Court File and Parties

Court File No.: SCA101667 Date: 2024-10-07

Ontario Superior Court of Justice Summary Conviction Appeal Court

Between: His Majesty The King, Appellant

• and - C.S., Respondent

Counsel: S. McNaughton and M. Goodfellow, for the Appellant S. Safa, for the Respondent

Heard: June 14, 2024

Reasons for Decision

GIBSON J.:

Overview

[1] The Respondent C.S. (“S.”) pled guilty in the Ontario Court of Justice to the s. 162.1(1) Criminal Code offence of distributing intimate images of his former partner on April 6, 2023. On July 11, 2023, Sopinka J. (“the Sentencing Judge”) sentenced S. to a conditional discharge, which included a term of probation for three years, with strict conditions. Amongst these were that, for the first 12 months of the probation order, S. was to remain in his residence at all times except for employment and education, and pre-arranged medical, dental, legal or counselling appointments, and brief windows of time to acquire the necessities of life.

[2] The Crown appeals the sentence imposed, advancing the following grounds of appeal:

1. That the Sentencing Judge erred in principle in imposing a period of probation that is akin to a conditional sentence order;
2. That the Sentencing Judge erred in principle by imposing a sentence that failed to adequately address the principles of denunciation, and general and specific deterrence;
3. That the Sentencing Judge erred in concluding that the imposition of a conditional discharge was not contrary to the public interest;
4. That the Sentencing Judge erred by placing undue emphasis and weight on the Respondent’s prior good character as a mitigating factor;
5. That the Sentencing Judge erred by considering the Respondent’s medical condition (an eye malady) as a mitigating factor;
6. That the Sentencing Judge erred by considering speculative employment consequences as mitigating and/or a collateral consequence; and
7. That the Sentencing Judge erred by imposing a demonstrably unfit sentence.

[3] The Respondent resists the Crown’s appeal.

Factual background

[4] S. was in a dating relationship with the complainant. They had one child together. Their relationship had recently ended when, on April 6, 2022, S. sent a video via Facebook to the complainant’s new boyfriend. The video depicted S. and the complainant engaged in consensual vaginal and anal intercourse.

[5] S. accompanied this video with a crude text message to the new boyfriend that alluded to the anal intercourse. Subsequently, S. also sent a taunting text message to the complainant regarding the video. The complainant subsequently contacted the police.

[6] The Sentencing Judge noted that the impact on the complainant was significant, and recognized as aggravating that the offence was committed against an intimate partner. However, she also noted a number of mitigating features, including S.’s relative youth (he was 28 years old), and a medical issue he was grappling with involving his eyesight. The Sentencing Judge placed particular emphasis on the collateral employment consequences that would flow from a conviction.

[7] The Sentencing Judge also noted that denunciation was a relevant principle, although she did not emphasize its centrality. Both counsel in their submissions acknowledged that denunciation and general deterrence were paramount principles. Once the Sentencing Judge determined that a discharge was appropriate, she noted that the probationary period would be lengthy and particularly strict, to “adequately address all of the sentencing principles.” She imposed a three-year order, and for the first 12 months, S. was subject to a curfew term with the usual exceptions that accompany a conditional sentence.

Position of the Appellant Crown

[8] The Crown submits that probation orders are not supposed to be used to impose punitive terms. Rather, they are rehabilitative tools. Often, they follow terms of imprisonment, with the imprisonment providing the punishment and the probation order following to assist the offender’s reintegration into the community. Where they follow discharges, it should be because the offence is not particularly deserving of punishment and the need for rehabilitation is paramount. Probation orders are not a substitute for imprisonment, which is how the Crown submits they were used in this case.

[9] Second, the Crown submits that judges are not supposed to impose “disguised conditional sentences” - probation orders with terms that mirror conditional sentences, used to get around a legal ramification of a sentence of imprisonment that the sentencing judge does not like. Here, the Crown asserts, the Sentencing Judge used a probation order, instead of the conditional sentence order she really thought appropriate, because a conditional sentence required a criminal conviction and she did not want to register one. It was inappropriate for the Sentencing Judge to try to get around this requirement by imposing a lesser sentence.

[10] Third, the Crown contends, the discharge imposed here was unfit. The Sentencing Judge was motivated entirely by her desire to spare the Respondent the employment consequences that come with a criminal conviction. Although that collateral consequence is always a relevant factor, it was overemphasized in this case to the point that the resulting sentence did not reflect the gravity of the offence.

[11] The Crown asks on this appeal that the sentence imposed be quashed, and a conditional sentence be substituted. In the event that what it describes as the “house arrest” component of the probation order has already been served, it asks that a conviction be registered, without re-imposing house arrest.

Position of the Respondent

[12] The Respondent submits that, far from seeking to impose a custodial sentence, the Sentencing Judge specifically determined that custody was not necessary in the circumstances. Then, having determined that custody was not warranted, she went on to consider whether the test for a discharge had been met, and determined that it had. The Sentencing Judge was entitled to impose an exceptional sentence, and she justified why an exceptional sentence was appropriate in this circumstance. The Crown’s submissions, the Respondent contends, amount to a request for a “do-over” of the sentencing hearing and re-weighing of the relevant factors, and should be rejected.

[13] The probation term imposed was appropriate in the circumstances because it was not driven by a desire to punish the Respondent, but was rather linked to his rehabilitation. A house arrest or curfew condition is not categorically punitive in nature.

[14] Further, the Respondent submits, it was open to the Sentencing Judge to assess that S. was youthful, as there is no bright line for when an offender is regarded as youthful.

Analysis

[15] The Crown submits that the Sentencing Judge erred by using probation, a rehabilitative tool, to impose punitive terms that were intended to serve a denunciatory purpose, and that she erred in imposing a disguised conditional sentence to get around the requirement of a criminal conviction. In overemphasizing the collateral consequences to the Respondent’s employment, it contends, the Sentencing Judge imposed an unfit sentence. The Sentencing Judge also erred, it says, by considering S.’s relative youth and medical issue to be mitigating, because he was not youthful and the medical issue was unconnected to the offence. It also contends that the Sentencing Judge erred in relying on precedents where conditional sentences were imposed for this type of offence, because those precedents reflect the same error complained of here.

[16] I do not agree with any of these grounds.

[17] There is no doubt that the distribution of intimate images without consent is a form of intimate partner violence, and that it is a sexual and privacy offence that disproportionately impacts women: R. v. Ha, 2023 ONCJ 75. The phenomenon of intimate image publication without consent needs to be addressed in a serious and targeted manner: R. v. J.B., 2018 ONSC 4726.

[18] However, as one would expect, sentencing courts have approached their task with due regard to the necessity to consider both the offence and the particular offender before them. There is a range of sentencing dispositions. For example, in both R. v. Calpito, 2017 ONCJ 129, and R. v. Agoston, 2017 ONSC 3425, conditional discharges with probation were imposed.

[19] It was open to the Sentencing Judge in this case to impose an exceptional sentence. As the Supreme Court of Canada recognized at para. 58 in Lacasse:

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case.

[20] The Sentencing Judge did not impose a disguised conditional sentence. A curfew condition is not categorically punitive in nature. To determine whether these kinds of condition are valid, a reviewing court must examine the purpose for the condition as well as whether there is a reasonable link between the conditions and facilitating the offender’s rehabilitation or community protection. In R. v. Singh, 2016 MBCA 38, the Manitoba Court of Appeal articulated the inquiry as follows:

Conditions of probation cannot be imposed for primarily punitive purposes, although a reasonable condition may have a residual punitive aspect to it. Conditions imposed under the residual clause must be ordered either for the purpose of protecting society, or facilitating the particular offender’s successful reintegration into the community, or both. Although reasonable conditions will generally be linked to the offence, this will not always be the case, and it may be that a reasonable condition is linked to the needs of the offender. As long as there is a nexus between the condition, the offender and the protection of the community and/or the offender’s reintegration into the community, and evidence supporting the existence of that nexus, the condition could be considered reasonable.

[21] In this case, the probation condition imposed by the Sentencing Judge was not for a primarily punitive purpose. There was a nexus to protection of the community and the offender’s rehabilitation. The Crown’s assertion that the Sentencing Judge imposed probation in conjunction with a conditional discharge instead of the conditional sentence order she really thought appropriate, does not find a foundation in the record.

[22] The Court of Appeal for Ontario has recently succinctly addressed the circumstances in which appellate intervention in sentencing is warranted in R. v. Normand, 2024 ONCA 473, at para. 3:

Appellate intervention in sentencing is warranted only if a sentence is demonstrably unfit or if a sentencing judge makes an error of law or principle that has an impact on sentence: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 25-26, citing R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. As stated in R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, at para. 13:

Sentencing courts are best‑positioned to craft a fit sentence for the offenders before them. Sentencing is a “profoundly subjective process”, and the sentencing judge “has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record” (R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 46). The sentencing judge also has “unique qualifications of experience and judgment from having served on the front lines” and “will normally preside near or within the community which has suffered the consequences of the offender’s crime” (R. v. M. (C.A.), [1996] 1 S.C.R. 500], at para. 91).

[23] The present case is almost a paradigm exemplar of these factors. The sentence imposed here was not demonstrably unfit, and the Sentencing Judge did not make an error of law or principle. In delivering sentence, she stated:

In considering if a conditional discharge is contrary to the public interest, I have considered all of the mitigating factors outlined above. While such a disposition is an exceptional one for this type of offence, Mr. S.’s antecedents and engaged approach to his rehabilitation does, in my view, lead me to conclude that a conditional discharge is the appropriate sentence.

[24] The Sentencing Judge canvassed all of the relevant factors in reaching her determination as to the appropriate sentence for the particular individual whom it was her responsibility to sentence. She was alive to both the aggravating and mitigating factors. She identified the following mitigating factors: the guilty plea, no prior criminal record, community engagement, gainful employment at a skilled job for a number of years, participation in an apprenticeship program at a local college, engaging in counselling, the impulsive nature of the offence, and that it was out of character.

[25] Sentencing judges who have heard the evidence are in the best position to craft an appropriate sentence for the offenders appearing before them. Judges of the Ontario Court of Justice, as stated in Parranto, indeed have the “unique qualifications of experience and judgment from having served on the front lines,” and preside “in the community which has suffered the consequences of the offender’s crime.” They are immersed daily in dealing with the types of offences that feature in this case.

[26] Sentencing is a profoundly subjective process. The Sentencing Judge appropriately weighed the relevant aggravating and mitigating factors, and came to her conclusion on the factors in this case, for this particular offender.

[27] The submissions of the Crown amount to an invitation for this Court to substitute its own view for that of the Sentencing Judge. That is not the proper role of an appellate court. An appellate court may not intervene simply because it would have weighed the relevant factors differently: Lacasse, at para. 49. The conclusions of the Sentencing Judge are due deference absent an error of law or principle that has an impact on sentence, or a sentence that is demonstrably unfit, which is not the case here.

Conclusion

[28] It is not the Court’s role to reweigh the factors relevant to sentencing unless the sentencing judge has exercised their discretion unreasonably: Lacasse, at para. 48; Normand, at para. 9. The Appellant has not persuaded me that the Sentencing Judge in this case made any errors that warrant intervention, or that the sentence is demonstrably unfit. The Appellant has not demonstrated an error on any of the grounds of appeal advanced.

Order

[29] The appeal is dismissed.

M.R. Gibson J. Date: October 7, 2024