (C.A.), at paragraph 37, and R. v. Dragos, 2012 ONCA 538, [2012] O.J. No. 3790 (C.A.), at paragraph 71 and 84, this is a relevant mitigating factor which must be considered in determining the length of sentence, with some "amount of credit to be given for time spent on bail under house arrest". However, the amount of credit to be given is within my discretion. In particular, while I must consider such factors as the nature and duration of such pre-sentence restrictions, the impact on the liberty of Mr B., and his ability to carry on normal relationships, employment and other activity, there is no formula I am required to apply in determining the appropriate amount of credit that should be given.
  • In this case, I simply note the following:
    • Conditions of release imposed on Mr B. have been something of a moving target in terms of their duration and nature. For example, the material before me indicates certain terms and conditions of interim release were imposed in December of 2015, while others apparently were imposed in September of 2017 and/or January of 2017. Moreover, not all of those restrictions were imposed solely because of the s.162.1 charge and conviction that brings Mr B. before me now.
    • During periods before sentencing for this offence, it seems that Mr B. nevertheless clearly has complied with terms and conditions restricting his liberty. (Again, the failure to attend court on April 3, 2018, has been explained to the satisfaction of Crown counsel and the court.) Those restrictions certainly fell short of complete "house arrest", insofar as Mr B. was permitted to leave his residence under certain conditions, (e.g., so long as he was in the company of one or more of his numerous sureties), or for certain enumerated purposes, (e.g., court appearances, appointments with legal counsel, medical and dental appointments, attending at his place of employment, religious observance, and limited hours of playing league ice hockey on Wednesday evenings and Sundays). However, he unquestionably has been required to live with his mother and stepfather, and has been subject to restrictions on his liberty and freedom of movement, such as curfews, as well as the ongoing supervision of his "constructive jailors". In addition to contact and weapons prohibitions, and terms prohibiting his attendance at certain locations, various other terms and conditions have included restrictions on his ability to use the internet and devices capable of connecting him to the internet.

PRECEDENTS

[46] In addition to such case specific aggravating and mitigating factors, I also have regard to suggested precedents, to which I have been referred by counsel.

[47] I do because, as noted above, one of the fundamental principles of sentencing, as emphasized in s.718.2(b) of the Code, is that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[48] The reality, of course, is that no two cases are exactly alike, and as emphasized by Chief Justice Lamer in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at paragraph 92:

Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

[49] However, as indicated earlier, I was supplied with numerous authorities by Crown and defence counsel, as suggested benchmarks and points of comparison for fashioning of an appropriate sentence for Mr B.'s offence.

[50] Perhaps reflecting that s.162.1 is a relatively new offence, the authorities presented by both sides contained only a single decision of the Superior Court of Justice focused on s.162.1 per se; i.e., R. v. Agoston, supra. Instead, the precedents to which I was referred included numerous provincial court decisions addressing the s.162.1 offence, (none of which are binding upon me), earlier decisions relating to related offences of voyeurism or criminal harassment, or decisions submitted because of their reference to more general principles and observations applicable to such crimes.

[51] Authorities to which I was referred by Crown counsel included the following:

• In R. v. Wenc, 2009 ABCA 328, [2009] A.J. No. 1075 (C.A.), the Alberta Court of Appeal dealt with the Crown's appeal of a sentence imposed on a 37-year-old first time offender. After meeting online, the offender and his former male partner had been involved in a sexual relationship for approximately a year. When it ended, the offender embarked on an 18 month campaign of extensive harassment, including hundreds of threatening and sexually suggestive emails, widespread fax circulation of nude photographs of the complainant to his friends and relations in various locations across Canada, and the posting of fake profiles on social-networking sites, on which the offender posed as the complainant, posted nude photos of the complainant, entered internet "chat rooms" pretending to be the complainant, and invited strangers to come to the complainant's house at all hours of the day and night with the expectation of sexual encounters. The content of the offender's communications included false accusations that the complainant was HIV positive and spreading HIV. Police interviews and warnings failed to deter the offender, who stopped abusing the complainant only after being arrested. The complainant was charged with criminal harassment. (The underlying conduct predated enactment of the s.162.1 offence by several years.) The matter was before the court for several years before the offender finally entered a guilty plea. By then, he was in a new and stable relationship, and steadily employed. Aggravating factors considered by the sentencing judge included the planned, deliberate, insensitive and cruel nature of the misconduct; its duration; the fear and humiliation caused to the complainant; and the lack of insight displayed by the offender, who continued to minimize his involvement and blame his victim. Mitigating factors included the absence of a criminal record and the guilty plea – although the impact of the latter was diminished by its timing. At first instance, the judge imposed a sentence of 90 days, to be served intermittently. On appeal, the Alberta Court of Appeal found that the sentence imposed fell outside the appropriate range of 9-24 months imprisonment for such persistent, prolonged, sophisticated and vindictive harassment, which had exposed the complainant to danger from strangers, and substituted a sentence of 12 months imprisonment.
• In the 2011 case of R. v. Desilva, supra, the Ontario provincial court was obliged to deal with a 34-year-old offender who surreptitiously had made a sexually explicit video recording of his girlfriend, without her knowledge, during the course of their relationship. When the relationship "went sour", the offender posted the video to a Facebook page newly created for the purpose, and then sent 13 mutual friends and members of the complainant's family, whose respect was extremely important to the complainant, an email inviting them to view the video. The video also was attached to his emails. Although the video had been deleted by the time of trial, expert evidence confirmed there were legitimate concerns about potential wider circulation. The offender's conduct predated the enactment of s.162.1, expressly dealing with publication of an intimate image without consent, but the offender was charged with voyeurism contrary to s.162 of the Code, (along with other offences such as criminal harassment), and found guilty after a lengthy trial. It is not clear from the decision whether the Crown proceeded summarily or by way of indictment. At the time of sentencing, the offender had been subject to strict bail terms of a lengthy period of time. However, while acknowledging that what he had done was inappropriate and illegal, the offender still lacked insight into what he had done and empathy for his victim, opining that the incident somehow had been "blown out of proportion". Emphasizing the offender's breach of trust, the harm done to the complainant, (including the potential for further republication), and the deliberate planning and effort that went into the offender's actions, the court expressly rejected defence suggestions of a suspended or conditional sentence, and imposed a sentence of 5 months in relation to the voyeurism charge, followed by two years of probation.
• In R. v. Korbut, [2012] O.J. No. 5285 (O.C.J.), the offender was a mature orthopedic surgeon who embarked on an extra-marital affair with the complainant. (His specific age is not mentioned, but at the time of sentencing, he was old enough to have a 21-year-old daughter as well as a six month old son.) During the course of the relevant affair, the offender and the complainant created a number of intimate photographs and videos of the complainant, naked and engaged in sexual activities, on the understanding they would not be shared with anyone else. When the relationship ended badly, the offender stole the complainant's diaries, address book and cellular phone, and used the information they contained to publish highly embarrassing texts and website links to numerous sexually explicit photos and videos of the complainant which he had placed on the internet. The offender sent such content to 20-30 of the complainant's friends, family, associates and acquaintances, (including various members of her church community), along with the complainant's maiden name. He also sent the content to the complainant's new partner, and created a fake "dating profile" in the complainant's name, including naked photographs of the complainant, contact information, and indications that she wanted to have sex "several times a day". That in turn resulted in men calling her late at night to introduce themselves and ask for meetings, as well as a late night attendance by one man knocking at her door. The offender's conduct predated the enactment of s.162.1, expressly dealing with publication of an intimate image without consent, and the offender instead was charged with theft and criminal harassment, in respect of which the Crown chose to proceed summarily. The offender was found guilty of both crimes after a trial, during which he was unable to restrain his scornful attitude towards the complainant. Following his convictions, the offender still lacked insight into his conduct, which was characterized as "deliberate, callous and vindictive", and was noted to have had an "unquantifiable", profound and devastating impact on the complainant's reputation, pride and sense of self-worth. By way of mitigating considerations, however, numerous letters and character references indicated substantial family and community support for the offender, emphasizing that his crime was completely "out of character", in that he had a solid community reputation for being honourable, reputable, family-oriented, respectful, polite and helpful. Such reports effectively were supported by the absence of any criminal record whatsoever. Given the offender's ongoing status as a health care professional concerned for his reputation, and reconciliation with his wife, the likelihood of further offences seemed remote. Moreover, formal incarceration effectively would punish the offender's family as well, (including the offender's infant son), as they looked to him as their sole source of support; a factor which the court expressly emphasized as a "significant" consideration in relation to sentencing. Another "significant feature" emphasized by the sentencing judge was the Crown's decision to proceed summarily, which effectively capped the maximum possible sentence at six months. In the result, the court imposed such a sentence, but deliberately made it a "blended" one involving 3 months of formal incarceration and 3 months of conditional sentencing with terms tantamount to "house arrest". In that regard, the court expressly held that allowing the offender to serve the entire six month sentence by way of a conditional sentence was an "inadequate response to the profoundly damaging impact" of his conduct on the complainant.
• In the 2014 case of R. v. Dewan, supra, our Court of Appeal was called upon to deal with a situation bearing similarities to the one before me, albeit one predating enactment of the s.162.1 offence of publication of an intimate image without consent. The offender in that case had, in relation to a co-worker rejecting his romantic advances, distributed an email purportedly from her to nine colleagues, degrading the co-worker professionally, sexually and physically. When the offender's former partner also rebuffed his persistent contacts, the offender sent a similar email in relation to that former partner, purporting to be her, attaching a naked photograph of that former partner. In a determined attempt to humiliate that former partner, the offender sent the email and its attached naked photograph of the former partner to her employer, condominium property manager, condominium doorman, and neighbours living on the same floor of her condominium. At first instance, the offender had entered guilty pleas to one count of mischief and one count of criminal harassment. Including presentence custody, the sentencing judge imposed an effective sentence of five months. Dismissing an appeal from sentence, (including the offender's request for substitution of a conditional discharge at that point, so as to avoid the creation of a criminal record effectively ending any possibility of the offender's desired career in the regulated financial industry), our Court of Appeal emphasized that the offender's actions were calculated, and had a devastating impact on the former partner's life. Notwithstanding the offender's positive prospects and five months of time served, our Court of Appeal emphasized that the crimes in question were serious, and that more serious denunciation than a conditional discharge was required in the circumstances, as "intimate partners must be free to terminate a relationship without fear of abuse, whether physical or psychological, or retaliation of any kind".
• In the 2016 case of R. v. Trinchi, 2016 ONSC 6585, supra, this court dealt with a first time offender who was 42, university educated, a high school teacher, and a divorced father of two young daughters. During the course of an intimate relationship in 2011, the offender and the complainant engaged in "Skype" conversations, during which the complainant posed nude in sexually provocative ways, exposing her breasts, as well as her vaginal and anal regions. She thought the video was being "live streamed", and not recorded in any way. Without her knowledge, the offender took and retained a number of "screen shots". When the relationship ended, the offender, posing as the complainant, sent a series of emails to her professional colleagues, friends and family, as well as contacts of her current romantic partner, attaching the intimate images and falsely indicating that the complainant and her current partner were interested in "opening up" their relationship to include other parties. No doubt owing to the date of the misconduct, which predated the enactment of s.162.1, the offender was charged with voyeurism, (contrary to s.162 of the Code), rather than publication of an intimate image without consent. The Crown proceeded by way of indictment, and the offender was convicted after trial. In the meantime, he had been suspended without pay from his teaching position, and the Ontario College of Teachers was awaiting the outcome of the sentencing hearing to determine the future status of his teaching certificate. Numerous letters of support emphasized that the offence was out of character, and consistently described the offender as responsible, trustworthy, reliable, a good teacher, and a good father. By the time of sentencing, the offender already had been subjected to four years of very restrictive bail conditions, in addition to five days of actual pretrial custody, and the dispute between Crown and defence counsel was limited to whether the formal sentence to be imposed at that point should include registration of a conviction, (as sought by the Crown), or a conditional discharge, (as sought by the defence). Emphasizing the need for a sentence that reflected "society's revulsion" at the offender's conduct, the profound and lasting impact on the offender's victim, and the need for general deterrence "to clearly illustrate to any other like-minded individuals that such behaviour will attract serious and significant sanctions", the court expressly rejected the adequacy of a conditional discharge. It registered a conviction, and imposed a suspended sentence with 12 months of probation.
• In the 2016 case of R. v. Ly, supra, the Ontario provincial court dealt with a youthful first time offender who had victimized three complainants, with whom he previously had intimate relationships. He did so by posting, to pornographic websites, video recordings of the complainants engaging in intimate sexual activities. Some of that video recording had been surreptitious, while other recording had taken place with the relevant complainant's knowledge and consent, on the understanding the recording would not be shown to others. When each of the relationships ended, the offender threatened to post the videos to the internet, before doing so. As each complainant became aware of the posted recordings relating to her, she went to the police, and the offender admitted his guilt and apologized – albeit only to the extent of the postings known to the police. The full extent of the offender's postings became known only over time. The Crown proceeded by way of indictment. Following guilty pleas, two of the complainants filed victim impact statements describing the devastating impact the offender's conduct had on their lives, while the third complainant was unable or unwilling to do so. Other aggravating factors included the planned and deliberate nature of the offender's conduct, (after the making of threats and in the face of multiple warnings as to the consequences of such actions), his inclusion of complainant identification in the internet postings, his repetition of the same conduct in relation to multiple victims, and lack of insight into his misconduct. (Despite his guilty pleas, there were indications that the offender lacked insight into his conduct, believing the humiliation he had experienced following news of his arrest and release of his "mugshot" was comparable to what the complainants had experienced.) Mitigating considerations included his guilty pleas, his status as a first time offender, the offender's cooperation with police, his loss of employment as a security guard because of his conduct, the fact his mother was dependent on the offender for support, and 16 months of restrictive presentence terms of release effectively placing the offender under house arrest. In its decision, the court openly acknowledged that the relatively recent enactment of the s.162.1 offence left the court without precedents establishing a range of appropriate sentencing, and that it was guided by the general agreement of counsel that an appropriate length of sentence would be 12 months of formal incarceration, (as sought by the Crown), or a 13-16 month conditional sentence sought by defence counsel. In the result, the court expressly rejected the adequacy of a conditional sentence to address the goals of denunciation and deterrence, and imposed a custodial sentence of 12 months followed by 2 years of probation, along with a DNA order.
• In R. v. B.H., [2016] O.J. No. 7080 (O.C.J.), the Ontario provincial court was dealing with an offender who was a university graduate of unspecified age. It is not entirely clear from the decision whether the Crown had proceeded summarily or by way of indictment, although the latter seems likely given some of the court's later comments about the applicable range of sentencing. The offender had been in a long term relationship with a female partner, in respect of which marriage and children had been contemplated. However, without his partner's permission, he surreptitiously took intimate photographs of her, and video recordings of her having sex, and posted them to an "amateur porn" website. Although videos posted to the website supposedly were encrypted and required a password, the accused had sent the relevant website link and password to numerous friends. The offence to which the accused actually pled guilty is not entirely clear from the reported decision. In particular, although the provincial court judge refers to a guilty plea in relation to s.162.1, (publication of an intimate image without consent), and the circumstances would support such a conviction, the reasons also say the offender had pled guilty to "voyeurism", (which instead is dealt with by s.162 of the Code), and the court goes on to mention cases involving voyeurism. By the time of sentencing, the offender had done everything in his control to mitigate his actions, by assisting with the removal of material from the relevant website, providing the complainant with his access codes, and communicating with the website managers to confirm the complainant's lack of consent. He also had participated actively in personal and group counselling, and undergone a voluntary professional Sexual Behaviours Assessment. In the result, the court sentenced the offender to 90 days incarceration, (the maximum of the 30-90 day sentencing range proposed by Crown counsel), followed by 12 months of probation. However, in imposing that sentence, the court emphasized the "sole reason" for doing so was Crown counsel's submission that the maximum sentence should be 90 days, which no doubt had been considered by the offender in pleading guilty. It seems quite clear from the court's comments that a longer custodial sentence would have been imposed, had that been requested by the Crown. Indeed, the court opined that 90 days of incarceration was "at the very low end of the range" for a s.162.1 offence.
• In the 2017 decision of R. v. A.C., supra, the Ontario provincial court was dealing with an offender who was a 32 year old college graduate with no criminal record. He uploaded, to various websites on the internet, intimate photographs and videos of his identifiable former girlfriend and victim, along with her first and last name. The images depicted the victim naked and having sexual intercourse, and were revealed to anyone performing an ordinary "Google search" of her name. Despite attempts to remove the images after police became involved, they remained available on line. Expressly rejecting defence suggestions of a suspended or conditional sentence, the court imposed a sentence of five months imprisonment, and 12 months of probation. In doing so, however, the provincial court judge apparently felt constrained from imposing a lengthier sentence by the Crown's decision to proceed summarily; i.e., with the court noting that doing so had capped the maximum sentence available to six months, and that the judge felt obliged to take a month off that maximum possible sentence in order to give some recognition to the offender's guilty plea. In the situation before me, I am not bound by similar constraints.
• In the 2018 case of R. v. J.S., supra, decided early this year, the Ontario provincial court was dealing with a 36-year-old first time offender. During the course of an intimate relationship with the complainant, the offender had made numerous video recordings of the complainant engaged in sexual activity. Initial recordings were made with her consent, on the understanding they would be shown to no one else. However, when the complainant expressed discomfort with such recordings, and indicated that she wanted them to stop, the offender continued to make such recordings surreptitiously. He also began posting such recordings to the internet, including indications of the complainant's full name. He continued to do so after the complainant had learned what was happening, and asked the offender to stop and remove all such postings from the internet. He not only never did so, and also continued to post more videos to the internet. He also went further, posing as the complainant to create an illicit website posting advertising her sexual services as an escort. In the result, more than 11 videos of the complainant having sex, and all bearing the full name of the complainant, were posted on the internet. Several of them had been viewed more than 10,000 times. The website postings and bogus escort advertisement prompted as many as 300 calls or messages a night, and sexual overtures via Facebook from as far away as the Netherlands. All of that had a devastating impact on the complainant. Along with feelings of loneliness and self-loathing, she suffered from depression and anxiety, among other professionally diagnosed psychiatric conditions, and attempted suicide on several occasions. As for the offender, in addition to being a first time offender, with no criminal history whatsoever, (despite an addiction to illicit drugs), he was gainfully employed, and family and friends tendered several letters of support emphasizing that he was compassionate, helpful, decent, supportive and community oriented, with a marked and prolonged pattern of service to others. Although he had struggled with mental health issues and addiction, the court emphasized that the offence was calculated and deliberate, and not one driven by impulse. Pursuant to a joint submission, the court imposed a custodial sentence of 18 months, to be followed by 3 years of probation.

[52] In addition to decisions emphasizing general principles relating to the imposition of conditional sentences and the court's broad discretion relating to sentencing, such as R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, authorities to which I was referred by defence counsel included the following:

• In the 2016 case of R. v. Zhou, supra, the Ontario provincial court was dealing with conduct by a young first time offender that predated introduction of s.162.1 of the Code, although the court made reference to the increasing prevalence of intimate images being circulated without consent, and the introduction of that new offence. The offender and the complainant had been in a romantic relationship for five years that began when they were teenagers. When he was 19 and the complainant was 17, he convinced her to participate in the taking of nude and semi-nude photographs, and to post them initially to a private "Tumblr" account for their private viewing. However, without the complainant's knowledge, the offender then posted the photos to a pornographic website, inviting viewer comments which he monitored. His motivation apparently was "bragging" about his girlfriend, rather than vengeance or any deliberate intention to harm the complainant. In the result, however, the photos were online for two years, and were viewed at least 1,333 times before the complainant discovered them. The impact on the complainant was devastating. Unable to leave her room or attend school, she engaged in self-destructive behaviour, and continued to suffer from profound feelings of depression, anxiety, terror, betrayal and distrust. The complainant contacted the police, which led to arrest of the offender and execution of a search warrant. The offender originally was charged with offences that included possession and distribution of child pornography. Eventually, the offender, 23 at the time of sentencing, pled guilty to one count of criminal harassment. Aggravating considerations included the fact that the offender's conduct was planned, deliberate and prolonged; that he fully intended the photos to be widely distributed; and that he protected his own identity while the complainant was clearly identifiable in the photos. Mitigating circumstances included his status as a youthful first time offender; his immediate acceptance of responsibility and apology; a guilty plea despite complex Charter challenges that had been advanced; strong family support; the fact that the offender had a promising career as a talented young pianist; 14 months of restrictive bail conditions; the devastating stigma the offender himself already had experienced in the school and broader community in the wake of being charged with possession and distribution of child pornography; and the reality that the offender's potential for a career in the arts already would be negatively affected by his criminal harassment conviction. The offender had spent 4 days in actual presentence custody, or the effective equivalent of six days after enhanced credit on a 1.5 for 1 actual day basis. In the result, the court saw fit to impose a suspended sentence, (i.e., effectively imposing a custodial sentence of 6 days), together with 12 months of probation.
• In the 2016 case of R. v. P.S.D., supra, the provincial court of British Columbia issued what may very well have been the first reported sentencing decision dealing with the relatively new offence created by the enactment of s.162.1 of the Code. (Indeed, both Crown and defence counsel confirmed there were no other reported s.162.1 sentencing decisions available at the time.) The situation involved a 22-year-old first time offender. He and the equally youthful complainant had been in a "mostly hidden" but volatile and dysfunctional "on again / off again" relationship that began when they were teenagers. During one particular evening rendezvous, there was an incident which left both the offender and complainant with physical injuries. During the course of that incident, the offender used his cellular phone to take photos of the complainant, without her knowledge or consent, while she was only partially clothed in a car. The photos depicted portions of the complainant's bare breasts. The offender then sent some of the photos to two friends, with instructions to save the pictures, as he intended to use them to cause the complainant emotional harm. The offender was arrested and charged in relation to the incident, not only with a s.162.1 offence but significantly more serious charges as well. Despite the charges, and non-contact provisions of the offender's interim release, the offender and complainant continued to have contact with each other. The complainant initiated and/or was complicit in that regard. All charges proceeded to a trial, at which the complainant's credibility was seriously undermined. In the result, guilty pleas were entered in relation to a s.162.1 offence and a breach of recognizance. Aggravating considerations included taking of the photos without the complainant's consent. However, there were numerous mitigating considerations, including the youthful status of the offender, the lack of a criminal record, a positive background, strong family and community support, acceptance of responsibility and the entry of a guilty plea at the first realistic opportunity. It was also emphasized that sending of the photos was done without planning in a moment of rash frustration, that the poor quality of the photos was such the complainant was not really identifiable, and that a "relatively low level of harm" had occurred – which seems reflected in the complainant's willingness to continue seeing the offender. The offender already had spent the equivalent of three months in presentence custody; i.e., 60 days actual custody, with enhanced credit at the rate of 1.5 days for each actual day. In the result, the court saw fit to impose a suspended sentence, (i.e., an effective custodial sentence of three months already served), and two years of probation including non-contact provisions.
• In the 2017 case of R. v. Calpito, supra, the Ontario provincial court was dealing with a youthful first time offender who was 21 at the time of sentencing, and 19 or 20 when he distributed seven nude photographs of the complainant, his former girlfriend, through Instagram, a social media site. The photographs had been taken, with the complainant's consent, during the course of a three year romantic relationship that began in high school. However, when the relationship ended, after the offender and complainant had gone to university in different cities, the offender threatened to post copies of the photos on line, and send them to the complainant's mother, unless she spoke with the offender. The police were contacted and spoke with the offender, but took no further action. Several months later, the offender, wanting revenge, sent the photos to the complainant's university friends and to her summer employer and co-workers – although the court noted that the photos had been circulated by the offender only once, "amongst a rather small number of people", and depicted the complainant while naked but not engaging in any sexual activity. The impact on the complainant's life was nevertheless traumatic. She became fearful of how people looked at her, no longer trusted others, failed a number of her university courses, and no longer felt comfortable there. She felt unable to return to her summer job, and also feared returning to the small community where she and the offender were from. She also feared further publication of additional photos she knew to be in the offender's possession. When arrested and charged, the offender immediately provided an inculpatory statement to the police, thereafter repeatedly expressed remorse for his conduct, and appeared to fully appreciate the impact that the offence had on the complainant – although he committed a further offence in attempting to contact the complainant directly in breach of an undertaking. The offender entered guilty pleas in relation to the s.162.1 offence and breach of undertaking. The offender's parents were disappointed by his conduct but close and supportive, as were numerous friends who had stood by him. In the result, the court saw fit to impose a conditional discharge, coupled with onerous conditions for a three year period of probation, including terms involving a combination of house arrest and probation for the first six months.
• In the 2017 case of R. v. Agoston, supra, (the only superior court sentencing decision relating to s.162.1 to which I was referred), this court was required to deal with an offender who received two photographs on his cellular phone from the daughter of a family friend, one of which showed her vagina. The offender showed the image to two of his co-workers before deleting the images shortly thereafter. The offender entered a guilty plea. The court chose to impose a conditional discharge and 12 months of probation. In my view, however, the circumstances of that case were quite different from the situation before me. In particular, in that case, unlike the one before me:
  • there was nothing in or accompanying display of the relevant intimate images to identify the complainant to those, beyond the intended recipient, to whom the images were shown;
  • the images in question had not been the subject of distribution via the internet to anyone but the intended recipient;
  • beyond the offender, (the intended recipient), the intimate photos had been shown only to two persons, neither of which had the ability to save or forward the images;
  • the images in question had been deleted;
  • the case involved a somewhat spontaneous and impulsive display of the relevant images to co-workers, with no planning or deliberation on the part of the offender;
  • the offender immediately displayed remorse and contrition for what had happened;
  • the offender in that case had no criminal record whatsoever; and
  • the offender was obliged to raise numerous children on his own when their mother abandoned the family, still had numerous children to support in addition to a new partner, and the imposition of a criminal record would not only threaten his continued employment and ability to support all those dependents, but also impose severe restrictions on the offender's ability to participate in numerous activities with his children.

ASSESSMENT

[53] Having reviewed and considered such precedents, I now turn to the task of determining an appropriate and fit sentence for Mr B.

[54] In doing so, I frankly found the available precedents to be less than helpful, insofar as most are capable of being arguably or readily distinguishable for various reasons.

[55] For example, I think the court should be wary of reliance, in sentencing an offender for a conviction pursuant to s.161.2 of the Code, on earlier sentencing precedents relating to charges of voyeurism and/or criminal harassment. In my view, the relatively recent enactment of s.161.2 of the Code reflects Parliament's view that there was a growing social concern about the specific phenomenon of intimate image publication without consent, and a need to address that concern in a more targeted and serious manner, with more pronounced denunciation and deterrence.

[56] The newly created offence may not be a crime that leaves visible scars or injuries but, all the same, it clearly has the demonstrated potential to destroy the lives of its victims.

[57] In my view, and with respect, many of the non-binding provincial court precedents to which I was referred seem inadequate responses to the need for appropriate denunciation and deterrence, especially if the offences in question were prosecuted by way of indictment.

[58] Moreover, there is also the ever-present reality that most if not all precedents are capable of being distinguished on their facts, in both aggravating and mitigating ways, and that is true of the case before me.

[59] For example, in contrast to a number of the cases to which I was referred, Mr B. is neither a youthful nor first time offender, and he actually has a number of prior convictions for similar misconduct; i.e., criminal harassment. He did not engage in an isolated act of publication, and his conduct clearly was vindictive, insofar as his primary purpose was the infliction of deliberate harm on his victim. Unlike a number of cases to which I was referred, Mr B.'s publication of intimate images clearly identified his victim to all those who might view the images.

[60] On the other hand, I am mindful of certain realities which, if not "mitigating" considerations per se, at least suggest reasons why Mr B.'s misconduct may call for a less severe sentence than those imposed in other situations. For example:

• The relevant intimate images Mr B. published were still photographs rather than video recordings.
• The relevant images were not made generally available on the internet, to be viewed and perhaps stored and republished by an indeterminate number of unidentified and unidentifiable persons. They were instead published to a limited and identified set of 96 individuals, who were required to take additional steps, (including active acceptance of a "friending" request), to view the images. It is not clear to me that matters progressed to the point of all 96 of the targeted recipients taking such added steps to actually view the relevant images before the opportunity to do so effectively was prevented by deletion of the relevant facebook profile.
• On a related note, it seems the relevant images do not remain on the internet. Moreover, while any such internet publication gives rise to the indeterminate possibility of someone saving and republishing such intimate images, it seems to me that there is good reason to hope or expect that the possibility of such further harm will be limited in this case. Again, the images were not sent to strangers with no interest whatsoever in Ms T.'s welfare, but to friends, family, co-workers and employers inherently supportive of Ms T. While that targeted circulation undoubtedly and understandably heightened Ms T.'s sense of embarrassment, it seems to me that such inherently supportive persons are less likely to retain or republish intimate photographs of their relative, friend, co-worker or employee, realizing how invasive and hurtful that would be.

[61] Having regard to all the circumstances, I have no doubt that Mr B.'s misconduct merits serious and meaningful punishment sufficient to address the paramount concerns of denunciation and deterrence in relation to such an offence.

[62] In that regard, a central concern I have wrestled with is whether those principles of sentencing, and the other fundamental purpose and principles set forth in sections 718 to 718.2, effectively demand imposition of a custodial jail sentence, or whether they can be adequately addressed by a conditional sentence as suggested by defence counsel.

[63] Pursuant to s.742.1 of the Code, the pre-conditions for imposition of a conditional sentence are as follows:

• i. the court must be satisfied that service of the sentence in the community would not endanger the safety of the community, and be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, which I have outlined above;
• ii. the offence must not be one subject to a mandatory minimum term of imprisonment;
• iii. the offence must not be one which, when prosecuted by indictment, has a maximum term of imprisonment of 14 years or life;
• iv. the offence must not be a terrorism offence or one involving a criminal organization for which the maximum sentence is 10 years or more;
• v. the offence must not have been one involving a maximum sentence of 10 years which resulted in bodily harm, or involved drugs or the use of a weapon; and
• vi. the offence must not be one specifically excluded from the ambit of conditional sentencing by the provisions of s.742.1(f) of the Code.

[64] In the circumstances before me, there is no question that the last five of those six preconditions to a conditional sentence are satisfied.

[65] Moreover, in relation to the first precondition, I am satisfied that service of Mr B.'s sentence in the community would not endanger the safety of the community at large. His offence targeted a specific known victim, and was motivated by vengeance directed towards that victim.

[66] Again, the real question, in my view, in relation to possible imposition of a conditional sentence, is whether such a disposition would be consistent with the fundamental purpose and principles of sentencing, so as to satisfy the demands of s.742.1(a) of the Code.

[67] The principles to be applied in making such a determination have been considered in a number of Supreme Court of Canada decisions, such as the leading case of R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, as well as R. v. R.N.S, 2000 SCC 7, [2000] 1 S.C.R. 149, and include the following:

• A conditional sentence is intended to address both punitive and rehabilitative objectives, and therefore generally should include punitive conditions that restrict an offender's liberty. Conditions such as house arrest or strict curfew should be the norm.
• Concern for the safety of the community is merely one of the prerequisites for imposing a conditional sentence and is not the primary consideration.
• A conditional sentence is available for all offences in which the statutory prerequisites are satisfied. There is no presumption that conditional sentences are inappropriate for specific offences. Nevertheless, the gravity of the offence is clearly relevant to determining whether a conditional sentence is appropriate in the circumstances.
• There is also no presumption in favour of a conditional sentence if the prerequisites have been satisfied. However, serious consideration should be given to the imposition of a conditional sentence in all cases where the statutory prerequisites are satisfied.
• A conditional sentence can provide a significant amount of denunciation, particularly where onerous conditions are imposed and the term of the sentence is longer than would have been imposed as a jail sentence. Generally, the more serious the offence, the longer and more onerous the conditional sentence should be.
• A conditional sentence can also provide significant deterrence if sufficiently punitive conditions are imposed, and judges should be wary of placing too much weight on deterrence when choosing between a conditional sentence and incarceration – although there may be circumstances in which the need for deterrence will warrant incarceration.
• When the objectives of rehabilitation, reparation and promotion of a sense of responsibility may realistically be achieved, a conditional sentence will likely be the appropriate sanction, subject to considerations of denunciation and deterrence.
• While aggravating circumstances relating to the offence or the offender increase the need for denunciation and deterrence, a conditional sentence may be imposed even if such factors are present.
• Neither party has the onus of establishing that the offender should or should not receive a conditional sentence.
• In circumstances where either a sentence of incarceration or a conditional sentence would be appropriate, a conditional sentence generally should be imposed, even if it would be longer than the appropriate sentence of incarceration. There nevertheless may be circumstances in which a short, sharp sentence of incarceration may be preferable to a lengthy conditional sentence.

[68] In my view, having regard to all the circumstances of the case, and particularly the significant aggravating factors I have mentioned, a conditional sentence in the nature and duration suggested by defence counsel would not be proportionate to the gravity of Mr B.'s offence. Nor would it adequately fulfil the principles of general deterrence and denunciation which are paramount in such a case.

[69] In particular, when one factors in the numerous exceptions and progressive relaxations to house arrest suggested by defence counsel, the restrictions on Mr B.'s liberty would be relatively modest and short-lived. It is true that his freedom would be short of that enjoyed by most people. However, for several months of the suggested conditional sentence, Mr B. would in large measure be able to pass much of his days as many or most non-offenders do; i.e., spending early morning and evenings of workdays at home before going to sleep there, and devoting at least one day of each week-end to unrestricted personal outings and pursuits – such as the regular recreational hockey games which Mr B. clearly very much enjoys. For the balance of the conditional sentence, the suggested curfew effectively would just require Mr B. to sleep at home.

[70] In my view, such restrictions would not suffice to express adequate denunciation of this extremely serious, deliberate and vindictive breach of Ms T.'s privacy, with its inevitable and understandably devastating impact on Ms T.

[71] As for deterrence, I think it needs to be remembered that such offences frequently are committed by a perpetrator like Mr B., intent on such "revenge porn", uploading such intimate images onto the internet from home computers. Imposing what effectively amounts to intermittent confinement of a calculating and vindictive s.162.1 offender to his or her home, for a relatively brief period, primarily during hours when many people are at home in any event, seems an inadequate general deterrent in relation to such crimes.

[72] In short, I think the moral gravity of Mr B.'s offence requires the imposition of a meaningful denunciatory sentence which will deter others from such flagrant, deliberate and vindictive breaches of privacy that have such devastating consequences for their victims.

[73] For such reasons, I frankly was inclined to impose a custodial sentence similar to that suggested by the Crown.

[74] My feelings in that regard were buttressed by Mr B.'s numerous convictions for failure to abide by applicable terms of recognizance, (notwithstanding his more recent compliance with the terms of his judicial interim release), suggesting legitimate concerns about his long term ability to abide by imposed restrictions in the absence of adequate supervision.

[75] On further reflection, however, I think a conditional sentence, of more extended duration with more limited exceptions than the ones suggested by defence counsel, would be consistent with the fundamental purpose and principles of sentencing.

[76] I do not make that decision lightly.

[77] However, my overall impression is that Mr B. currently is on a positive and encouraging path, with strong incentives to keep moving in that direction. Society has an interest in denouncing and deterring people like Mr B., who engage in this type of conduct. But where the paramount principles of denunciation and deterrence can be met by an appropriate conditional sentence, Society also obviously has an interest in avoiding the negative long term consequences of significantly and unnecessarily disrupting demonstrably successful efforts at rehabilitation.

[78] For example, in this particular case, I think little good will come from effectively terminating Mr B.'s promising employment, frustrating Mr B.'s ability to provide for innocent dependents, separating Mr B. from the positive influence and incentives offered by his wife and newborn child, and placing Mr B. in an environment of prolonged negative influence – especially given his history of involvement with anger management issues and narcotics.

[79] Moreover, despite my concerns about probable compliance, the reality of a conditional sentence, which Mr B. obviously will need to bear in mind, is that any failure to abide by its conditions will result in Mr B. being brought back to court, with the serious possibility of his having to serve the remainder of his sentence in a formal institution.

[80] Having regard to all the circumstances, including the sentencing principles I have noted, the aggravating and mitigating considerations outlined above, and the precedents to which I have been referred, I think justice will be done in this case if Mr B. receives a custodial sentence to be served in the community, albeit of a longer duration than the institutional custodial sentence sought by the Crown, and subject to terms and conditions more restrictive than those suggested by defence counsel.

[81] In particular, I think the conditional sentence should have a duration of 16 months, generally confining Mr B. to the boundaries of his residential property, subject to limited exceptions that allow him to leave his residence:

• a. for the purpose of his continued employment;
• b. for medical emergencies and scheduled health and dental care appointments, including those associated with the birth of his child; and
• c. with prior written consent of his supervisor, for up to four additional hours per week to attend to personal affairs.

[82] Further details of the conditional sentence will be outlined during my formal imposition of sentence.

PROBATION

[83] In my view, that conditional sentence should be followed by a subsequent term of probation, and I agree a three year period of probation is appropriate to ensure the maximum duration of terms and conditions restricting and prohibiting Mr B.'s possible further interaction with Ms T.

[84] I think that also will have the salutary effect of encouraging Mr B. to keep on the positive path he now is on; e.g., by including terms allowing the probation officer to suggest and require programs of counselling that may be of assistance to Mr B.

[85] Further details of the terms and conditions of probation will be outlined during formal imposition of sentence.

ANCILLARY ORDERS

[86] I turn next to the matter of ancillary orders.

[87] Pursuant to section 737 of the Code, there must be an order requiring Mr B. to pay the mandated victim fine surcharge of $200 for his single offence, prosecuted by way of indictment. He will be given 60 days in which to pay that surcharge, being the maximum time for payment I currently am able to grant in the first instance, subject to possible later variation and extension.

[88] Given the nature of Mr B.'s offence, I also think it more than appropriate to impose an order, pursuant to s.743.21 of the code, prohibiting Mr B. from having any direct or indirect contact with C.T. during the custodial period of his sentence.

[89] I also think it appropriate to impose a Form 5.04 DNA order pursuant to s.487.051, as requested by the Crown. Having regard to Mr B.'s criminal record, the fact that he sought to employ anonymity to commit this further offence, and the reality that the taking of such DNA samples would have only a minimal impact on Mr B.'s privacy and security, I think such an order would be in the interests of the administration of Justice. Knowing that samples of his DNA are on record hopefully will provide Mr B. with further incentive to avoid criminal activity in the future.

[90] As for the possibility of a prohibition order pursuant to s.162.2 of the Code, offences such as those committed by Mr B. frequently have attracted an internet prohibition order. The argument for taking away an offender's internet privileges is compelling when, in committing his or her crime, the offender has abused that privilege in such a horrid and calculated manner. Having said that:

• I am mindful, as Crown counsel apparently was, of relatively recent observations by our Court of Appeal, in R. v. Brar, 2016 ONCA 724, [2016] O.J. No. 5143 (C.A.), at paragraphs 24 and 25, recognizing that, in modern society, internet prohibition orders have a significant impact on an offender. At least some form of access to the internet is simply unavoidable for innocent purposes such as accessing services, finding directions, and other commonplace activities such as corresponding with friends and family, finding employment, banking, reading the news and shopping. Moreover, internet increasingly forms a part of telephone services.
• In such an environment, it seems to me that an order preventing an offender of Mr B.'s age from having any access whatsoever to the internet is not merely preventative but also inherently punitive, and may very well create a serious impediment to long term rehabilitation and productive reintegration into society. While such orders may be appropriate in some cases, they should be avoided if more limited preventative restrictions, tailored to the situation, are possible and appropriate.
• In this particular case, Mr B. was able to commit his offence by abusing a social media networking site, and by exploiting the anonymity and lack of identity confirmation the internet facilitates. It seems to me that someone easily can survive in the modern world, using the internet, without participation in social networking facilities. Many people do. More to the point, in my view, Mr B. has forfeited his right to engage in such internet activities for a significant period of time, given the conduct displayed in this case. He also needs to be subjected to additional restrictions, in his use of the internet, ensuring that he properly identifies himself at all times. With that in mind, an order shall go pursuant to s.162.2 of the Code, for the next 20 years or such shorter period as may be directed by further order of the court, whereby the following restrictions shall be placed on Mr B.'s use of the internet:
  • While he shall be permitted to maintain an internet address, and thereby send and receive messages via the internet, he shall be prohibited from participating in Facebook, Instagram, Snapchat or any similar social networking facility on the internet.
  • Any internet address used by him, any website created by him, and all messages, advertisements, photographs or other material he directly or indirectly posts to or through any website or internet service must include his proper legal name in full; i.e., "J.B.".
  • He shall not possess, access, publish, distribute, sell, or otherwise make available or advertise, any images of C.T.
  • He shall not send any email or make any internet posting referring to Ms T.

FORMAL IMPOSITION OF SENTENCE

[91] With all of the above in mind, we will now proceed to formal imposition of sentence in relation to Mr B.

[92] Stand up please Mr B.

[93] For the reasons I have outlined, I am imposing a custodial sentence of 16 months, to be served in the community, (i.e., qualified house arrest pursuant to a conditional sentence order ), under the following terms and conditions:

• The compulsory conditions mandated by s.742.3(1) of the Criminal Code, namely:
  • To keep the peace and be of good behaviour;
  • To appear before the court when required to do so;
  • To report to a supervisor within two working days of my making this conditional sentence order;
  • To remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or your supervisor; and
  • To notify the court or supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.
• Pursuant to s.742.3(1.1) of the Code, you will, as well, refrain from communicating directly or indirectly with C.T., and not attend within 200 meters of any known place of residence, employment or education of C.T.
• Pursuant to s.742.3(2) of the Code:
  • you will abstain from the possession, purchase or consumption of any narcotics, except in accordance with a medical prescription;
  • you will engage in whatever treatment or counselling programs your supervisor may recommend, including but not limited to those relating to anger management, and execute any and all releases requested by your supervisor to allow monitoring of your progress in that regard;
  • you are not to possess, access, publish, distribute, sell, or otherwise make available or advertise, any images of C.T., whether by computer, electronically, or any other means.
  • you will confine yourself to the property boundaries of your residence, (the municipal address of which is to be provided in writing to your supervisor), except for:
    • for the purpose of your continued employment;
    • for medical emergencies and scheduled health and dental care appointments, including those associated with the birth of your child; and
    • with prior written consent of your supervisor, for up to four additional hours per week to attend to personal affairs.

[94] Mr B.: you need to know and understand that a conditional sentence is just that – conditional.

[95] For the reasons I have outlined, I am permitting you to serve your sentence in the community; i.e., with your residence forming your effective "jail", subject to the exceptions I have outlined.

[96] If you breach any of the conditions I have imposed, you will be brought back before the court, and may very well find yourself serving the balance of your sentence in a far different form of institutional jail.

[97] Do you understand?

[98] That conditional sentence will be followed by a three year period of probation, subject to the following terms and conditions:

• the compulsory terms and conditions required by s.732.1(2) of the Code, namely:
  • To keep the peace and be of good behaviour;
  • To abstain from communicating, directly or indirectly, with C.T., or being within 200 meters of any known place of residence, employment or education of C.T.;
  • To appear before the court when required to do so; and
  • To notify the court or supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.
• You will as well be subject to additional conditions of your probation, pursuant to s.732.1(3) of the Code, whereby you shall:
  • Report to a probation office within two working days of completing service of your conditional sentence;
  • Remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or the probation officer;
  • Abstain from the purchase, possession or consumption of narcotics except in accordance with a medical prescription;
  • Engage in any programs of treatment or counselling, including but not limited to programs relating to anger management, that your probation officer may recommend, and execute any releases requested by your probation officer that may be necessary to monitor your progress in that regard; and
  • not possess, access, publish, distribute, sell, or otherwise make available or advertise, any images of C.T., whether by computer, electronically, or any other means.

[99] There will, as well, be further ancillary sentencing orders whereby:

• pursuant to section 737 of the Code, you will pay, within 60 days, the mandated victim fine surcharge of $200 for your single offence prosecuted by way of indictment;
• pursuant to ss.487.04 and 487.051(1) of the Code, a Form 5.03 order will be made, requiring you to provide the number of samples of bodily substances reasonably required for forensic DNA analysis;
• pursuant to s.743.21(1) of the Code, you shall not communicate, directly or indirectly with C.T. during the custodial period of your sentence; and
• pursuant to s.162.2 of the Code, an order shall go, for the next 20 years or such shorter period as may be directed by further order of the court, whereby the following restrictions shall be placed on your use of the internet:
  • while you shall be permitted to maintain an internet address, and thereby send and receive messages via the internet, you shall be prohibited from participating in Facebook, Instagram, Snapchat or any similar social networking facility on the internet;
  • any internet address used by you, any website created by you, and all messages, advertisements, photographs or other material you directly or indirectly post to or through any website or internet service must include your proper legal name in full; i.e., "J.B."; and
  • you are not to possess, access, publish, distribute, sell, or otherwise make available or advertise, any images of C.T., nor send any email or make any posting referring to C.T.

[100] Sit down please, Mr B., while I endorse the indictment accordingly.

"Justice I. F. Leach"

Justice I.F. Leach

Released (Orally): August 3, 2018

COURT FILE NO.: 116/16 DATE: 2018/08/03

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – J.B.

REASONS FOR JUDGMENT

Justice I.F. Leach

Released: August 3, 2018