COURT FILE NO.: CR22-312 DATE: 20240220
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – Jade Boucetta Defendant
Counsel: Lisa Defoe, Konrad de Koning, for the Crown Cassandra DeMelo, for the Defendant
HEARD: Plea taken April 24, 2023; Submissions heard November 23, 2023
W A R N I N G
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
reasons for sentence justice p.j. moore
I. OVERVIEW
[1] There is a publication ban in place preventing the publication of the complainant’s name or any identifying information in this case. Before these reasons are released or published, the complainant’s name shall be initialized.
[2] Jade Boucetta entered pleas of guilty on one count of voyeurism contrary to s. 162 and one count of distribute intimate images without consent contrary to s. 162.1 of the Criminal Code of Canada. The count alleging sexual assault was withdrawn.
II. FACTS
Circumstances of the offence
[3] An agreed statement of facts (“ASF”) was filed on this matter.
[4] The Defendant and the victim, K.E. were both students at Western University in London, Ontario. They met for the first time on October 30, 2021, at a Sigma Chi Fraternity Halloween party at about 1 a.m.
[5] K.E. had been drinking earlier at her residence and at another party and continued drinking at the Sigma Chi party. Her alcohol consumption caused her to become intoxicated and resulted in some memory loss. She has a recollection of being led into a concrete room by a male (later identified as the accused). In the room, the male had vaginal intercourse with her while she was bent forward. She ended the intercourse and went to find a friend to take her home. The Crown did not seek to prove a lack of consent and no such lack of consent was admitted by the accused.
[6] After being brought back to the residence, a friend of K.E. advised her that a video had been sent to him from the accused on the social platform, Snapchat. On the video, the accused had superimposed the words “jail cell,” which was the nickname for the concrete room. The video was 11 seconds long; it starts with the accused having vaginal intercourse with the victim from behind. Both their genitalia can be seen. At one point, the accused switched to the front-facing camera, capturing his face while engaged in intercourse. The image is part of the ASF and shows the accused smiling and laughing.
[7] K.E. was unaware that she was being video recorded and did not consent to the recording or to it being sent to anyone.
[8] Later that night, the accused upon learning that K.E. was upset, attended at her residence, and attempted to speak to her. Her friends would not permit him to speak to her and recorded their interaction. During the recording, the accused admitted to doing something “really stupid” that he regretted. He admitted to sending the video to other people and claimed he had deleted the video. He also agreed that the video was taken without the victim’s knowledge or consent.
[9] The police investigation confirmed through interviews that the video had been sent to and received by numerous members in a Snapchat group called “pledge scum.” The accused’s phone was seized by warrant and the video was located on the phone.
The Impact on the Victim
[10] K.E. filed a victim impact statement. Unsurprisingly, the impact on her was significant and long-lasting. She was only eighteen (18) years old and in her first year of university at the time of the incident.
[11] She used the following adjectives to describe her emotions following this incident: worthless, alone, isolated, failure. She expressed how she was in constant fear when on campus, not knowing if someone had seen the video that the accused had distributed.
[12] K.E. describes the incident having a massive impact on both her mental health and physical well-being. It induced fear and anxiety, led to hysterical crying and sleepless nights and an inability to eat due to stomach upset. Her personality changed and she is no longer the fun, bubbly, and outgoing person she was before.
[13] She failed a class because she was unable to focus and get her work done as this matter was always on her mind. She then had to take a semester off as she was still not doing well. She has undergone significant counselling to try and assist her with the on-going impacts of these offences.
Circumstances of the offender
[14] Mr. Boucetta is currently 21 years old. He does not have a criminal record.
[15] Mr. Boucetta is originally from Spain but is a Canadian citizen and currently lives in Montreal, Quebec with his mother. There was a pre-sentence report prepared which indicates that that Mr. Boucetta was raised in an affluent family environment, which espoused conservative values including hard work, academic success, and family relationships. It describes a happy childhood with loving parents who supported him. Although his parents divorced when he was a teen, he continued to have the support of both parents who continued to assume responsibility for his needs.
[16] The report describes that the accused was outgoing, made friends easily, and excelled in sports and academics. He played the position of quarterback in football. However, when he attended his business management program at Western University, he did not make the football team. This resulted in a loss of status and prestige, which had an impact on him and also allowed more time for socializing.
[17] At this time, the accused started engaging in activities including partying and drinking alcohol (sometimes abusively). He also reported joining a student chat group whose members would boast about their sexual exploits and share a very objectified and hypersexualized view of the female gender. Some members of this group boasted about posting images online that had been taken without the knowledge of their sexual partners.
[18] The author of the report wrote that Mr. Boucetta assumed responsibility for his criminal actions and confirmed that he deeply regrets his conduct. He expressed empathy for the victim and indicated he was ashamed of his actions. He could not explain his actions. He said that he was slightly drunk and spontaneously made the decision to film himself while having sex and to share the footage with his peer group.
[19] The assessment includes that: “his criminal actions appear to have resulted from an immature desire for affirmation from his peers and a blind acceptance of the deviant sub-culture that they espoused. In this respect, he demonstrated a serious lack of judgement, an exaggerated sense of personal entitlement, a lack of consideration for the victim and an indifference to the probable consequences of his actions.”
[20] The report re-iterates the programs and steps that Mr. Boucetta has taken to target his criminological factors, which I will detail below, and indicates that he has remained sober since the offence. It concludes that he is capable of self-criticism and has demonstrated openness and has a strong support network. The report indicates that he appeared to lack a full understanding of the dynamics of the tort (wrong) but expressed his willingness to follow the report’s recommendations on treatment.
[21] Counsel for the accused, Ms. Demelo advised that as a result of this offence, Mr. Boucetta left Western University and is now studying business at Concordia University. He is running his own sports and talent agency and currently has fifteen athlete clients. He also DJs a couple of nights of the week. He spends his free time with his family and goes to the gym.
[22] Ms. Demelo emphasized that it was always the Defendant’s intention to plead guilty to the offences to which he entered pleas. She indicated that he understands the complete invasion of the victim’s privacy, the long-lasting impacts on her life, and the profound impact on her university experience and life.
[23] Mr. Boucetta took a number of courses on gender violence and consent and the certificates of completion were filed as part of the sentencing. He also took six (6) counselling sessions with Jennifer Holt, who facilitates the Changing Ways program. Those sessions focussed on sexual offence specific counselling including reducing risk, prosocial lifestyle, gender-based violence, consent, power imbalance, cognitive distortion, and how sexual offending impacts on victims and society.
[24] He has chosen to abstain from alcohol since this incident as he believes that alcohol contributed to his poor choices that evening. Many of his friends no longer wished to associate with him after this incident.
[25] His uncle, mother, and father wrote letters of support indicating that Mr. Boucetta was a “good boy,” that he recognized his mistake, and has exhibited change and personal growth. They offer him their support and ask that he be given a second chance to be a good person and citizen.
Other Evidence
[26] The Crown provided the court with the statistical data for the offence of Non-consensual distribution of intimate images (NCDII) for Ontario and Canada for the years 2018 to 2022. The data shows an increase in Canada of actual incidents in 2018 of 1,483 to 2022 of 2,424 and in Ontario during the same period of 466 to 834 or nearly doubling. The Crown advised they provided this data to show the need for deterrence in for these types of offences.
III. CROWN AND DEFENCE POSITIONS:
[27] The parties agree that the range of sentence is in the mid to upper reformatory. They disagree on whether a conditional sentence would be appropriate, especially considering proportionality, the harm caused to the victim, and the primary goals of denunciation and deterrence.
[28] The Crown seeks a global sentence of twelve (12) to eighteen (18) months incarceration followed by two years probation. It submits that although a conditional sentence is available, such a sentence would not meet the primary objectives of deterrence and denunciation. The Crown points to the significant intrusion on the privacy of the complainant and the devasting impact of this offence on her.
[29] In addition, the Crown seeks the following ancillary orders: i. a DNA order; ii. Firearms order.
[30] The Defence seeks a sentence of eighteen (18) months to two years less a day in the community as a conditional sentence to be followed by lengthy probation. She points to the fact that the Defendant entered a plea to these offences and has done everything in his power to learn from his mistake and to gain insight and make himself a better person. She submits that a conditional sentence with strict conditions can meet the goals of denunciation and deterrence.
[31] Defence counsel did not take issue with the DNA orders.
IV. THE FIT AND PROPORTIONAL SENTENCE IN THIS CASE
Sentencing Principles to be Applied
[32] The offence of voyeurism prosecuted by indictment, has a maximum penalty of five (5) years incarceration. The offence of distribution of intimate images without consent, prosecuted by indictment, has a maximum penalty of (5) years incarceration as well.
[33] The fundamental purpose of sentencing is to protect society, to ensure respect for the law and to maintain a just, peaceful, and safe society. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A just sentence meets the goals of deterrence, denunciation, retribution, and rehabilitation.
[34] In coming to a just sentence, the court must consider the aggravating and mitigating factors unique to each case. Sentencing is a highly individualized process, and each case must turn on its own specific facts. Individualization is central to the assessment of proportionality as it requires a focus on the individual circumstances of the offender: R. v. Parranto, 2021 SCC 46, 411 C.C.C. (3d) 1, at para. 12; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 58.
[35] The Court of Appeal has stated that sentencing judges have wide discretion when imposing sentences: R. v. Kerr (2001), 153 O.A.C. 159 (Ont. C.A.).
[36] I have considered the principles of sentencing as set out in Section 718 to 718.2 of the Criminal Code. One must keep in mind the goals of parity, consistency, and fairness in applying those principles.
[37] In this case, I find that denunciation and deterrence are key principles which factor into the sentencing of Mr. Boucetta. Both counsel agreed that these are the primary considerations. Having said that, I must consider all of the goals of sentencing including rehabilitation and restraint. Restraint is codified in section 718.2 (d)(e) and means that a sentencing court should seek to impose the least intrusive sentence and the least quantum that will achieve the overall purpose of being an appropriate and just sanction. See: R. v. Hamilton (2004), 72 O.R. (3d) 1 (Ont. C.A.), at para. 96. Restraint is of particular importance when sentencing first-time and youthful offenders. See: R. v. Priest (1996), 30 O.R. (3d) 538 (Ont. C.A.) at pp. 543-544. R. v. Borde (2003), 63 O.R. (3d) 417 (Ont. C.A.).
Parity in sentencing
[38] Parity in sentencing refers to the principle that similar offences committed in similar circumstances by an offender of a similar background should attract a similar sentence. It is part of the concept of proportionality. Of course, the reality is that no two cases are exactly alike and sentencing remains individualized process.
[39] The Defence provided me with three cases that they acknowledge are not similar to the facts before the court but were provided to show the wide range of sentences available for these offences. They attempted to find cases where both voyeurism and distribution were present. In the first case, R. v. McDonald (McHugh J., 2019 OCJ, unreported), Mr. McDonald was convicted of four counts of voyeurism including recording one complainant at a party while she was changing in the bathroom, one complainant using the toilet, an “up-skirt” video of a female wearing a bathing suit bottom under a skirt, and another “up-skirt” video of a female wearing a skirt and underwear. The offender was a first-time offender who was otherwise a responsible member of the community. The trial judge found that a conditional sentence was appropriate and imposed 14-month conditional sentence and two years probation.
[40] The Defence also provided me with the case of R. v. Pastor (Nova Scotia Prov. Ct 2022). In that case, the accused was upset about the end of his relationship with the complainant, and he showed a naked photo of the complainant he had on his phone to another person while they were at a bar at a winter ski retreat. The complaint indicated that the retreat was now spoiled for her as she was embarrassed. The Crown sought a conditional discharge and the defence an absolute discharge. The court imposed a conditional discharge indicating it was mindful of the fact that the parties had come together with a joint plea-negotiated arrangement.
[41] The last case was R. v P.S.D, BC Prov. Ct. 2016 Sudeyko J. where the accused plead guilty to one count of distribute intimate image and one count of breach of bail order. The plea was entered after the credibility of the complainant was significantly undermined at trial and the prosecution of other charges was discontinued. There appears to have been a dispute in a car between the parties and the accused took photos of the complainant on his phone without her consent and sent them to two friends with instructions to save the pictures. The pictures were of poor quality and showed the complainant’s bare breasts. Due to the blurriness of the photo, it was somewhat difficult to recognize the complainant. The defendant had spent 60 days in pre-trial custody and the Crown sought 90 days jail (time served) while the defence sought a conditional discharge. The judge imposed a suspended sentence and 2 years probation.
[42] While I appreciate that the Defence was attempting to show the wide range of sentences, given the disparity in the facts between the cases presented and the facts before the court, I do not find these case to be of much assistance. Sending a video of someone engaged in sexual intercourse to a group of people is quite different than any of the facts in these cases.
[43] The Crown provided an article entitled “Intimate Images and Authors Rights: Non Consensual Disclosure ” by M. Sali, published in the Canadian Journal of Law and Technology , which I will reference in my analysis.
[44] The Crown also provided three cases that stand for the proposition that deterrence and denunciation are the paramount sentencing principles in a case such as the one before the court. R. v. S.C.C., 2021 MBCA 1, at para. 33-34, R. v J.R., 2018 ONCJ 851 at para. 1, 91-93 and R. v Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 73. This does not appear to be disputed and I agree that these sentencing principles must be paramount in this case.
[45] The Crown provided me four (4) other cases to demonstrate that although a conditional sentence is available, it would not be appropriate in this case. I shall review them in turn. The cases themselves contain a review of cases which I will not detail unless relevant.
[46] In the fist case R. v. J.B. 2018 ONSC 4726, the accused created a fake Facebook account using the victim’s full name and sent an invite to 96 of the victim’s family and co-workers. On the account were five (5) intimate images of the victim showing her intimate regions and full naked torso and a photo of her 9-year-old son. The victim identified the images as those that were taken with her consent, but she did not consent to have them distributed. She suffered extreme humiliation and embarrassment. The page was taken down within hours of the victim being made aware of its existence, but it had been viewed by her employer, a co-worker, and a number of friends. The accused plead guilty. He had community and family support. He was in a new relationship with a baby on the way. He had a lengthy criminal record. The Crown sought 1 year jail and 3 years probation and the defence 9-12 months conditional sentence and 12-18 months probation. Leach J. imposed 16-month conditional sentence order and 3 years probation.
[47] The Crown pointed to a number of the authorities referenced by Leach J. in the J.B. decision at pages 16-18. The decisions referred to, for the most part, fit the fact pattern of “revenge porn” where the accused posted intimate photos or videos of one or more victims to social media or the internet. The decisions involved a breach of trust and a degree of planning and deliberation. The Court in each of the decisions referenced imposed a traditional jail sentence between 90 days and 12 months. Dasilva (5 months), Ly (12 months), B.H. (90 days) A.C. (5 months)
[48] In J.B., Justice Leach struggled with the same dilemma that this court has to determine: do the principles of sentencing and other fundamental purpose and principles set forth in s. 718 - 718.2 demand imposition of a custodial sentence or can they be adequately addressed in a conditional sentence.
[49] In R. v Weedon, 2023 ONCJ 317, the accused was found guilty after trial of making available intimate images without consent and mischief by altering a computer password. The trial judge found that the accused accessed his ex-girlfriend’s snapchat account, changed her password, and posted nude images and videos of her on the account, all while sending her harassing text messages calling her names and accusing her of cheating on him.
[50] The offence had a devastating impact on the victim. The accused was 34 with no criminal record. He was employed and living with his parents at the time of sentencing. The Defence sought 9-12 months jail and the Crown 2 years jail. The trial judge reviewed the caselaw at paras. 13-17 and concluded that the range of sentence for vengefully placing nude images online of an identifiable complainant is the mid to upper reformatory range. The trial judge found that taking into account the accused’s lack of criminal record, family and community supports, and that this was a first jail sentence, a sentence of 12 months jail and 3 years probation achieved all of the sentencing objectives.
[51] The accused in R. v Mikhail, 2023 ONCJ 432, plead guilty to three counts of voyeurism involving three different women and one count of distributing intimate images involving a former partner. It was also agreed that the court could take into account facts relating to five additional victims. The accused operated an account on “Pornhub” where he submitted countless videos of women with captions including derogatory comments. It was to this site that he uploaded sexual photos that he had surreptitiously taken of his former partner. She only learned of the photos four years after the relationship had ended. The counts of voyeurism related to the accused surreptitiously recording women at a Goodlife gym while clothed and working out and uploading them to his account with commentary.
[52] The accused was 30 years old with no record and according to the PSR author showed good insight into his behaviour. He told the writer he was “disgusted” by his behaviour and wished to apologize to the victims. The accused also underwent a psychological assessment and expressed a willingness to engage in treatment and pursue further supports.
[53] The Crown sought 18 months jail and 3 years probation and the Defence probation or in the alternative a conditional sentence order. At para. 113 and following, the trial judge found that a conditional sentence could not adequately address the principles of general deterrence and denunciation. He adopted a passage from another case wherein the judge found that in considering the significant aggravating factors, a conditional sentence would not be proportionate to the gravity of this offence, nor would it adequately fulfill the principles of general deterrence and denunciation. He noted that in this case, the sentence was for offences that had been committed in respect of multiple victims over a prolonged period and that the distribution offence involved a breach of trust. He pointed out that s. 162.1 has now been in force for 8 years. Mr. Mikhail was sentenced to 10 months on the first voyeurism offence, 5 months consecutive for the distribution offence with the other voyeurism offences running concurrently and two years probation.
[54] The Crown also referred the Court to R. v R.S. 2023 ONCA 608, a case in which the trial judge imposed a conditional sentence for a violent sexual assault in an apartment and 90 days intermittent on a choking charge. The trial judge relied to a large extent on the application of Gladue principles in finding that such a sentence was appropriate. The sexual assault included the accused forcibly stripping the victim, removing her tampon, digitally penetrating her, and choking her. It only stopped when a neighbour heard the commotion and entered the apartment to check on the complainant. The majority of the Ontario Court of Appeal overturned the sentence as being demonstrably unfit and concluded the proper range of sentence was 3-5 years and imposed a sentence of 3 years.
[55] The Crown also argued that the Supreme Court in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 42, has made it clear to courts that sentences for sexual offences must reflect the growing understanding of the profound physical and psychological harm that all victims of sexual assault experience.
[56] Having reviewed the authorities provided to me, it is clear that there is a broad range of sentences that have been imposed in similar cases. Each case must turn on the individual circumstances of the case and the offender.
V. ANALYSIS
[57] The offences of voyeurism and distribution of intimate images without consent are both sexual offences and privacy offences. I also find that given that the majority of victims are women, they are also a form of gender-based violence. Although some of the caselaw and other literature refer to the offence of distribution of intimate images without consent as “cyberbullying” or “revenge porn,” the article by Ms. Sali urges the title “image based sexual abuse” to better describe the offence.
[58] The unrelenting reality of all the cases that were provided to the court and the cases referenced within them is the devastating impact these offences have on its victims. Many of whom, including K.E. in this case, reported feeling a loss of a sense of safety, reduced self-worth, and long-lasting and significant impacts on their mental and physical well being.
[59] In the article provided, Ms. Sali talks about the interrelation between privacy and intimacy and the core values of control, dignity and intimacy which underlie the understanding of why sharing private, intimate images without consent is rooted in a privacy violation. She contends that sexual privacy is situated at the “apex of privacy values.”
[60] As I have already indicated, the parties agree and the caselaw is clear that deterrence and denunciation are the primary sentencing objectives for these offences. This means that as the court indicated in the case of S.C.C., at para 34, “Therefore, the focus on sentencing for this offence is more on the offence committed than on the circumstances of the accused (see R. v. McFarlane, 2018 MBCA 48 (Man. C.A.) at para. 24; and Johnson at para. 13)”.
[61] Of course, other sentencing factors including rehabilitation and restraint are still at play and must be considered.
[62] With that in mind, I must determine if on the particular facts of this case and with this offender, a conditional sentence would meet the all the principals of sentencing with deterrence and denunciation being paramount.
[63] On my review, the other statutory preconditions of a conditional sentence under s. 742.1 are met, including that the service of the offence would not endanger the community, that there is no minimum term of imprisonment, and that a sentence of less than two years is appropriate. The imposition of the sentence therefore depends on an application of s. 742.1(a), specifically whether or not:
…. the court is satisfied that the service of the sentence in the community would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.
[64] The Supreme Court has made clear in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 22, 30, 35-37, 41, 66-67, 102-107 that a conditional sentence with sufficiently onerous conditions can achieve the objectives of denunciation and deterrence. See also R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v S.(R.N.), 2000 SCC 7, [2000] 1 S.C.R. 149. Certainly, conditional sentences have been imposed in other similar cases.
[65] The Court in Proulx went on to explain at para. 114 that:
Where punitive objectives such as denunciation and deterrence are particularly pressing, such as a case in which there are aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence.
[66] In determining whether the principles of sentence require a sentence of actual incarceration in this case, I must look at the mitigating and aggravating factors as well as the gravity of the offence and the moral blameworthiness of the accused.
[67] I agree with the Crown that these two offences have a compounding effect, the voyeurism offence was a significant breach of the victim’s privacy rights and invasion upon her sexual dignity. This is made all the more serious by the fact that it is a video recording and depicts the victim's vaginal area and shows her engaged in the very intimate act of sexual intercourse. I find the dissemination of the video to be particularly aggravating in these circumstances as it amplifies and exacerbates the intrusion on the victim’s privacy and means that her privacy rights may never be regained.
[68] Although I accept that the video was sent on the platform Snapchat which has an automatic erase function, I understand that this can be overridden depending on the recipient’s settings or they can decide to capture the material in another manner e.g., screenshot. Therefore, although the video was erased, there is no way of ever really knowing if it is still out there, having been saved by one of the recipients.
[69] The complainant in this case was only 18 years old and was intoxicated. She was in a very vulnerable state when the video was taken without her knowledge or consent.
[70] These offences have had a devastating impact on the victim as detailed already. The enormous impact on the victims of these types of offences informs the gravity of the offence. As the court stated in R. v. Friesen 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 89, “all forms of sexual violence, including adult sexual violence, are morally blameworthy precisely because they involve the offender’s unlawful exploitation of the victim – the offender treats the victim as an object and disregards their human dignity (see Mabior, (cite omitted)).”
[71] In assessing the moral blameworthiness of Mr. Boucetta, I have considered that he was also very youthful at the time, only 19. The facts are that he was slightly intoxicated. I find on the facts before me that he would have been well aware of the state of intoxication of K.E. I think it is fair to say he used K.E. for his own purposes.
[72] This case is distinguishable from many of the others presented to the court where the offence was committed as an act of vengeance. In those cases, it was done to purposely harm the victim. Also, in other cases, the victim’s name was used, sometimes her own social media account, and the images or video were intentionally sent to friends, family, and work colleagues to cause maximum embarrassment.
[73] The Crown asked, rhetorically, if the circumstances of this case were any better where the accused cannot explain the reasons for his behaviour. I find that in circumstances where an accused person sets out to intentionally inflict harm to the victim, there is a higher degree of moral culpability. While Mr. Boucetta says he cannot explain his actions, the explanation of the author of the PSR makes sense, that he did this for his own needs, as some form of sexual conquest to brag about without any consideration for the victim whatsoever.
[74] In addition, while not mitigating, I find that the following aggravating factors are not present in this case which were present in a number of the other cases presented and which impact on both the gravity of the offence and moral blameworthiness of the offender:
i. There are not multiple victims. ii. The accused and the complainant were unknown to each other so there was not a relationship of trust as is found in many of the cases and which is a statutorily aggravating factor under s. 718.2(a)(iii). iii. This was a single event and therefore there was not a prolonged period of behaviour or multiple breaches of privacy. iv. There does not appear to be any significant planning or deliberation to this incident. v. The accused did not take any steps to hide his identity in the video. vi. The recording was deleted shortly after the incident and not left available for a prolonged period. [Although, it is clear that a number of people received the video and viewed it.] vii. The recording was not put on an internet site open to the entire public, such as Pornhub. viii. The victim was not identified by name or by intentionally including an image of her face. Although, I was advised that the complainant in this case was identifiable to other partygoers by the costume she was wearing that evening. Clearly her friend was able to identify her and advise her of the snap.
Aggravating and Mitigating Factors
[75] I take into account the following aggravating factors of this particular case:
i. The victim was only 18 years old and was in a vulnerable state of intoxication at the time of the incident. The accused would have been aware of the victim’s vulnerability. ii. This incident has had a devastating and significant impact on the victim’s health and psychological well being. It has impacted on her schooling, including failing a class and missing a semester. Despite her clear and substantial efforts to find help and to heal, she is still suffering from the fallout of the accused’s actions. iii. The thing disseminated is a video, which I find is more serious than a single still image. A video is actually hundreds of still images and can be turned into the same. iv. The video was sent to a private distribution group in a digital form after which the accused no longer has any control over what becomes of it.
[76] I take into account the following mitigating factors:
i. Mr. Boucetta plead guilty which is a traditional sign of remorse and of taking responsibility for one’s actions. I note that the Crown has a strong case on the two charges, but I acknowledge the accused took responsibility that night when speaking with the victim’s friends. I am told that he was willing to take responsibility to the counts to which he ultimately plead from an early date. He read a letter of apology to the victim to the court at his sentencing hearing. ii. The accused went to the victim’s house later that night to apologize to her. The Crown suggests this may have just been “damage control,” but I am prepared to accept that even if that was part of the reason, he was prepared to take immediate responsibility and own up to his actions by apologizing and deleting the video. iii. The accused was only 19 years old at the time of the incident and is 21 now. iv. He has no criminal record. v. Mr. Boucetta has applied himself to his studies and to finding and maintaining gainful employment as a talent agent and as a DJ. vi. I have considered the letters of support filed on his behalf. It is clear that he has a loving and supportive family and they have talked about the changes in him, his remorse, and his sobriety. As the Crown pointed out, some members of his family may not have known everything about his life prior to this incident including his lifestyle. vii. Mr. Boucetta has taken six sessions of counselling and a number of online courses to gain insight into his offending behaviour and to ensure it does not happen again. viii. Mr. Boucetta has chosen to remain sober since the incident to remove one of the factors that he believes led to his poor decision-making that night.
[77] I find that Mr. Boucetta has genuine remorse for his actions. Although he may not understand the full extent of his behaviour, he has shown significant insight and a willingness to work towards greater understanding.
[78] I find that the acts he committed were in the words of his counsel “immature, selfish, and morally repugnant.” I would echo those comments as well as the comments of the PSR writer about Mr. Boucetta’s apparent sense of entitlement. Fortunately, I believe that Mr. Boucetta has gained insight into the nature of the acts he committed and the devastating impact they had on the victim.
[79] I am aware that the focus needs to be on the offences and the need for denunciation and deterrence more than the circumstances of Mr. Boucetta; although those factors are paramount, there still needs to be a balance of all factors.
[80] Mr. Boucetta’s conduct on the evening in question was repugnant. He did not treat K.E. as someone deserving of respect and she is entitled to be respected. That is disturbing. However, I remind myself of the need for restraint particularly when dealing with youthful first offenders. I have also considered the absence of some of the aggravating factors found in many of the other cases where jail was imposed. I am of the view that if one or more than one of those factors were present, it might tip the balance in favour of actual incarceration.
VI. CONCLUSION
[81] Having considered the gravity of the offence, the moral responsibility of the accused, and the other aggravating and mitigating factors, I am of the view that a conditional sentence order of two years less a day can meet the principles of sentencing including the primary goal of proportionality. This sentence shall be concurrent on both counts. This is a longer sentence than I would have given if sentencing the accused to actual incarceration. If I were sentencing him to traditional jail, the sentence would have been one of 15 months. This will be followed by two years of probation which will also be concurrent on both counts.
[82] However, for a conditional sentence to have the appropriate deterrent and denunciatory impact, it must have real “teeth” and be punitive in nature. I advised counsel that it must include a component of electronic monitoring. The purpose of that is twofold, one to ensure that compliance is objectively achieved and that the public can be assured that a third party is monitoring the offender and the second is a tangible reminder to the accused that although there may not be bars in front of him, his liberty is nonetheless restricted, and a breach can bring about the former.
[83] I have been advised that the Agency, Safetracks GPS Canada will provide Electronic Monitoring in the Province of Quebec and that his Conditional Sentence Supervisor is willing to liaise with that company.
[84] I also believe that as part of a conditional sentence order, Mr. Boucetta should give back to the community and there will be a community service component to the sentence.
[85] Mr. Boucetta used social media in his abuse of K.E., and I shall therefore include some restrictions in this regard as well.
VII. IMPOSITION OF SENTENCE
[86] Mr. Boucetta, please stand. For the entire term of the conditional sentence order unless otherwise stipulated the conditions shall include, subject to further submissions from counsel:
i. Mr. Boucetta, you shall follow all the statutory terms of a conditional sentence order as set out in s. 742.3 of the Criminal Code. ii. You shall reside at 3078 Jean Girard Street, Montreal, Quebec or an address approved by your conditional sentence supervisor. iii. You shall be confined to the boundaries of your property for the first eighteen (18) months of the conditional sentence with the following exceptions: a) For the purposes of attending school and going directly to and from school; b) For the purposes of your Talent and Sports agency employment, being outside your residence for no more than 6 hours a week for any appointments concerning your employment, to be provided to his supervisor in advance; c) For 4 hours every Saturday between 12 and 4 p.m. to address his personal needs; d) For medical emergencies concerning yourself or any members of your immediate family and scheduled health and dental care appointments; e) For pre-arranged counselling appointments or to perform community service hours. f) You shall provide a detailed itinerary of the above (except emergencies) to your conditional sentence supervisor in advance and carry a copy of their prior dated written consent on your person. iv. For the last 6 months of his conditional sentence order, Mr. Boucetta you will maintain a curfew by remaining on your property between the hours of 8 p.m. and 6 a.m. with the exceptions noted above. v. You shall be subject to GPS monitoring by Safetracks GPS Canada and agree to abide by all of its rules and protocols which will be attached to this order as Appendix “A” Those rules and protocols form part of this order. vi. You shall attend at a time and place to have an electronic monitor affixed to your person, but no later than 72 hours after this order. vii. You shall not communicate or contact either directly or indirectly K.E. viii. You shall not be within 25 m of K.E. ix. You shall not attend within 200 m of any place known to be the place of residence, employment, or education of K.E. x. You shall take any counselling as directed including in the area of sexual offending. xi. You shall sign any necessary waivers or authorizations to allow your supervisor to monitor your progress or completion of programs. xii. You shall not have any social media accounts in your name or in the name of any pseudonym including but not limited to Facebook, Instagram, X (formerly Twitter), Snapchat, TikTok, WhatsApp, Discord, Reddit, Messenger. You may have an account(s) in the name of your talent business. You shall provide access to that account(s) at all times to your supervisor. xiii. You shall complete 80 hours of community service of not less than 4 hours per month.
[87] It is appropriate that the conditional sentence order be followed by a 2-year term of probation with the following terms and conditions:
i. You shall comply with all statutory conditions. ii. That you report to a probation officer at a time and place as directed by your conditional sentence supervisor and thereafter as directed by the probation officer. iii. You shall not communicate or contact either directly or indirectly K.E. iv. You shall not be within 25 m of K.E. v. You shall not attend within 200 m of any place known to be the place of residence, employment, or education of K.E. vi. You shall take any counselling as directed including in the area of sexual offending. vii. You shall sign any necessary waivers or authorizations to allow your probation officer to monitor your progress or completion of programs. viii. You shall complete 80 hours of community service of not less than 4 hours per month to be completed in the first 20 months of the probation period. ix. You shall provide access to any and all social media accounts to your probation officer as requested.
Ancillary Orders
[88] Pursuant to s. 737, Mr. Boucetta shall pay the mandated victim fine surcharge of $400 within 30 days.
[89] These offences when prosecuted by indictment are secondary designated DNA offences pursuant to s. 487.04(a). I find that in the nature and circumstances of this case that it would be appropriate to make an order in Form 5.04 pursuant to section 742.051(3)(b). Such an order would be a minimal intrusion on the adult offender’s security of the person given his diminished expectation of privacy following conviction and would be in the best interest of the administration of justice. See R. v. Hendry (2001), 57 O.R. (3d) 475 (Ont. C.A.). I therefore order that you provide such samples of your DNA as may be reasonably required for forensic testing and that you accompany an officer for that purpose.
[90] Mr. Boucetta, the Supreme Court in Proulx said there was a presumption of incarceration if a conditional sentence order is breached. I would suggest you keep that in mind if you are tempted to breach any of the terms of the order. I hope that you continue to reflect on the devastating impact your choices have made on K.E. and that you continue to work towards understanding those actions. I commend you on the work you have done so far and encourage you to continue on this path.
[91] This written decision shall represent my formal decision on this matter and shall take precedence over my oral reading of the decision in Court.
“Justice P.J. Moore”
Justice P.J. Moore
