R v SA, 2023 ABCJ 111

In the Alberta Court of Justice Citation: R v SA, 2023 ABCJ 111 Date: 20230503 Docket: 220944086P1 Registry: Fort McMurray Between: His Majesty the King Crown - and - SA Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify THE VICTIM must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Sentencing Judgment of the Honourable Justice J.J. Stuffco Background [ 1 ] On April 12, 2023 the Offender pled guilty to the following charges: • Publication of an intimate image without consent, contrary to

section 162.1(1) of the Criminal Code of Canada ; and • Voyeurism, surreptitiously recording, without consent, a person being engaged in a sexual act, contrary to section 162(1) (

a) of the Criminal Code of Canada . [ 2 ] At the sentencing hearing the following documents were entered as exhibits: • An Agreed Statement of Facts (“ASF”); and

• A detailed Pre-Sentence Report (“PSR”). [ 3 ] The parties also filed a joint book of sentencing decisions which I shall review later in this decision. Facts A. The Offence [ 4 ] During the early Spring of 2021, the Offender and Victim met through an online dating website and shortly thereafter commenced a casual sexual relationship. As part of their intimate encounters, the Offender set up a “gloryhole” in his camper-trailer.

For reference, a “gloryhole” is a hole made in a thin wall or other type of partition where a man can insert his penis for sexual gratification by another person who cannot be seen on the other side of the partition. The Victim expressed an interest in using the gloryhole with the Offender. Unbeknownst to the Victim, the Offender set up cameras to record the Offender fellating the Victim. The Offender made a ten (10) minute video which captured the Victim nude, showing not only his genitals but his buttocks and face.

The Offender then uploaded the video onto his Just for Fans page, called “GLORYHOLECANADA.” A link to the video, along with a screengrab depicting the Victim’s body was also posted on the Offender’s Twitter feed. At no time was the Victim aware of the recording nor that it had been published online. [ 5 ] A few months later, the Victim learned about the illicit video through a total stranger whom he was communicating with on a dating site. Horrified, the Victim discovered the intimate video clearly showed his face.

The Victim asked the Offender to take down the explicit video but the Offender initially refused, telling the Victim to “not be a baby.” The Offender never did take the video down and the Victim was required to take significant steps to eventually have the video removed. It took approximately two months to convince the pornographic website hosts to remove the intimate video. Although the Victim was unable to ascertain how many times the illicit video had been viewed prior to its removal from the internet, it was undisputed the Offender published the video on a high- traffic website.

It was also undisputed the Offender profited financially by publishing the illicit video. [ 6 ] The Victim attended the sentencing hearing to describe the shame and humiliation experienced by this incident. Given the public exhibition of the video which clearly identified the Victim, he had to disclose the video to not only his boss, but also his family. The Victim’s mother cried and was upset. The Victim described feelings of ongoing shame, humiliation, and struggling to trust any further intimate encounters out of fear that a similar fate could result. B.

The Offender [ 7 ] The Offender is forty-four (44) years old. He has no criminal history. He originally hails from Peru but immigrated to Canada in 2009 or 2010. He is a Canadian citizen. He has encountered trauma throughout his life, which began in his childhood whereby he witnessed family violence and encountered sexual experiences as a preteen with the son of a close, family friend. When the Offender’s biological father passed away, the Offender became depressed and attempted suicide. The Offender has struggled with depression and emotional regulation throughout his life.

The Offender also encountered trauma when his life partner was diagnosed with bladder cancer and ultimately passed away in 2016. [ 8 ] The Offender has remained gainfully employed, primarily in road construction, and sends financial support to his mother residing in Peru. The Offender has a residence in Milden, Saskatchewan but often travels for work on an itinerate basis through various parts of Saskatchewan and Alberta. In the PSR, it appeared the Offender had limited friendships and remained “lonely” given his inability to recover from his life-partner’s death in 2016.

The Offender eventually sought assistance for his depression and was prescribed anti-depressants while also referred to a psychologist. [ 9 ] During the sentencing hearing, I was advised by defence counsel that the Offender attended counselling. However, the psychologist was unable to provide a positive report. A “Primary Risk Assessment” was completed as part of a very detailed and well documented PSR. The Offender’s overall risk of recidivism was assessed within the “low” category.

The assessor determined the Offender was in the “pre-contemplative” phase in addressing his lack of pro-social support and “action stage” for addressing self- management. [ 10 ] In regards to the “Risk Assessment” cited within the PSR, the final analysis noted the Offender was highly motivated to address his past trauma, however, was not readily taking responsibility for the negative impact his behaviour has on himself or others. [ 11 ] As part of the sentencing hearing, the Offender addressed the Court at great length.

The Offender’s inability to appreciate the impact his actions had on the Victim were very apparent and unfortunately dovetailed the specific concerns highlighted at the conclusion of PSR. As part of the PSR, Static-99R and Stable-2007 Assessments were completed to determine the risk for sexual offence recidivism and to identify risk factors requiring attention to minimize re-offending.

The combined assessments noted the Offender to be at low risk to reoffend but within the moderate range to address “criminogenic needs.” In layman terms, the Offender presents as a low risk to re- offend, but requires moderate levels of intervention because of his emotional instability. The assessor’s final comments were as follows (at page 10 of the PSR):

[The Offender] is highly motivated to address the past trauma in his life, his depression and suicidal ideation. [The Offender] may be using risky sexual interactions to cope with his past trauma and the loss of his spouse, but he is not readily taking responsibility for the negative impact this behaviour has on himself or others. [ 12 ] The fundamental concern most apparent during the sentencing hearing was the Offender’s reluctance to take responsibility for his actions, especially in relation to how this offence has affected the Victim.

For example, during the sentencing hearing, the Offender wished to immediately address the court after the Victim completed reading his Victim Impact Statement. It was very much apparent the Offender wished to minimize and contradict the Victim Impact Statement. The Offender even stated the Victim was lucky other intimate encounters were not recorded and that he was spared from the requirement to testify at trial. The Offender attempted to minimize the nature of the offences by saying such was not as serious as being involved in trafficking illegal narcotics or being in a street gang.

The Offender went at length describing his good deeds keeping a regular job and for sending financial support back to his family in his native country of Peru. In fact, the Offender referenced his need to pay bills as part of the motivation for gaining financially from posting the video online. C. Position of the Parties [ 13 ] The Crown submitted a fair and proportionate sentence should be 12 months gaol, plus 12 months probation. No SOIRA was requested.

The Defence argued a 12 month Conditional Sentence Order (CSO) plus 12 months probation would be more appropriate given the Offender’s lack of any criminal antecedents and guilty plea. [ 14 ] Crown and Defence submitted a joint book of authorities to the Court at the sentencing hearing consisting of the following reported decisions: • R v Germain , 2022 ABCA 257 [ Germain ]; • R v McFarlane , 2018 MBCA 48 [ McFarlane ]; • R v SA, 2022 MBPC 28 [ SA ]; • R v SCC, 2021 MBCA 1 [ SCC ]; • R v JB, 2018 ONSC 4726 [ JBI ]; • R v JEC, 2021 ABPC 58 [ JEC ]; • R c Lionel, 2022 QCCQ 6450 [ Lionel ]. [ 15 ] The Court has also considered the following cases: • R v JS, 2019 ABPC 134 ; • R v Haines-Matthews, 2018 ABPC 264 [ Haines-Matthews ]; • R v.

AC, 2017 ONCJ 317 [ AC ]; • T v. TD, 2018 ABPC 232 [ TD ]; • R v Ha, 2023 ONCJ 75 [ Ha ]; • R v JAH, 2021 SKQB 9 [ JAH ]. [ 16 ] Upon reflection, the portfolio of sentencing precedent in this field is quickly growing given the synchronous prevalence of this type of offence being reported throughout Canada. Despite the wide array of sentencing ranges imposed on various offenders, it is obvious our courts are now realizing the severity of the enduring deleterious consequences this type of crime places upon victims. Analysis A. The Law

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i) The Offences of Voyeurism and Distribution of Intimate Image [ 17 ] The first task is to consider the specific offences at play. In regards to the offence of Voyeurism, our Supreme Court in R v. Jarvis, 2019 SCC 10 , noted section 162(1) of the Criminal Code was enacted to protect individuals from not only intrusive breaches of privacy, but also sexual exploitation and violation of a victim’s sexual integrity: see Jarvis at para 51 .

Surreptitious, non-consensual recording of a sexual encounter is a substantial attack on a victim’s right to privacy and their sexual integrity. [ 18 ] When a surreptitiously recorded sexual encounter is then distributed online, the harm to victims manifestly multiplies. In SA , the Judge Heinrichs succinctly cited a 2021 UBC Law Review

article identifying the harms inflicted upon victims of Non-Consensual Disclosure of Intimate Images (“NCDII”) at para 7: 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 NCDII range from humiliation, public shaming, and loss of confidence to unemployment, depression, forced identity changes and potentially suicide [emphasis added]. [ 19 ] The Alberta Court of Appeal in Germain reinforced this principal of acknowledging harms perpetrated upon victims of this type of crime by stating at para 15: While breaches of privacy may not cause bodily harm to a victim, the psychological effects are real. The harm typically caused by this offence should not be underestimated.

Emotional and psychological harm can be as devastating as physical harm: R v Friesen, 2020 SCC 9 at paras 56 , 142. [ 20 ] In furtherance of these principles, it becomes clear that as the circle of distribution of such exploitive images widens, so does the deleterious impact upon the victim.

This is not to discount the fact despite the breadth of dissemination, victims always bear a serious consequence. [ 21 ] In JAH , Justice Zerr, after reviewing a plethora of sentencing decisions, aptly articulated at para 21: Within these precedents, the extent to which an image has been shared is clearly a factor to consider.

Where dissemination has been wide and uncontrolled, a period of incarceration almost always results, even where the offender has no previous criminal record. [ 22 ] Due to the offences of Voyeurism and Distribution of an Intimate Image being not only sexual related offences, but also intrusive breaches of a victim’s privacy, denunciation and deterrence remain paramount and will normally result in custodial sentences: see SA and SCC . (ii) Assessing Moral Blameworthiness within Context of Distribution of Intimate Image Offences [ 23 ] An essential task of the sentencing process involves the Court assessing an offender’s level of moral blameworthiness.

An offender’s intentional and deliberate conduct require proportionate responses from society and thus our Courts. [ 24 ] In order to maintain parity of punishments within a highly individualized sentencing process, Courts look to some set of relevant criteria that can assist with gauging an offender’s moral blameworthiness. The Court in Lionel delineated a list of such criteria for this specific offence, at para 35, and I adopt these considerations: • The nature of the images shared, posted or published (for example, the level of intimacy depicted and how explicit);

• The number of intimate images posted, how many times the material was posted, and over what period of time; • The quality of the intimate images and to what extent the victim is recognizable; • The scope of the potential audience who had, or could have had, access to the images; • The relationship between the audience who had access to the images and the victim; • Have the images been deleted? When? In what context?

Who had been in possession of the intimate images (past and present)? • Are the images still out there on the internet or on any social media platform? [ 25 ] By no means is the above an exhaustive list but it serves as a reasonable reference point for assessing the offender’s conduct and its affects on victims. A similar set of criteria was used by the Honourable Justice JB Hawkes in JEC (see para 22 ).

Decision [ 26 ] I find the following to be aggravating factors: • The Victim’s face was clearly visible and thus identifiable to all parties able to view the video; • The Offender received financial compensation for the illicit video; • The Offender refused to remove the video despite the Victim’s desperate requests; • The video was left online for two (2) months allowing it to be widely circulated and left for public consumption on a high-traffic website; • Significant impact on the Victim as he was forced to disclose the video to his employer and his family members; • The lack of bona fide remorse exhibit by the Offender not only within the PSR, but also in his statement to the Court at the time of sentencing. [ 27 ] I find the following to be mitigating factors: • Despite the Offender’s clear struggle to accept responsibility for his actions and the harms his actions placed upon the Victim, the Offender pled guilty without conducting a trial; • The Offender cooperated with community corrections to complete a PSR; • The Offender has no criminal record; • The Offender has struggled with depression. [ 28 ] When reviewing the cases provided by Crown and Defence, many factual distinctions vis-à-vis the case at bar were readily apparent.

For example: • Germain : The offender received a 15 month CSO but there was no underlying facts relating to distribution of an intimate image. This was a sentence on Voyeurism alone. None of the images were published. • McFarlane : The offender received an 18 month goal sentence. This case primarily focuses on “sextortion” or extorting a victim with threats of publishing their intimate image(s). There was a void of commentary in regards to the distribution of an intimate image.

However, the Court did state at para 24 that distribution of such images usually results in a custodial sentence. • SCC : The offender received two (2) years less a day gaol. The victim was a youth. The offender had a long criminal record. The offender was in breach of a no contact order when he committed these offences against a victim of tender age. However, similar to the

case at bar, two highly aggravating factors included the video clearly depicting the victim’s face and was only taken down upon the offender being caught. • JB : The offender received a 16 month CSO followed by three (3) years of probation for posting five (5) intimate images of the victim on a fake Facebook profile which he created. However, the offender removed the images within hours of the Victim discovering such. No videos were involved. • JEC : The offender received a 4 month CSO. The Crown sought a 4 month CSO while the offender sought a conditional discharge.

The facts involved the offender posting images, all of which were photos, on website called “Fetlife.com.” In regards to the images posted, the victim’s face was obscured so she could not be identified. Furthermore, the offender displayed significant remorse, wrote a letter of apology, underwent successful counselling, and donated $1000 to the Alberta Sexual Assault Service of Canada.

The Court confirmed the offender displayed significant insight into his offending behaviour. • SA : The offender received a sentence of 9 months gaol, plus two years of probation, for posting nude photos of his ex-girlfriend on Twitter. The images were quickly removed. The offender was of Indigenous heritage and youthful in his early 20s. The offender struggled with mental health as he suffered abuse as a child. This case involved “revenge porn” which was highly aggravating. • Lionel : The offender received a conditional discharge. However, the offender was just 19 years old with no criminal history.

Importantly, the victim was unrecognizable and posted to small, private group on Snapchat. The offender immediately removed the images and deleted them off his device. The offender showed substantial remorse and empathy towards the victim. As part of the conditional discharge, the offender was required to complete three (3) years of probation and 200 hours of community service. [ 29 ] Given that sentencing is a highly individualized process, those case precedents with a more factual nexus to the case at bar take predominance in the assessment process.

Those cases are as follows: • AC : The offender posted five (5) videos of him having intercourse with the victim on a porn site. The victim’s face was visible and thus she could be identified in the videos. The offender had no criminal record and pled guilty. There was some remorse. However, the impact on the victim was substantial. The offender received a 5 month gaol sentence. • Haines-Matthews : The offender was youthful being only 18 years old. However, he video recorded sex acts with a victim, aged 17 years old.

The Offender posted the video on Facebook as well as sending the video directly to a friend of the victim. The offender, despite being youthful, received a five (5) month gaol sentence plus 12 months of probation. • TD : The offender was angry at the victim for breaking up with him. In response, the Offender posted intimate pictures of the victim on a public porn site. The Offender pled guilty and had no criminal record. He received a 3 month gaol sentence. • Ha : The offender posted videos of sexual intercourse with the victim onto a porn site. Some of those videos were consensually recorded between the parties.

The victim did not consent to the distribution of such videos. The offender was 30 years old and did not have any criminal record. The offender received a five month gaol sentence. The court rejected the offender’s request for a conditional sentence as it did not satisfy the need for denunciation and deterrence, nor adequately address the moral blameworthiness of the offence. [ 30 ] In the case at bar, the Offender’s moral blameworthiness is quite high given he gained the Victim’s trust by having a prior sexual encounter with him, then once gaining his trust, secretly recorded a subsequent sexual encounter.

The Victim’s face was captured in the video and published online. The Offender did not take any steps to obscure the Victim’s face or identity when publishing the video online. To make matters worse, the Offender refused to remove the illicit videos despite the Victim requesting that he do so on numerous occasions. The video was published on a high-traffic webpage for profit which we can reasonably infer allowed this video to be circulated widely.

The Offender’s conduct was intentional at many stages and his moral blameworthiness quite high, especially since he refused to remove the videos despite being put on notice of the humiliation experienced by the Victim at the time.

[ 31 ] I concur with Justice Caponecchia’s findings in Ha in that a conditional sentence does not adequately satisfy the fundamental principles of sentencing for this type of offence. The intentional, deliberate actions of the Offender represent conduct which can only properly be sanctioned through the use of incarceration. [ 32 ] I also find that a term of incarceration is required when reviewing the most factually comparable case precedents and applying the principle of sentence parity as outlined in

section 718.2 (

b) of the Criminal Code . [ 33 ] Therefore after considering the aggravating and mitigating factors specific to this Offender, the statutory provisions of

section 718 of the Criminal Code , the case precedents, while also applying the principle of restraint, I find that a just and proportionate sentence is as follows: • In regards to the offence of Distribution of Intimate Image contrary to section 162(1) (

a) Criminal Code , a gaol sentence of 4 months; AND • In regards to the offence of Voyeurism contrary to section 162(1) (

a) of the Criminal Code , a suspended sentence of 12 months probation, with the following terms and conditions: 1. Report to probation within 2 working days of release and thereafter as required; 2. To attend such assessment, treatment, and counselling as directed by his probation officer and to sign any waiver or forms required to ensure his compliance; 3. Not to have contact, direct or indirect, with the Victim and to leave any public place forthwith should he encounter the Victim; 4. Not to possess, publish, post or make publicly available any images or videos depicting or referring to the Victim; 5.

To delete and remove all videos and images of the Victim from any and all of his devices, including but not limited to, his cell phone(s), computer(s), laptop(s), tablet(s), etc. 6. Not to post, publish, distribute, or share any sexual content online or on any social media platform for the duration of this probationary term. [ 34 ] Last, there will be an order pursuant to

section 162.2 that the Offender shall 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 the Victim for a period of ten (10) years. Heard on the 12 th day of April, 2023. Dated at the City of Fort McMurray, Alberta this 29 th day of May, 2023. J.J. Stuffco A Justice of the Alberta Court of Justice Appearances:

Morgen Patterson for the Crown Craig Savoie for the Accused