Reasons for Sentence

Court File No.: CR-23-70000191, CR-23-700000192
Date: 2025-03-06
Ontario Superior Court of Justice
Between:
His Majesty the King – and – S.F.

Appearances:
A. Linds, for the Crown
S. Shikhman, for S.F.

Heard: February 25, 2025

Justice P.A. Schreck

I. Facts

A. The Offences

(i) Mischief to Data

[1] In 2020, S.F., a man in his 40s, began a relationship with R.J., a woman in her early 20s with little life experience who had recently left the sheltered environment she had grown up in. The relationship quickly became toxic, in large part because of S.F.’s possessive and controlling behaviour.

[2] S.F. was charged with a number of offences in relation to R.J. in October 2020 and further offences in January 2021. Following a trial, he was found guilty of one count of mischief to computer data, contrary to s. 430(5) of the Criminal Code, based on a finding that he had changed the passwords to R.J.’s e-mail and social media accounts, thereby preventing her from having access to them. He was also found guilty of one count of failing to comply with a recognizance, contrary to s. 145(5)(a) of the Code, based on a finding that he had contact with R.J. despite being prohibited from doing so by the terms of a recognizance of bail.

[3] S.F. is in his mid-40s, has no criminal record and is employed in the financial services industry. At the time of the offences, he was addicted to cocaine but has since recovered from his addiction. He has served the equivalent of 23 days in presentence custody. Counsel agree that no further imprisonment is required, but otherwise disagree as to the appropriate disposition. Crown counsel submits that there should be a suspended sentence with 18 months of probation. Counsel for S.F. submits that an absolute discharge is appropriate.

[4] The following reasons explain the sentence that will be imposed in this case.

(ii) Failure to Comply With a Recognizance

[5] The details of the offences are set out in detail in my reasons for judgment, reported at 2024 ONSC 6045. About a month after the beginning of the relationship, while they were both at S.F.’s apartment, he found a text message on R.J.’s phone which led him to conclude that she had had some kind of intimate encounter with another man, causing him to become upset. An argument ensued and S.F. indicated that he wished to end the relationship, which R.J. did not want to happen. After the argument ended, S.F. asked R.J. for the passwords to her mobile phone and laptop so that he could examine their contents. She provided them to him.

[6] The following day, R.J. asked for her phone back. S.F. initially refused, telling her that he would hold onto it until “he learns to trust me again.” He eventually returned the phone and laptop to her and she went to work. R.J. later found out that the passwords to her e-mail and social media accounts had been changed and she could not access them. A series of text messages between them that was made an exhibit at trial showed that she made repeated requests for him to allow her to access her accounts. He agreed to provide them but made a number of excuses for why he could not do so until later. Later the same day, she went to his apartment and he provided her with the passwords.

[7] S.F. was arrested on October 7, 2020 as a result of allegations made by R.J. and charged with a number of offences. On October 9, 2020, he was released on a recognizance that included a condition that he have no direct or indirect contact or communication with R.J. On the same day, R.J. went to his apartment. He allowed her to enter and she stayed there for the next few days. They maintained regular contact for the next several months until S.F.’s arrest on new charges in January 2021. There is no suggestion that R.J. did not voluntarily maintain contact with S.F.

B. The Offender

[8] S.F. is in his mid-40s and has no criminal record. He immigrated to Canada from Lebanon in 2002. His mother and sisters still live there and he provides them with financial support.

[9] After completing business school, he worked in the financial services sector, where he achieved a number of professional qualifications, including as a Certified Financial Planner. At the time of sentencing, he was employed as a Vice-President for a company and had an outstanding offer of employment from another company. I am advised that a criminal record would jeopardize both his current employment and the offer of employment.

[10] S.F. was addicted to cocaine at the time of the offences and used it regularly. He has since enrolled in Narcotics Anonymous (“NA”) and has not used cocaine for over three years. He currently volunteers for a non-profit organization that provides opportunities for men with addiction issues to discuss how addictions affect their relationships.

[11] The Court was provided with a number of letters of support from S.F.’s friends, business associates and individuals who know him through NA and his volunteer work.

[12] R.J. was invited to provide a victim impact statement but declined to do so.

II. Analysis

A. General Sentencing Principles

[13] Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society ….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718(a) to (f), including denunciation, general and specific deterrence and rehabilitation. Determining an appropriate sentence requires the court to “prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender”: R. v. Morris, 2021 ONCA 680, para 58.

B. Mischief to Data

(i) Sentencing Range

[14] Mischief to data is a hybrid offence with a maximum penalty of imprisonment for 10 years where the Crown elects to proceed by indictment. As was explained in R. v. Parranto, 2021 SCC 46, paras 16-18, there is a distinction to be drawn between “formal” or “established” ranges expressly created by an appellate court for certain categories of offences and “informal” or “discerned” ranges based on a review of similar cases.

[15] I am unaware of any caselaw establishing a formal range for this offence. However, a review of the following cases suggests that there is a wide discerned range that includes discharges on one end and imprisonment for up to one year on the other, depending on the circumstances in which the offence was committed:

• R. v. Vachon-Desjardins, 2022 ONCJ 43: The offender pleaded guilty to mischief to data, theft of data, extortion, and participating in the activities of a criminal organization. He and others had hijacked data from 17 victims in Canada as well as others elsewhere in the world using ransomware and had extorted at least hundreds of thousands of dollars. He had an unrelated record for drug trafficking and was remorseful. He was sentenced to imprisonment for one year for mischief to data as part of a global sentence of six years and eight months.

• R. v. Mackie, 2013 ABPC 116, aff’d 2014 ABCA 221: The offender pleaded guilty to four counts of unauthorized use of a computer with intent to commit mischief to data, as well as internet luring, extortion, several child pornography offences, invitation to sexual touching, personation with intent, and failing to comply with a recognizance. He had online communications with more than 21 children between the ages of 11 and 16 and convinced them to provide him with sexually explicit images of themselves and to perform sexual acts while online. He also accessed the social media accounts of some of his victims in order to extort them into providing him with intimate images and to impersonate them in order to initiate contact with their friends. The offences caused significant harm to the victims. The offender had no prior criminal record and had limited insight into his offending behaviour. He was sentenced to imprisonment for one year on each mischief to data count, to be served concurrently, as part of a global effective sentence of 11 years.

• R. v. Hannah, 2024 ONSC 2456: The offender pleaded guilty to mischief to data as well as child luring, transmitting and possessing child pornography, obtaining nude images by false pretences and publishing intimate images without consent. He had obtained and distributed nude images of 12 different victims, some of whom were underage. The mischief to data conviction was based on the offender having hacked into a messaging account of one of the adult victims in order to obtain nude images of her. The offences had significant impact on the victims. The offender was youthful, had no prior criminal record and was remorseful for his conduct. He was sentenced to imprisonment for six months for mischief to data as part of a global sentence of five years.

• R. v. Weedon, 2023 ONCJ 317: The offender was convicted after trial of mischief to data, making intimate images available without consent and criminal harassment. He had accessed an ex-girlfriend’s social media account, changed her password and then used the account to post nude images of her. He had also repeatedly communicated with her in a harassing manner. The offences caused significant psychological harm to the victim. The offender had no criminal record and a good employment history but also had a history of drug use. He did not demonstrate any remorse. He was sentenced to imprisonment for six months followed by three years of probation for the mischief to data conviction to be served concurrently with a one-year sentence for the intimate images conviction and another six months for criminal harassment.

• R. v. M.K., [2004] O.J. No. 2574 (C.J.): The offender pleaded guilty to mischief to data, mischief to property, distributing child pornography and criminal harassment. He had posted nude pictures of his underage girlfriend online. The facts of the mischief to data offence are not clear from the decision. The offender was 20 years old and had family support. He received a global sentence of imprisonment for six months and 24 months of probation.

• R. v. Charania, 2014 ONSC 1695: The offender, a nurse, was convicted of mischief to data after a summary conviction trial. He had hacked into the e-mail account of a former employer and forwarded several e-mails to himself relating to his employment. He had no criminal record and was facing collateral professional disciplinary consequences. The summary conviction appeal court imposed a conditional discharge with probation for nine months.

• R. v. Geller, [2003] O.J. No. 357 (S.C.J.): The offender pleaded guilty to mischief to data and possession of chid pornography. He had obtained 400 credit card numbers by hacking, which he used to access Internet sites, and possessed 101 child pornography images. The offender was a university student with no prior record. An absolute discharge was affirmed on appeal.

(ii) Relevant Factors

[16] As these cases show, the offence of mischief to data can be committed in a variety of contexts, including financial crimes, crimes involving the exploitation of children, criminal harassment and the distribution of intimate images without consent. The context in which the offence is committed will be a significant factor in determining where within the range a particular case falls.

[17] Of particular importance will be the offender’s motive in interfering with computer data and the effect of the interference, which relate to the responsibility of the offender and the seriousness of the offence, respectively. Where the offender interferes with computer data as a means of committing a serious offence, such as the possession or distribution of child pornography, criminal harassment, extortion or serious fraud, his or her degree of responsibility will be significant. Similarly, where the mischief to data has a significant effect, such as the dissemination of intimate images, the exploitation of children, or a large financial loss by the victim, this will increase the seriousness of the offence.

(iii) Aggravating and Mitigating Factors in this Case

[18] In this case, S.F. changed the passwords of an intimate partner who was much younger than him and vulnerable in order to manipulate and control her. In my view, this was a form of abuse of an intimate partner and therefore a statutorily aggravating factor by virtue of s. 718.2(a)(ii) of the Criminal Code. S.F.’s degree of responsibility was significant.

[19] On the other hand, the effect of the offence was R.J.’s inability to access her e-mail and social media accounts for a limited period of time, which mitigates its seriousness.

[20] Also relevant is the fact that S.F. has no prior criminal record and the offence was committed while he suffered from a cocaine addiction, which I have no doubt affected his judgment and played a role in the commission of the offence. In addition to this, S.F. has suffered collateral consequences as a result of this offence, including presentence custody of 23 days and the prevention of advancement of his career.

[21] Based on the sentencing range outlined earlier, this offence could reasonably have attracted a further custodial sentence. However, the Crown has very fairly not asked for a custodial sentence. Given that no further custody is required, the issue that must be determined is whether there should be a suspended sentence or a discharge, and if the latter, whether it should be absolute or conditional.

(iv) Is a Discharge Appropriate?

[22] Section 730(1) of the Criminal Code provides that an absolute or conditional discharge can be granted provided that the offence is not punishable by a maximum of 14 years or life and provided that granting the discharge is “in the best interests of the accused and not contrary to the public interest.” The factors to be considered in determining whether a discharge is appropriate were outlined by Durno J. in R. v. Berseth, 2019 ONSC 888, paras 43-47:

In terms of the first prong, it presupposes that specific deterrence is not a relevant consideration, except to the extent required in a probation order, nor is the offender’s rehabilitation through correctional or treatment centres required, except to the same extent. Normally, the offender is a person of good character, without previous conviction, it is not necessary to enter a conviction to deter him or her from future offences or to rehabilitate them and, while not essential, that the entry of a conviction may have significant adverse repercussions: R. v. Sanchez-Pino (1973), 13 C.C.C. (2d) 53 (Ont.C.A.); R. v. Fallofield (1973), 1973 1412 (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.); R. v. Myers (1997), 1977 1959 (ON CA), 37 C.C.C. (2d) 182 (Ont. C.A.)

As regards the public interest prong, while the concern for general deterrence must be given due consideration, that does not preclude the judicious use of the provision: Fallofield, at para. 21 (6). However, if there is a necessity for a sentence that will deter others, it is a factor telling against a discharge.

This view was reiterated in R. v. Lu, 2013 ONCA 324:

... In determining whether it would be contrary to the public interest, one consideration is whether the sentence will be a deterrent to others who might be minded to commit a like offence.

In Sanchez-Pino, the Court of Appeal held:

Obviously the section is not confined to “simple cases of possession of marijuana”. It is not confined to any class of offences except to the extent I have noted. On the other hand, it is only common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditional one, is “not contrary to public interest”. In some cases, the trivial nature of the offence will be an important consideration; in others, unusual circumstances peculiar to the offender in question may lead to an order that would not be made in the case of another offender.

In R. v. Hayes, [1999] O.J. No. 938 (S.C.J.), Hill J. provided the following summary with regards to discharges. Discharges are not restricted to trivial matters. Where an offender has acted out-of-character, perhaps in the context of unusual pressure or stress a discharge may be fit. Where a criminal record will have a tendency to interfere with employment or perhaps important travel, a discharge may be given serious consideration. A suspended sentence is not necessarily a greater deterrent than a discharge.

[23] I am satisfied that the offence was out of character for S.F. He reached his 40s without being convicted of a criminal offence, and it seems that he was suffering from a cocaine addiction at the time which, as I have indicated, likely affected his judgment. In my view, a conviction is not necessary for S.F.’s rehabilitation or to deter him from committing further offences. In addition to this, it appears that a conviction could have serious implications for his employment. It is clear that a discharge would be in S.F.’s best interests.

[24] The more difficult question is whether a discharge would be contrary to the public interest. As noted, the offence was committed in relation to an intimate partner, which increases its seriousness. General deterrence is always a concern in cases involving crimes committed in a domestic context: R. v. Cunningham, 2023 ONCA 36, para 26. However, the extent to which a sentence is likely to deter others is a question of degree. In this case, the parties agree that a custodial sentence is not required. Whether or not the need for deterrence is such that a discharge would be contrary to the public interest will depend on the extent to which a suspended sentence will have a greater deterrent effect than a discharge. It is well established that a “suspended sentence is not necessarily a greater deterrent to others than a conditional discharge”: R. v. Hayes, [1999] O.J. No. 938 (S.C.J.), para 32; Berseth, 2019 ONSC 888, para 47.

[25] While I consider this to be a close call, I am ultimately persuaded that a discharge would not be contrary to the public interest in the circumstances of this case.

(v) Should the Discharge be Absolute or Conditional?

[26] As noted earlier, given the domestic context in this case, the objective of general deterrence must be given consideration. A term of probation, involving as it does some restriction on the offender’s liberty and the threat of further sanction if the conditions are breached, has some deterrent effect, particularly where it involves some community service: R. v. Voong, 2015 BCCA 285, paras 39-43; R. v. Jock, 2023 ONSC 6019, para 63; R. v. Kaushal, [2022] O.J. No. 3946 (S.C.J.), at para. 147. While I am satisfied that the objective of general deterrence does not require a suspended sentence, in my view an absolute discharge would fail to give sufficient effect to it. A conditional discharge is required in the circumstances of this case.

C. Failing to Comply With a Recognizance

[27] Failing to comply with a recognizance is an offence against the administration of justice. Respect for the judicial system is undermined when court orders are disobeyed. The seriousness of the offence will also depend on the nature of the condition that was imposed and the consequences of the breach. A wide range of conduct can constitute the offence, from minor technical breaches such as missing a curfew by a few minutes to very serious conduct, such as committing a crime against someone with whom contact is prohibited.

[28] In this case, the bail condition that S.F. breached was imposed in order to protect R.J. However, R.J. did not want that protection and it was she who initiated the breach by attending S.F.’s home as soon as she learned that he had been released on bail. To be clear, this does not excuse S.F.’s conduct. He was subject to a court order requiring him to have no contact with R.J. regardless of what she wanted.

[29] In this case, the purpose of the condition that was breached was not undermined because the complainant did not want the protection that the condition was designed to provide her. However, the repeated and longstanding nature of the breach demonstrated significant disregard for a court order.

[30] While I do not view this as a minor or technical breach, in all the circumstances I am satisfied that a discharge would be in S.F.’s best interests and not contrary to the public interest.

III. Disposition

[31] For the offence of mischief to computer data (Count 6 on indictment CR-23-700000192), S.F. is discharged conditional on his completion of a term of probation for 12 months on the following conditions in addition to the statutory conditions:

• report to a probation officer within two business days and thereafter as directed;
• have no direct or indirect contact or communication with R.J. and not be within 200 metres of any place where you know her to be;
• complete 30 hours of community service.

S.F. may complete his community service by continuing to volunteer at the organization referred to earlier, provided he is able to provide documentation of having done so to the satisfaction of his probation officer.

[32] For the offence of failing to comply with a recognizance (Count 3 on indictment CR-23-70000191), S.F. is discharged absolutely.

[33] Given the nature of the offences for which S.F. was convicted, I decline to make a DNA order.

Justice P.A. Schreck
Released: March 6, 2025

[1] An abbreviated oral version of these reasons was delivered in open court. In the event of any disagreement between those oral reasons and these written reasons, the written reasons should be taken as correct.

[2] S.F. was found not guilty on other counts in the Indictment.