R. v. Li, 2025 ONSC 2964

COURT FILE NO.: CR-24-40000473-0000

DATE: 20250520

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

XINGHUI LI

Schembri, F., counsel for the Crown

Goodman, A. and Pei, M., counsel for Mr. Li

Heard: January 28 and April 10, 2025

Pursuant to s. 486.4 (1) of the Criminal Code there is an order that any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way.

REasons for sentence

H. mcarthur J.:

Introduction

1Xinghui Li pleaded guilty before me to one count of distributing an intimate image without consent, contrary to s. 162.1(1) of the Criminal Code, R.S.C. 1985, c. C-46.

2The Crown argues that given the paramount sentencing objectives of denunciation and deterrence a custodial sentence of two years less a day is warranted. He is also seeking two years’ probation, and a DNA order on the secondary grounds.

3The defence counters that given the many mitigating factors in this case a conditional sentence followed by two years’ probation is fit and proportionate. While acknowledging that denunciation and deterrence are the primary sentencing objectives, the defence argues that a conditional sentence can properly reflect these goals.

Circumstances of the Offence

4Mr. Li met the victim R.W. through a WeChat group focused on playing mahjong. At the time, Mr. Li was 26 years old and living with his wife and infant daughter. R.W. was 19 years old and in Canada studying on a student visa. The two played mahjong together many times.

5In the weeks leading up to November 2022, the relationship evolved into a romantic one. In early November, Mr. Li began exhibiting jealousy. In the late evening hours of November 3, 2022, Mr. Li texted R.W. and told her he knew that she was with male friends and told her to go home. He also texted her a screenshot with a map of her location. As a result of the messages, R.W. decided that she would spend the night at her friend’s home. In the morning, Mr. Li went to the friend’s home and took R.W. back to her home. He told her to “stop hanging out with those guys.”

6In the late evening hours of November 16, 2022, R.W. met a friend for dinner and received a message from Mr. Li, telling her to go home. She ignored him and left the restaurant at approximately 6:00 a.m. on November 17. When R.W. returned to her home, she found Mr. Li in her bedroom, sitting on her bed, and staring at her.

7Mr. Li and R.W. wound up having vaginal intercourse. During the act of penetration, Mr. Li grabbed his cell phone and began recording R.W. She used her hand to block the camera to try to cover her face. The recorded video was less than one minute long.

8On November 18, 2022, Mr. Li sent R.W. two photos from the recording he made the day before. He also texted her the recording. Mr. Li told R.W. that he was going to post the video on a pornography website. Mr. Li also sent the video to one of R.W.’s friends. The video was also shared with her parents in China and her father’s co-worker.

9R.W. planned to meet with Mr. Li on November 20, 2022, so that he could delete the video in her presence. However, on November 19, 2022, Mr. Li messaged R.W. telling her he had posted the video to Pornhub and provided her with the link for the website.

10Mr. Li also posted a photo from the recording of the sexual intercourse to another website that purported to advertise R.W. selling sexual services. As a result of this posting, R.W. received several unwanted messages from unknown men.

11On November 19, 2022, R.W. went to the police. Mr. Li was arrested on November 22.

Impact on the Victim

12The Crown attempted to contact R.W. numerous times, but she did not respond. As a result, there is no Victim Impact Statement.

13That said, I have no doubt that the offence would have caused R.W. significant embarrassment and psychological harm.

Circumstances of Mr. Li

14Mr. Li is 29 years old. He is first offender.

15Mr. Li was born in Fujian Province, China. He has a younger sibling. Mr. Li reported that he had a happy and stable childhood.

16Mr. Li obtained his grade 11 level of education in China. He excelled academically and was one of the top students in his class. Unfortunately, as he entered high school, he encountered intense pressure to succeed academically, which negatively impacted on his mental health. The pressures led him to suffer from severe depression and he attempted to kill himself.

17Mr. Li then moved to Canada to continue his studies, in the hopes that the pressures would not be as daunting as in China. He attended Seneca College where he studied International Accounting and Finance. He completed a four-year program in two years. He then completed his master’s degree, in one year. During the early stages of the Covid pandemic Mr. Li also completed an online course in data analysis with the University of Toronto.

18While doing well in his studies, Mr. Li continued to struggle with mental health issues after coming to Canada. He suffered anxiety and depression and has attempted to kill himself several times. In 2019, Mr. Li returned to China to try to deal with his ongoing mental health issues. He was diagnosed with a severe depression and anxiety disorder and began seeing a psychiatrist and taking medication. His treatment, however, ended when he returned to Canada in 2020 after the Covid pandemic began. The stress of the early pandemic exacerbated his mental health issues, and he was struggling with depression when he committed the offence before the court.

19Following his arrest in November 2022, Mr. Li met with Dr. Shuo Xiang, a psychiatrist. Mr. Li first saw him in December 2022, and had three sessions with him. Mr. Li is now taking Cipolex to treat his depression and anxiety disorders, as well as Prozac and sleep medication.

20Despite his struggles with depression and anxiety, Mr. Li has a solid work history. Following his graduation in 2018 he worked as an administrative assistant for a marketing and printing company. At the same time, he worked part time for H&R Block as an income tax advisor, while also operating his own business delivering food. After his arrest on this matter, he was placed on a house arrest release order that interfered with some employment opportunities. However, he continues to support his family by working as an Uber Eats driver.

21Mr. Li first met his wife Yuqi Yang in 2015 when they were at Seneca together. They married in 2021. They have a daughter who was born in 2022. By all accounts Mr. Li is a loving and dedicated father. Ms. Yang told the author of the Pre-Sentence Report (“PSR”) that Mr. Li spends all his free time with their young daughter, reading to her and playing games. She described Mr. Li as “kind, family-oriented, and a great provider.” His wife does not work outside of the home and is entirely dependent on Mr. Li financially.

22Ms. Yang is, of course, upset that her husband had an affair. She is also shocked by his offending and feels empathy for the victim. Ms. Yang, however, is standing by Mr. Li, as she attributes his actions to the severe depression he was dealing with at the time. She also noted that while he was not a great husband to her because he cheated, he has always been “the best father.” Since his arrest, she notes that he has been taking medication to assist with his symptoms and has displayed devotion to his family. She describes her husband now as a “supportive and loving partner.”

23Mr. Li’s aunt and uncle spoke to the author of the PSR and both described Mr. Li as kind, hardworking and a smart person who excelled in his studies. They report that they have seen changes in Mr. Li since he was charged. They explained that he spends more time with his family and that he is committed to raising his young daughter.

24Mr. Li had a very positive PSR. The author described Mr. Li as presenting as “polite, respectful, and cooperative.” The author noted that Mr. Li demonstrates pro-social values, including his commitment to his family and his history of employment. The PSR also highlighted Mr. Li’s remorse. The author noted that Mr. Li takes responsibility for his actions and expressed regret for the pain he caused the victim.

25Mr. Li also wrote a letter expressing his deep regret for his offending. With “an extremely heavy heart” he expressed his “sincere apologies for the wrongs” he committed. He acknowledged that his actions not only violated the law but were a “severe invasion” of R.W.’s privacy that “caused immense harm.” He explained how he feels “profound shame” for his behaviour. Mr. Li also took the opportunity at the end of the sentencing hearing to apologize. Having had the opportunity to see and hear from Mr. Li, I accept that he is genuinely sorry for his offending and the harm he caused.

26Mr. Li spent 8 days in pre-sentence custody. He was then released on a strict house arrest bail for 12 months. His release order was then varied to a curfew, which he has been on for the past 17 months. He has complied fully with his bail.

27Mr. Li is a Permanent Resident of Canada. He will become inadmissible and lose his status if he is convicted and sentenced to a term of imprisonment longer than six months. He will not be at risk of being found inadmissible if he receives a conditional sentence or a custodial sentence of six months or less.

Sentencing Principles and Objectives

28As noted in R. v. Lacasse, 2015 SCC 64, at para. 58, 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.”

29Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute ... 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 ss. 718(a) to (f), including denunciation, general and specific deterrence, and rehabilitation.

30Section 718.1 sets out the fundamental principle of sentencing, which is that any sentence imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

31The Criminal Code lists several other principles to guide sentencing judges. The parity principle is set out in s. 718.2(b) and provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” Given the highly individualized nature of the sentencing process, however, the sentencing principle of parity remains secondary to proportionality: R. v. Parranto, 2021 SCC 46, at para. 38. Sentences imposed for offences of the same type will not always be identical: R. v. Mann, 2010 ONCA 342, at para. 17; Lacasse, at paras. 53-58.

32The restraint principle is reflected in s. 718.2(d) and provides that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. Subsection 718.2(e) highlights the particular importance of restraint and requires that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders…”

33The various sentencing objectives and principles often compete with one another, in that maximizing the denunciatory or deterrent effect of the sentence may be contrary to the rehabilitation of the offender and the principle of restraint, and vice versa. That said, the competing objectives and principles must be balanced in a way that respects the principle of proportionality.

34Pursuant to s. 742.1 of the Criminal Code, with some exceptions, if a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may impose a conditional sentence. A court may only do so if satisfied that allowing the offender to serve their sentence in the community does not endanger the safety of the community and is consistent with the fundamental purpose and principles of sentencing.

35Since sentencing is highly individualized, the determination of a just and appropriate sentence requires the court to assess the aggravating and mitigating factors related to both the offence and the offender. Such an assessment is also mandated by s. 718.2(a) of the Criminal Code, which states that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. I turn now to the aggravating and mitigating factors in the present case.

Aggravating and Mitigating Factors

Aggravating Factors

36Mr. Li’s offending was not impulsive or isolated. Instead, it was planned and deliberate. Mr. Li took several steps, including sending the images to R.W.’s parents, to a colleague of her father’s and to her friend. He also posted a video on Pornhub and posted an image on another site, purporting to be R.W. advertising her sexual services. Each time he sent or posted the images, he had the opportunity to reflect on what he was doing and refrain. Yet he continued.

37Moreover, Mr. Li posted a video, which is more serious than a single image. As noted in R. v. Boucetta, 2024 ONSC 1046, at para. 75, a video is actually hundreds of still images and can be turned into the same.

38Mr. Li used the victim’s phone number when posting the fake ad along with the photo. This led to R.W. receiving several unwanted messages from unknown men.

39There is no way of knowing if anyone downloaded the images before they were erased from the sites. While I do not have a victim impact statement, it seems evident that the knowledge that the images may potentially still be out there and available to viewers would add to the pain, stress and worry suffered by the victim.

40Mr. Li was in a relationship with the victim. His actions represent an egregious abuse of the trust that the victim placed in him. He violated her privacy and dignity of the person in a staggering way.

41Moreover, the fact that Mr. Li offended against his intimate partner is statutorily aggravating pursuant to s. 718.2(a)(ii).

Mitigating Factors

42Mr. Li is a first offender. He is 29 years old, and apart from the offence before the court, he has lived a pro-social life.

43Mr. Li has struggled with significant mental health issues. He was dealing with depression when he committed the offence. Since his arrest, he consulted with a psychiatrist and is taking medication to assist with his symptoms. He is open to continuing treatment.

44Despite his challenges with his mental health, Mr. Li managed to obtain a high level of education and excelled in his studies. The diligence and dedication he showed in his academic pursuits highlight Mr. Li’s rehabilitative potential.

45Equally, Mr. Li has shown commitment and perseverance in his employment efforts. He has a strong work ethic and is hardworking. That will also be of assistance as Mr. Li attempts to move forward from this incident.

46Mr. Li is a Permanent Resident. If he is sentenced to a custodial sentence of more than six years he will become ineligible for Canadian citizenship and will likely be deported. That would have a devastating impact on his family. He is their sole financial support. His young daughter loves him and would miss her father. But even if he receives a sentence that does not render him ineligible, his efforts to obtain Canadian citizenship will be negatively impacted. Any time spent serving a sentence or on probation will not count towards the residency requirement for citizenship.

47Mr. Li has extremely strong family support. He is also a loving and involved father to his young daughter, something that speaks well to his character.

48Mr. Li has fully complied with the terms of his release order for approximately two and a half years. This supports that the incident was out of character and that Mr. Li has good rehabilitative potential. Further, he was on a strict house arrest bail for about a year, which impinged on his liberty and amounted to a form of punishment. While I decline to assign a particular number, I consider his time on bail as a mitigating factor: R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555 (C.A.), at para. 29; R. v. Joseph, 2020 ONCA 733, at para. 108; R. v. Marshall, 2021 ONCA 344, at paras. 52-53.

49Mr. Li pleaded guilty, saving the court time and resources at a time when the Superior Court of Justice in Toronto is grappling with significant backlog. His plea of guilt is also indicative of remorse.

50And apart from the plea, Mr. Li has demonstrated genuine remorse for his actions. This came across clearly in the PSR, the letter he drafted and his comments at the end of sentencing. Mr. Li also has displayed true insight into the harm he caused to the victim.

51I turn now to my analysis as to what a fit and proportionate sentence would be in this case.

Analysis

52The offence of distributing an intimate image without consent was enacted by Parliament in 2014 and came into force in March 2015. Over the last decade, lower courts have grappled with what constitutes a fit and proportionate sentence for this crime. While there is a developing body of caselaw, there are only two appellate court decisions, both from Manitoba: R. v. S.C.C., 2021 MBCA 1; R. v. McFarlane, 2018 MBCA. The Ontario Court of Appeal has yet to weigh in on the appropriate range for the offence.

53Both the Crown and defence provided numerous authorities in support of their relative positions. As highlighted by defence counsel, some courts have concluded that conditional sentences are appropriate: see R. v. J.B., 2018 ONSC 4726; R. v. J.A.H., 2021 SKQB 9; R. v. Boucetta, 2024 ONSC 1046; R. v. G.S., 2024 ONCJ 79. As stressed by the Crown, other courts have determined that custodial sentences were required for a s. 162.1(1) offence: see S.C.C.; R. v. A.C., 2017 ONCJ 317; R. v. J.R., 2018 ONCJ 851; R. v. Ha, 2023 ONCJ 75; R. v. Mikhail, 2023 ONCJ 432; R. v. Weedon, 2023 ONCJ 317.

54I have carefully considered the authorities relied upon by counsel. As the court explained in R. v. Friesen, 2020 SCC 9, at para. 33, courts cannot arrive at a proportionate sentence based solely on first principles, but rather must “calibrate the demands of proportionality by reference to the sentences imposed in other cases.” Of course, given the individualized nature of sentencing, cases can often be distinguished on their facts. Such was the case here.

55That said, two things emerge from the authorities provided by counsel. First, while it seems that the range is still being sorted out, I am satisfied that the sentences sought by both the Crown and the defence fall within the range.

56Second, the paramount sentencing objectives for the offence of distributing an intimate image without consent must be denunciation and deterrence. The crime is both a sexual offence and a privacy offence: S.C.C., at para. 33; McFarlane, at para. 24. It is a gendered crime – victims are predominantly women. It is also an offence that has the potential to cause significant harm to victims. The offence is also becoming increasingly prevalent: Boucetta, at para. 26.

57Courts must clearly denounce such behaviour by imposing exemplary sentences. Moreover, courts must send a clear message to those who might be tempted to humiliate and degrade others by distributing intimate images without consent that they will face significant sentences if they do so.

58On the other hand, even when denunciation and deterrence are the paramount sentencing objectives, the sentencing judge retains discretion to assign significant weight to other factors, such as rehabilitation, in giving effect to the fundamental principle of proportionality: R. v. Friesen, 2020 SCC 9, at para. 104; R. v. Rayo, 2018 QCCA 824, at paras. 103, 107-8.

59Mr. Li is a first offender, with significant rehabilitative potential. He pleaded guilty and has shown genuine remorse and true insight into the harm he caused. He committed the offence while struggling with mental health issues. Since his arrest, he has taken steps to address his underlying issues and is open to further treatment and counselling. He has been on bail for over two years, including about a year on house arrest. His compliance with the terms of his release speaks well to his rehabilitative potential. He has strong family support.

60Mr. Li is also the sole financial support for his wife and young daughter. A lengthy jail sentence would be financially disastrous for his family. It would also mean that he would become ineligible for Canadian citizenship and would likely be deported. That would have a devastating impact on his wife and young child. While considerations about the impact of a lengthy sentence on family members, or potential immigration consequences, cannot be relied upon to reduce a sentence to the point that the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender, such circumstances are still relevant when fashioning a fit and proportionate sentence: R. v. G.G., 2023 QCCA 305, at paras. 33 and 36.

61In the circumstances, the Crown submits that a sentence of less than two years is appropriate. I agree. As a result, a conditional sentence is an available sentence subject to two questions. First, would allowing Mr. Li to serve his sentence in the community endanger the public? In my view, the answer is clearly no. The over two years Mr. Li has been on bail without difficulty satisfies me that there would be no risk to the public if he were given a conditional sentence. I am confident that he would abide by the terms of the order.

62Second, would a conditional sentence in the circumstances of Mr. Li’s case be consistent with the fundamental purpose and principles of sentencing? This is a more difficult question. However, considering the aggravating and mitigating factors in this case, I have determined that the answer is yes. While the offence of distributing an intimate image without consent will often call for a custodial sentence, I am satisfied that allowing Mr. Li to serve his sentence in the community is in accord with the purpose and principles of sentencing.

63In so finding, I keep in mind that a conditional sentence can address the sentencing objectives of denunciation and deterrence: R. v. Proulx, at paras. 22, 67, 102. Moreover, as explained in Friesen, at para. 124, courts should encourage efforts toward rehabilitation because it offers society long-term protection. Rehabilitation may also weigh in favour of a reduced term of incarceration followed by probation since a community environment is often more favourable to rehabilitation than prison: Proulx, at paras. 16 and 22.

64As stated in Proulx, at para. 102, a lengthier conditional sentence can add to the punitive aspect of a sentence. While defence counsel urges me to impose a conditional sentence of 18 months, I am sentencing Mr. Li to a conditional sentence of 22 months. The lengthier sentence ensures that the objectives of denunciation and deterrence are emphasised.

65Further, as explained in Proulx, at paras. 102 and 107, conditional sentences can provide significant denunciation and deterrence when onerous conditions are imposed. To add to the punitive nature of the sentence, I am ordering that the house arrest component apply for the duration of the sentence: R. v. K.K., 2020 ONSC 7198, at para. 34.

66While specific deterrence is not a significant objective in this case, it is also important to note that if Mr. Li were to violate the terms of his conditional sentence, there is a presumption that he would serve the remainder of his sentence in jail: Proulx, at para. 39. As noted in R. v. R.S., 2023 ONCA 608, at para. 73, if a breach occurs early in the sentence, Mr. Li may end up being incarcerated for longer than he would have been if he had initially been sentenced to incarceration.

67I am also ordering that Mr. Li complete 60 hours of community service as part of his conditional sentence. This will address the sentencing objectives of reparations to the community, as well as the promotion of a sense of responsibility in Mr. Li and an acknowledgment of the harm done to the community. As explained in Proulx, at para. 112, by imposing community service orders, offenders will be seen by members of the public as paying back their debt to society, which will assist in contributing to public respect for the law.

68The terms of the conditional sentence order are attached as Appendix “A”.

69Following the completion of the conditional sentence order, I am placing Mr. Li on probation for two years. The terms of the probation order are attached as Appendix “B”.

70I turn now to consider the ancillary orders.

71Distributing an intimate image without consent is a secondary designated offence, and the Crown is seeking a DNA order.

72Pursuant to s. 487.051(3) of the Criminal Code, I am satisfied that it is in the best interest of justice to make the requested order, based on the nature of the offence, the circumstances surrounding the offence and the minimal impact that the order will have on Mr. Li’s privacy and security of the person.

73As a result, I make an order authorizing the taking of samples from Mr. Li for the purpose of DNA testing.

74Given that Mr. Li will be serving his sentence conditionally, and in a position to work, I am not persuaded that the victim surcharge poses an undue hardship. Mr. Li must pay the amount of $200. However, given his financial obligations to his family, he will be given one year to pay.

Justice Heather McArthur

Released: May 20, 2025

Appendix “A”- Terms of Conditional Sentence for Xinghui Li

Statutory conditions:

1. Keep the peace and be of good behaviour.

2. Appear before the court when required to do so.

3. Report as the Court directs (see Reporting in the Additional Conditions) in person to a supervisor and thereafter report when required by the supervisor and in a manner directed by the supervisor.

4. Remain in Ontario unless you have prior written permission from the Court or the supervisor to leave the province.

5. Notify the court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation.

Additional Terms

6. Report in person to a supervisor within two working days and after that, at all times and places as directed by the supervisor or any person authorized by a supervisor to assist in your supervision.

7. Remain in your residence, or on the property of your residence, at all times,

EXCEPT

i. for three hours each week, to be set in advance with your conditional sentence supervisor, in order to acquire the necessities of life.

ii. for any medical emergencies involving you or any member of your immediate family.

iii. for going directly to and from or being at school, employment, seeking employment, court attendances, religious services and legal or medical or dental appointments.

iv. for going directly to or from and being at assessment, treatment or counselling sessions.

v. for carrying out any legal obligations regarding compliance with this conditional sentence order, including completing community service hours.

vi. you will confirm your schedule in advance with your supervisor setting out the times for these activities.

vii. with the prior written approval of the supervisor. The written approval is to be carried with you during these times.

8. This home confinement condition will be in effect for the full duration of the sentence.

9. Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with R.W.

10. Do no be within 100 meters of any place where you know R.W. to live, work, go to school, frequent or any place you know her to be except for required court attendances.

11. Complete 60 hours of community service, to be completed in 18 months.

12. Do not possess any weapon(s) as defined by the Criminal Code (for example: a BB gun, pellet gun, firearm, imitation firearm, crossbow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person).

13. Attend and actively participate in all assessment, counselling, and rehabilitative programs as directed by you supervisor, in particular for coping with stress and psychiatric or psychological issues.

14. Sign any release of information forms requested to enable your supervisor to monitor your attendance and completion of any assessments, counselling, or rehabilitative programs as directed.

Appendix “B”- Probation Terms for Xinghui Li

Statutory conditions:

1. Keep the peace and be of good behaviour.

2. Appear before the court when required to do so by the court.

3. Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or supervisor of any change in employment or occupation.

Additional Terms

4. Report in person to a probation officer within two working days of the end of your conditional sentence order and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.

5. Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with R.W.

6. Do not be within 100 meters of any place where you know R.W. to live, work, go to school, frequent or any place you know her to be except for required court attendances.

7. Attend and actively participate in all assessment, counselling, and rehabilitative programs as directed by probation, in particular for coping with stress and psychiatric or psychological issues.

8. Sign any release of information forms requested to enable your probation officers to monitor your attendance and completion of any assessments, counselling, or rehabilitative programs as directed.

R. v. Li, 2025 ONSC 2964