2019 MBPC 26, 2019 MBPC 26

Citation No. 2019 MBPC 26 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) B. Sharpe, ) for the Crown - and - ) ) B.S. ) J. Weinstein, ) ) for the Accused ) ) Sentencing Decision delivered: May 13, 2019 M.P. Thompson, P.J. Introduction [ 1 ] What sentence is appropriate when intimate images are weaponized against a woman who ends a dating relationship? [ 2 ] B.S. a thirty-four-year-old man, has pled guilty to one count of distributing intimate images contrary to s. 162.1(1) as well as one count of criminal harassment contrary to s. 264(1) of the Criminal Code . Sentencing Positions [ 3 ] The Crown elected

summary proceedings resulting in a maximum penalty of six months jail on each offence. There is no minimum penalty. [ 4 ] Crown and defence counsel filed casebooks containing relevant sentencing precedents and materials. Both counsel made lengthy oral submissions to the Court on January 16, 2019. [ 5 ] The Crown seeks six months jail on the charge of transmitting intimate images without consent and a consecutive sentence of three to six months jail on the charge of criminal harassment. The Crown argues the principles of denunciation and deterrence are paramount. Jail, they submit, needs to be followed by probation with protective and rehabilitative conditions.

[6] Defence counsel argues that a maximum sentence on each offence for a first offender is not appropriate. Defence arguesmitigating factors in this case include the context of B.S.’s substance abuse, health and mental health issues in committing the offencesas well as his efforts at personal rehabilitation prior to sentencing. [7] B.S. has spent twenty-six days in pretrial custody. At enhanced credit of 1.5 per day for good behaviour in jail, he is entitledto credit of thirty-nine days. [8] Defence asks that a community-based sentence be imposed by way of a suspended sentence.

In the alternative, if more jailtime is required, Defence seeks a conditional sentence order or an intermittent sentence if ninety days or less is imposed. Purpose of

Section 162.1(1) (Distribute Intimate Image) [9] Judge Gorman of the Newfoundland Provincial in R. v. Greene, 2018 CarswellNfld 101, wrote this about the offence ofdistributing intimate images: It provides men who are unable to accept the end of a relationship with a new and frightening manner of harming and humiliating theirformer female partners. [10] Judge Sudeyko of the B.C. Provincial Court set out the relevant sentencing principles in the case of R. v.

P.S.D., 2016 BCPC400 : Objectives of Denunciation, Deterrence and Recognition of Harm to Victims [9] Turning firstly to the transmission of intimate images, there has been significant harm caused as a result of the type ofbehavior that gives rise to this offence. That is, to transmit intimate images of someone contrary to their consent, so as to have thoseimages available to others, and perhaps to anyone who can access them, has resulted in significant emotional trauma to victims. That isparticularly the case where the victim is a young person and a female.

Where such conduct includes cyber-bullying, in which the victimis further tormented by the receivers or recipients of those images, the result has even been tragic, with young women seemingly takingtheir own lives as a result. [10] It is in that context that Parliament recently introduced s. 162.1(1) of the Criminal Code, and it is also in that context that I findthat the objectives of denunciation and general deterrence are paramount, as are the need for acceptance of responsibility andacknowledgement of harm done to victims and the community. [11] The Supreme Court, in the case of R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500 at paragraph 81, reminds usof the objective of denunciation: Denunciation is the communication of society’s condemnation of the offender’s conduct. A sentence with a denunciatory elementrepresents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code ofvalues as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App.

R. 74, at p.77: “society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can showthis is by the sentences they pass”.

Facts [12] At the core of any decision on sentencing is the nature of the offences as well as the offender’s degree of responsibility, ormoral culpability, in committing those offences. [13] These are the facts: [14] Like many abusive intimate relationships, B.S.’s criminal behaviour was driven by his need for control and power. [15] The Victim (V), a much younger woman had been dating B.S. for several months when she accompanied him on a vacation to aforeign country. During their vacation, the accused embarked on an alcohol and cocaine fuelled binge and kicked V out of their sharedroom. [16] V called her father.

Her father then called B.S. from Canada. B.S. told him that she was to blame and insulted her. V’s fatherpaid for another room for her.

V decided to end the relationship. [17] When they returned to Winnipeg, B.S. convinced V to give him another chance: promising he would apologize to her fatherand repay her costs of the trip. [18] V’s father was not yet aware they had reconciled. [19] A few days later, B.S. became jealous when a photo of V at a friend’s house was posted on social media. [20] V was not at home when B.S. entered their home uninvited, intoxicated at 5 am awakening her father. [21] The next day, after V’s father told her what had happened, V ended the relationship permanently.

She texted B.S. several timesthat day clearly telling him to leave her and her family alone. [22] In the two days before May 26, 2017, B.S. called and texted her over 80 times.

[ 23 ] V’s father was leaving town and was concerned for V’s safety. He contacted the police to start a record of events. V met with police the next day. [ 24 ] Police then contacted B.S. and told him to leave V alone. [ 25 ] Matters escalated. [ 26 ] After speaking to police, V blocked B.S.’s phone number. He started communicating by email and social media. [ 27 ] In the week commencing May 27, 2017, she endured constant harassment causing her to fear for her safety.

B.S. called V over sixty times, emailed her, Facebook messaged her and Instagram messaged her. [ 28 ] V called police and on their advice obtained a no contact order. [ 29 ] B.S. did not stop. [ 30 ] Between May 28 and May 31 st , B.S. sent intimate images of V to her father.

They included a nude image of V, and two images of her performing sexual acts, including an image of V performing fellatio on B.S. [ 31 ] B.S. took screen shots of the texts and photos he sent her father and sent those to V, showing her what he had done. [ 32 ] On June 4 at 12:40 pm, he attended outside her door. [ 33 ] Police arrested him on June 5 th for criminal harassment and distributing intimate images without consent. He admitted the offences to police.

He was released on June 6 on conditions not to contact V in any way and not to use the internet except in the course of employment. [ 34 ] He continued contacting V from his email account and via Facebook phone calls. He made nearly two-hundred phone calls and text messages combined. This continued until his second arrest on June 22. [ 35 ] After his re-arrest on June 22, he was released on June 28. [ 36 ] He initiated contact again on July 25th.

On July 26th, he was re-arrested a third time and held in custody until his release on bail on August 11, 2017 to attend a private, residential addictions treatment and counselling program. [ 37 ] The accused has had no contact with V since July 25 th , 2017. [ 38 ] The Crown stated that B.S. made no overt “legal threats” to V, although clearly she felt threatened by him, due to his criminally harassing and erratic behaviour.

Victim Impact [ 39 ] V wrote a victim impact statement the Crown filed with the Court. [ 40 ] Because of B.S.’s persistent and enduring harassment, V’s summer was one filled with anxiety and stress. Her phone seemed to ring non-stop. She was alone and felt unsafe. She worried that B.S. would show up unexpectedly at her workplace and cause a scene. The personal and intimate pictures he sent to father, sickened her leaving her unable to sleep or eat properly for weeks. Her relationship with her father was deeply strained by B.S.’s invasion of privacy and breach of trust.

It affected her work due to constant worry and anxiety. She fell into a deep depressive mode. This has negatively affected her self-esteem and her ability to trust others, particularly in a dating relationship. The Offender [ 41 ] B.S. was admitted on bail to an inpatient addiction and mental health-counselling program on August 8, 2017. He spent fifty- seven days in treatment. A consulting psychiatrist diagnosed him as suffering from ADHD as well as a Major Depressive disorder. A number of other non-clinical symptoms were assessed. He was prescribed medication. His discharge

summary noted a significant change in his attitude and mood, noting he was no longer easily angered and had developed self-awareness and coping skills to deal with daily stresses. He has been an active participant in their continuing care program.

His recovery was described in very positive terms. [ 42 ] Following residential treatment, his bail conditions were varied to allow him to reside at home. [ 43 ] A private Forensic Assessment was prepared a registered Psychologist dated November 19 th , 2018 and filed with the Court. [ 44 ] The report indicated he has addressed his chronic sleep imbalance, has been sober for eighteen months and has learned how to respect women.

He is now in in a new intimate relationship with a long-term acquaintance and has insight into his health and behaviour. [ 45 ] His risk assessment for spousal assault was determined to be in the low risk category compared to a representative sample of prison inmates and offenders on probation. He was rated as a low risk for future violence and his LS/CMI index risk is low. The assessor notes, if he remains sober, his risk for violence is greatly reduced.

[ 46 ] The assessment notes he has strong community supports, is employable and is oriented towards personal growth, making the prognosis for eventual management of his risk in the community very good. [ 47 ] In short, he has put in a significant amount of work on self-improvement in the eighteen months since his brief incarceration.

Purpose and Principles of Sentencing [ 48 ] The Court must consider the sentencing principles set out in the Criminal Code : 718 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 by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 49 ] Other relevant principles of sentencing are set out in s. 718.2 of the Code . Essentially, these principles are: (

a) that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (

b) that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. Proportionality [ 50 ]

Section 718.1 of the Criminal Code sets out that a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender. [ 51 ] As referenced earlier in this decision, these are serious offences. The emotional trauma this offender caused to V was significant and lasting. Analysis of Moral Culpability [ 52 ] In the sentencing precedents for distribution of intimate images, Defence counsel pointed to certain themes in assessing moral culpability; Was the image obtained by consent or not? Was the act of distribution premeditated or rash and impulsive?

How wide was the distribution of the image: via the internet or to a wide group of people? [ 53 ] In this case, there is no suggestion the images were obtained without consent. The aggravating factor that would be present if they had been taken without consent is lacking. [ 54 ] Defence counsel explained the act of distribution as the irrational effort of a drug-crazed boyfriend trying to prove to V’s father that they had reconciled after their vacation and were still a couple.

He points to the “phone dump”: B.S.’s digital phone records that show he was up at all hours from 1 am to 6 am to suggest that he was on cocaine and not thinking logically about this. B.S. was found highly intoxicated at his home at the time of his final arrest. [ 55 ] While I have no doubt his cocaine and alcohol addictions were a contributing factor to his behaviour, I find that that B.S. sent intimate images to V’s father as targeted retaliation for his involvement in trying to protect his daughter from an emotionally abusive relationship.

B.S. sent them after the police had spoken to him and warned him not to have any further contact with V. [ 56 ] B.S’s explanation, that he was trying to prove that their relationship had continued, could not have been proven by images that were not date stamped. Rather, I find that B.S. sent them out of frustration that he could no longer control the relationship with V, once her father had intervened and involved the police.

I am satisfied he sent the images to inflict pain as payback to both V and her father. [ 57 ] The fact that B.S. distributed the images to two people, V and her father, and not to a wider public audience through the internet, is the absence of an aggravating factor. [ 58 ] B.S’s criminal harassment of V did not involve overt threats, yet it persisted despite clear directives to stop from V, the Courts and police on multiple occasions. After B.S.’s 5:00 a.m. unannounced and inebriated visit to her home, V sent text messages breaking

off the relationship. There was no ambiguity.

She directly communicated to him to cease any further contact. [59] While B.S. was not convicted of any charge related to breaching his bail conditions or the no-contact order obtained againsthim by V, those facts were the context of the criminal harassment offence. [60] Mitigating factors include: • The accused’s guilty plea; • The accused does not have a prior criminal record; and • The fact he has taken extensive programing and counselling to deal with his substance abuse and mental health issues prior tosentencing: [61] Aggravating factors in this case include: • My finding that B.S. sent intimate images to V’s father as targeted retaliation for his involvement in trying to protect his daughterfrom an emotionally abusive relationship. • B.S. sent the intimate images to V’s father and to V after police had contacted and warned B.S. to stop contact with V and not toattend her residence. • B.S. was arrested and released two times, yet repeatedly violated multiple conditions of his release designed to protect V.

He persisted in trying to contact V until his third and final arrest on July 26th, 2017. Sentencing precedents [62] The Crown provided three cases to the Court as sentencing precedents: [63] R v. McFarlane, 2018 MBCA 48 The accused was 26-years-old with no criminal record. He pled guilty to voyeurism,extortion and distribution of an intimate image without consent and extortion. He surreptitiously videotaped a 17-year-old undressingand showering.

He sent images to the victim and her sister when he attempted to extort sexually explicit material or activity from thevictim by threating to disseminate intimate images of her. He did not otherwise publish the images. The accused was assessed as a verylow risk for any future offending, but the Pre-Sentence Report was more negative and assessed him as a moderate-high risk based on aSTATIC-99R profile for sexual offences.

He was sentenced to twelve months imprisonment for extortion, six months concurrent fordistribution of an intimate image and six months consecutive for voyeurism, for a total sentence of eighteen months.

The ManitobaCourt of Appeal upheld the combined sentence but re-allocated three months for voyeurism, fifteen months consecutive for extortion andsix months concurrent for distribution of an intimate image. [64] These were indictable proceedings, in contrast to the Crown’s decision to proceed summarily in the case at bar. [65] At paragraph 24 in McFarlane, the Court of Appeal said this: The judge said little as to how he arrived at the six-month sentence for the offence of distribution of an intimate image without consent.

It is a sexual offence and a privacy offence, and sentences for it must reflect both of these aims of the legislation. Deterrence anddenunciation are the primary sentencing objectives and such conduct typically will result in a custodial sentence (see R v AC, 2017ONCJ 317 at paras 17-20, 28, 56; and R v JS, 2018 ONCJ 82 at para 20-29). Because this offence was committed aspart of the sextortion and the six-month sentence was made concurrent to the extortion sentence, we saw no reason to adjust it otherthan to point out it was at the low end of the range. [66] R v.

Greene, 2018 CarswellNlfld 101 The accused was a 25-year-old who had a minor, unrelated criminal record. He hadbeen in a two-year relationship and shared a child with the victim at the time she broke up with him. He threated to kill her twice andsent her friend intimate video of the victim engaging in sexual intercourse with another man. He also pled guilty to two counts ofuttering threats to kill the complainant, assault peace officer and breach of recognizance by drinking. The Crown proceeded summarily.

On all charges, he was sentenced to a total of eight months jail and three years of supervised probation, including a five month jailsentence on the count of distributing an intimate image. [67] Distinguishing this case from the case at bar, was the length of his relationship with the victim, which resulted in the offencebeing categorized as domestic violence: an aggravating factor under the Criminal Code. In addition, the intimate image, a videorecording of sexual intercourse, was sent to a friend of the victim. [68] R v.

A.C., 2017 ONCJ 317 The accused was a 32-year-old man with no prior record who pled guilty to sharing intimateimages. His conduct was judged to fall on the high end of the spectrum of conduct captured by s.162.1 as he shared her images with thewhole world via the internet. The accused had been in a four-year relationship with the victim. While the images had been taken withher consent, she never gave the offender permission to share or post them online. The accused posted the images as part of a cyberbulling campaign, with degrading comments as well as her identity and private health information.

It was a planned and deliberate actdesigned to humiliate the victim. [69] The Crown proceeded summarily and the accused was sentenced to five months imprisonment to be followed by twelvemonths supervised probation. [70] Defence counsel provided four case precedents to the Court: [71] R v. Agoston, 2017 ONSC 3425 The accused plead guilty to one count of distributing an intimate image. A one-year

conditional discharge was imposed. The daughter of a family friend sent him two images of herself that he shared with two co-workersbefore deleting them. He did not solicit the images from the complainant. There was no internet distribution. His pre-sentence reportwas very positive. The offence appeared to be an unplanned, momentary lapse in judgment. The Court determined that the distributionwas extremely limited and fell on the less serious end of the spectrum of this offence. [72] R v. P.S.D., 2016 BCPC 400 The accused was 22-years-old.

At the end of a two-day trial on more serious charges,he pled guilty to distributing an intimate image and once count of breaching his recognizance. The image was taken without the consentof the victim. The recognizance breach was a no-contact breach where the complaint either had agreed to contact or had initiated it. TheCourt emphasized the rashness of the taking of the images, which were quite blurry, making it difficult to identify the complainant.

There was not widespread distribution; the accused sent them to two friends. [73] After factoring that the accused had spent sixty days in custody and determining that a relatively low level of harm hadoccurred and the prospects for this youthful first offender were positive, the Court imposed a probationary sentence of two years, withprotective relief. [74] R v. S, is an unreported oral decision of the Provincial Court of Manitoba (including a non-publication order to protect theidentity of the complainant) dated November 26, 2018.

In that case, Judge Huberdeau sentenced a 21-year-old female accused who pledguilty to distributing an intimate image, video on twitter. She had no prior criminal record. Dr. Kolton, a clinical psychologist assessedher as a low risk to re-offend. One of the accused’s motivations in uploading the video and posting on-line comments was to humiliatethe victim.

While the video recording was removed shortly after it was uploaded, others viewed it while it was being shared with oneperson, which meant its availability could be indefinite. [75] The Court rejected the Defence request for a conditional discharge and imposed a sixty-day conditional sentence order, to beserved in the community, followed by eighteen months of supervised probation. [76] R v. B.Z., 2016 ONCJ 547 A 19-year-old male pled guilty to one count of criminal harassment involving thedistribution of intimate images without consent of his girlfriend of three years who was not yet 18-years-old.

The accused posted tennude and semi nude images, with the victim’s face visible on a pornographic website accessible to the public. The images were widelyviewed and had been available on-line for two years during the time they were romantically involved. The offender was not beingsentenced under the newly proclaimed (at the time) s. 162.1(1) of the Criminal Code.

The accused at the time of sentencing had takensteps to rehabilitate himself, had apologized and was remorseful from the beginning and co-operated with police. [77] Because of his youthfulness, the Court determined that only a short period of custody was required. The accused wassentenced to time served of four days at 1.5 credit: effectively six days, to be followed by a suspended sentence with probation for twelvemonths. [78] These case precedents suggest that when dealing with charges of distributing intimate images without consent, non-custodialsentences for offenders are the exception.

Even the presence of mitigating factors wherein the offender pleads guilty, is youthful and hasno criminal record, ordinarily results in a custodial sentence. It is clear that the Courts view denunciation and deterrence as the primarysentencing factors at play, given the privacy breach and likelihood of significant trauma to the victim. [79] It is also clear that where the Crown elects to proceed summarily, a maximum sentence of six months will not be imposedwithout the presence of several aggravating circumstances, which often includes the wide distribution of the image via the internet.

Decision [80] In the context of the two offences in this case, the facts and this offender, denunciation and general deterrence are significantsentencing principles.

Specific deterrence is also required due to the persistence and duration of these offences. [81] B.S.’s conduct needs to be denounced; he and others like him need to be deterred from committing these offences and the harmthat ensues. [82] Even for a first offender, separation from society will most often be necessary for offenders who commit offences such asthese, but where the Crown proceeds summarily, a maximum sentence of six months for a person with no criminal record will beunusual. [83] The images in this case were consensual, yet shared without consent.

While the scope of distribution was narrow, with V’sfather and V, there remains only the accused’s assurances that all intimate images were contained in his phone the police seized and thatthey were not uploaded to a computer or the Cloud.

While B.S.’s decision to distribute the images was enabled by his addiction, it was aconsidered choice to do so, given the visit from police telling him to cease contact with V. [84] Considering the focussed effort B.S. has put into his rehabilitation as well as the fact he is assessed as a low risk to re-offend,should he maintain sober, I am satisfied that a fit sentence recognizing the significance of these offences is as follows: • On the count of distributing intimate images, a sentence of three months in jail; • On the count of criminal harassment, a sentence of one month in jail; [85] I am satisfied that because each of the offences were separate acts, that the sentences should be served consecutive to the other,for a total sentence of four months jail. [86]

Section 718.2(

c) of the Criminal Code sets out that where consecutive sentences are imposed, the combined sentence shouldnot be unduly long or harsh: otherwise known as the totality principle or the “one last look” principle of sentencing.

[ 87 ] I am satisfied that the combined sentence is not a crushing one. As it is not unduly long or harsh, there will be no reduction in sentence for totality. [ 88 ] B.S. will be credited for the twenty-six days he has spent in jail.

He is entitled to enhanced credit of 1.5 days giving him total of thirty-nine days, of time served. [ 89 ] This reduces the sentence to be served to eighty-one days going forward. [ 90 ] I am not satisfied that the principles of sentencing, particularly denunciation and deterrence would be met if I allowed the accused to serve his sentence conditionally in the community under a conditional sentence order.

I decline to make a conditional sentence order. [ 91 ] As the remaining sentence to be served is less than ninety days, I am prepared to grant the accused’s request to serve that time intermittently, on weekends, to allow him to purse his recovery and employment during the week. [ 92 ] The accused shall initially report to the Winnipeg Remand Center, 141 Kennedy, Winnipeg, Manitoba and thereafter as directed by Corrections Manitoba.

The sentence will commence Friday, May 17, 2019 at 7:00 p.m. to Sunday May 19, 2019 at 4:00 p.m. and every consecutive weekend until the completion of the sentence. [ 93 ] Additionally B.S. will be placed on supervised probation, on both counts, for a period of two years with the following conditions: • Keep the peace and be of good behaviour; • Report to a Probation Officer within two working days and thereafter as directed; • Attend, participate and complete any and all counselling, treatment and programming as directed by your Probation Officer; • Abstain absolutely from the consumption or possession of alcohol, non-prescription drugs and/or other intoxicants except prescription drugs prescribed to you by your doctor; • Continue to attend A.A. regularly; • No contact or communication directly or indirectly with V or her father; • Not attend within 100 metres of the home, workplace, school or place of worship of V or her father; • Not to possess any images of the complainant in this case that meet the definition of intimate images in s. 162.1 of the Criminal Code . [ 94 ] I have considered s. 162.2(1) of the Criminal Code as it relates to making an order prohibiting the accused from accessing the internet.

Because the offender in this case did not distribute the intimate images on the internet, I decline to make such an order. [ 95 ] Pursuant to s. 109(1)(

b) of the Criminal Code B.S. is prohibited from possessing any firearm, any cross-bow, restricted weapon, prohibited weapon, ammunition and explosive substance for a period beginning on the day this order is made and ending in ten years after his release from imprisonment. [ 96 ] The Crown does not seek any ancillary orders, consequently no others are ordered. “Original signed by” M.P. THOMPSON, P.J.