R. v. SA, 2022 MBPC 28

CITATION: R. v. SA , 2022 MBPC 28 THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) S. Sivarouban ) for the Crown ) -and- ) ) ) SA ) B. Hoyt ) for the Accused ) ) ) ) ) Reasons for Decision ) Delivered: May 16, 2022 HEINRICHS P.J. INTRODUCTION [ 1 ] SA and KD had been in an on and off boyfriend/girlfriend relationship for some four years. In May of 2020, when they were both in their early 20’s, they had broken up for a period of time, during which time KD had a sexual relationship with another male.

Some 10 months later – on March 6, 2021 – when SA found out about the relationship she’d been in the year previous - they had a verbal argument during a telephone call. SA followed this call up by phoning and text messaging KD repeatedly. He phoned approximately 200 times and sent approximately 150 text messages. The text messages included messages that he was going to kill whomever she had been “cheating with”, that she could call the cops, “IDC”, meaning, “I don’t care”, and that he was going to expose her by posting nude photos of her on “everything”.

He then went ahead and posted approximately 15 nude photos of her on his personal Twitter account. As he had around 434 followers on his Twitter account at the time, all of them would have immediately received the photos in their inbox. As well, he directly tweeted the photos to KD. Within an hour she had reported this to the police and within five hours, just after midnight the following day, the police attended to SA’s home to arrest him.

During this time, the photos were deleted from his account. [ 2 ] The police released him on an undertaking later that morning and one of the very first things SA did after being released was to text KD, asking her to drop the charges, thereby breaching his no contact condition on the Undertaking he had just agreed to.

THE CHARGES THAT WERE PLEAD TO AND THE SENTENCE WHICH IS BEING SOUGHT [ 3 ] SA has admitted to criminal conduct in all of this by pleading guilty to knowingly publishing intimate images of KD without her consent and to breaching his undertaking by having contact with KD while on a no contact condition. In addition to probation and collateral orders being sought, the Crown asked that I impose a sentence of one year in custody on the publishing intimate images charge and one further month of custody on the breach of undertaking.

Defence Counsel agreed with the probation and collateral orders being sought, but asked that the custody sentence be served by way of a Conditional Sentence Order of up to 18 months. [ 4 ] What is the least restrictive sentence that I can impose, which will send the message to SA and other like minded individuals

tempted to harm an ex partner in this way, after taking his personal circumstances into consideration? THE LAW ON PUBLISH/DISTRIBUTE/TRANSMIT INTIMATE IMAGES [ 5 ]

Section 162.1 of the Criminal Code is new law – less than ten years old. Parliament has enacted this

section of the Code to deal with individuals in society who take advantage of the recent advances in technology to get back at or harm individuals by cyberbullying. Parliament was under pressure to act after the suicides of Rehtaeh Parsons and Amanda Todd – after being “cyberbullied”, where they had been subjected to the non-consensual distribution of intimate images. [ 6 ] In a 2021 UBC Law Review

article ( UBC Law Review Vol. 54 No. 3) entitled “Clearing Your History: A Review of Non- Consensual Distribution of Intimate Images in Canada and Future Responses”, the authors, Richard Jochelson, David Ireland and Hannah Taylor note: “It is perhaps unsurprising that the victims of NCDII (that is “non-consensual distribution of intimate images”) are most often women and girls. Women are 1.7 times more likely to be victimized by the sharing of non-consensual intimate images.

American and Canadian studies have found that the majority of images uploaded to websites dedicated to NCDII, up to 91.8% are women.” [ 7 ] They then go on to explain the potential harm that is caused: “Whether or not the original NCDII post is removed, once an intimate image is given a public life online there is no way of halting its further distribution completely; even legal tools are rendered ineffective due to jurisdictional protections. In addition, the anonymity available to online users makes it easy to ruthlessly comment on and share images without social backlash.

The combination of these facts means that the non-consensual distribution of intimate images can have enduring and detrimental effects on its victims both on and offline. Harm can flow not only from the non-consensual distribution itself but also from the knowledge that this offence may never, in effect, end.

Harms resulting from NDCII range from humiliation, public shaming, and a loss of confidence to unemployment, depression, forced identity changes and potentially suicide.” [ 8 ] As this is a whole new area of law, it takes some time for the Appeal Courts and the Supreme Court of Canada to interpret the sections and set out some sentencing guidelines. The Manitoba Court of Appeal has now released two decisions in which they have done that. The first decision was R. v. McFarlane , 2018 MBCA 48 , in which written reasons were released on May 4, 2018.

Mainella J., on behalf of the court, explained the offence of distribution of an intimate image without consent as follows: “It is a sexual offence and a privacy offence, and sentences for it must reflect both of these aims of the legislation. Deterrence and denunciation are the primary sentencing objectives and such conduct typically will result in a custodial sentence.” [ 9 ] In McFarlane , the intimate images were sent to the victim and her sister by email, as part of a sextortion scheme.

The Court did not vary the sentence of six months incarceration – imposed concurrently to the other offences in the sentencing – but stated that this was on the low end of the range. [ 10 ] The second Court of Appeal decision, R. v. S.C.C., 2021 MBCA 1 , was released on January 7, 2021. In this decision, the history and significance of this

section is explained in more detail. Lemaistre, J., on behalf of the court, stated the following: “The offence of distribution of an intimate image without consent was enacted by Parliament in 2014 in order to address “the particularly vile and invasive form of cyberbullying involving the non-consensual distribution of intimate images” ( House of Commons Debates, 41-2, vol 147, No 25, (27 November 2013) at 1436 (Hon Andrew Scheer), online (pdf): Parliament of Canada, www.ourcommons.ca/Content/House/412/Debates/025/han025-E.PDF (date accessed 23 December 2020). As Abella J observed in AB v.

Bragg Communications Inc , 2012 SCC 46 , cyberbullying is psychologically toxic and “can be particularly harmful because the content can be spread widely, quickly – and anonymously” (at para 22; see also para20; and R v NG et al , 2015 MBCA 81 at paras 33-35 ). Distribution of an intimate image without consent is a sexual offence as well as a privacy offence punishable by a maximum term of imprisonment for five years upon indictable proceedings. Deterrence and denunciation are the primary sentencing objectives. 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 at para 24 ; and Johnson at para 13).” [ 11 ] In the R. v. S.C.C. case, the accused had been sentenced to 14 months incarceration for distribution of an intimate image without consent. The Court of Appeal listed 11 aggravating factors, and increased the sentence to one of two years less one day incarceration.

Some of the aggravating factors included his past record, being out on bail for domestic violence charges at the time of this offence – including to have no contact with the victim, and the risk assessment of being a high risk to reoffend.

Of note, though, are the aggravating factors the court lists which are similar to the facts in our case: this was an offence which involved domestic violence and an abuse of trust, the images were posted online out of spite, the victim was clearly identified in the images and the images were only removed after the accused got caught. [ 12 ] While these two Court of Appeal decisions imposed actual time in custody, there have been some cases that have considered, and granted a Conditional Sentence Order for the distribution of an intimate image without consent. In R. v.

Soroka , an oral decision given on November 26, 2018, Judge Huberdeau, of this court, granted a 60 day Conditional Sentence Order followed by 18 months of probation. While this decision notes that denunciation and deterrence are to be primary sentencing principles with this offence, there is no specific mention of Mainella, J.’s assessment on the focus on denunciation and deterrence, in the McFarlane case which had just been released earlier in the year.

And, of course, this case predates S.C.C. by more than two years. [ 13 ] As well, Conditional Sentence Orders were granted in two other cases filed by defence counsel: R. v. J. B. , [2018] O.J. No. 4133 , 2018 ONSC 4726 , an Ontario Superior Court of Justice decision released in August, 2018, where a 16 month C.S.O. was granted, and R. v. J.E.C., [2021] A.J. No. 191 , 2021 ABPC 58 , a 2021 Alberta Provincial Court decision where a 4 month C.S.O. was granted. AGGRAVATING FACTORS [ 14 ] The aggravating factors in this case: 1. SA’s actions in this case were a deliberate act of revenge.

Immediately after finding out about the victim’s prior relationship, he set out on a course of phoning and texting her. Those texts included messages about killing the other male she had been involved with, suggesting that he didn’t care if she called the police as he had his shooters, and promising to expose her nude photos everywhere. He then proceeded to post those nude photos, exactly as he said he would. 2. The photos were posted to his Twitter account, which had over 400 followers at the time. There is no way of knowing how many people saw the photos, saved them or shared them with anyone else. 3.

SA sent the victim a separate tweet which included the photos together with the following message, “Always said I would expose some if I got fucked over.” 4. The photos included shots where her face was clearly visible, where her breasts are exposed and where she is in her underwear. There was no attempt to blur or obscure her face. 5. It was only when the police came to arrest him the following morning that he asked to delete the photos, which the officers allowed him to do. 6.

However, after his arrest, SA was released from police custody and one of the very first things he did was to text the victim, in breach of his release order, asking, “Can you drop the charges?” 7. As the parties had been in a relationship, this is an offence involving domestic violence and an abuse of trust. 8. No Victim Impact Statement was submitted, and so how significant an impact this has had on her is unknown. However, as the UBC Law review

article noted, the harm to a victim can be both perpetual and personal. MITIGATING FACTORS [ 15 ] Mitigating factors in this case: 1. SA is a young adult with no previous criminal record. 2. SA was immediately remorseful – even asking the police if he could delete the photos as he was being arrested. 3. SA admitted to the offences. He entered guilty pleas early on; no trial was ever set.

4. The pre-sentence report is generally positive; he was assessed as a low risk to reoffend. 5. SA has been on judicial interim release since his release on the original charge and the subsequent breach charge. There is no suggestion that he has breached any of those conditions in the past 14 months. 6. SA has been gainfully employed as a chef for the past six months. 7. SA has a stable home situation, living with his sister and her husband. She is a positive support for him. 8. SA had a difficult childhood. He is of Metis descent and experienced racism early in his life.

He and his sister grew up witnessing domestic violence. He was physically abused. Their mother had mental health issues and attempted suicide. All of this led up to SA dropping out of school and not finishing grade 12. APPLICATION OF THE LAW TO THESE FACTORS [ 16 ] The Manitoba Court of Appeal has clearly set out in the McFarlane and S.C.C. cases that the focus on denunciation and deterrence in an offence such as this will normally result in a custodial sentence. This is not to say that a Conditional Sentence Order can never be a satisfactory custody sentence that emphasizes denunciation and deterrence.

The cases of Soroka, J.E.C. and J.B ., previously referred to, all explain why they believe that need for denunciation and deterrence is satisfied in the Condition Sentence Order they imposed.

SA’s pre-sentence report makes it clear that he is a suitable candidate for such an order – and that he will likely succeed in following any conditions imposed in such an order; the prospect of rehabilitation is strong. [ 17 ] In determining whether a Conditional Sentence Order in this case can satisfy the objectives and principles of sentencing as set out in the Code, consideration must be given to proportionality: the gravity of the offence and the degree of responsibility of the offender. SA had promised KD retribution if she was ever involved in another relationship.

When he found out - to his way of thinking - that she had been unfaithful to him, he immediately proceeded to inflict as much harm on her as he could. This was not simply sending photos and a message to her - and a sister – as in the McFarlane case. His tweet was sent to hundreds of people he knew and had ready access via his Twitter account – people who likely knew of the relationship between him and the victim.

Whether or not SA had been consuming alcohol during this time, between the initial phone conversation, the subsequent phone calls, text messages, the loading of and sending the photos via his Twitter account, he committed a number of actions that showed planning and deliberation. His level of intoxication, therefore, is not a mitigating factor of any significance in this case. [ 18 ] As the Court of Appeal has stated, the need for denunciation and deterrence in these kinds of case will normally result in a custodial sentence.

SA’s swift and perverse course of action in wanting to inflict harm on his ex-girlfriend requires a clear message of denunciation, one that a Conditional Sentence Order can not satisfy. Therefore a true custodial sentence will be imposed. The Court of Appeal in McFarlane commented that a six month sentence in that case was on the low end of the range. SA’s actions call for a sentence of more than that and the Crown’s submission of one year in custody is certainly in line with that.

However, in taking note of all of the mitigating factors in this case, as previously outlined, a sentence of nine months in custody on the non-consensual distribution of intimate images will be imposed. [ 19 ] SA breached his release conditions as soon as he was out of police custody, by asking KD to drop the charges. The timing of this in the context of the prior domestic relationship and what he had just done to her by posting the photos online, some additional custody time to the nine month sentence is called for.

As he has no previous record for breaching court orders, a sentence of 15 days consecutive will be imposed. [ 20 ] A two year order of supervised probation will follow SA’s time in custody. In addition to the normal statutory conditions: 1. He is to report to a Probation Officer within 48 hours of his release, and thereafter as required; 2. He is to take counselling and programming as directed by his probation officer; 3. He is to have no contact or communication directly or indirectly with KD and NZ; 4. He is not to attend within one city block of their home, place of work, school or place of worship; 5.

He must not publish, distribute, post or make publicly available any images or videos which depict or refer to KD; 6. He must not access or use any social media websites or Apps., including – but not limited to – Twitter, Snapchat and Instagram. [ 21 ] Other Orders:

1. Pursuant to

section 162.2, SA is to not use the Internet or any other digital network to make any comments about or to distribute, publish, post or make publicly available any images or videos depicting or referring to KD, for a period of 10 years. 2. Given that this is a custody sentence, costs and surcharges will be waived. _______________________ HEINRICHS P.J.