R. v. P.S.D. Date:, 2016 BCPC 400

Citation: R. v. P.S.D. Date: 20161212 2016 BCPC 400 File Nos: 213343-1-K; 218384-2-KC Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. P.S.D. BAN ON PUBLICATION PURSUANT TO

SECTION 486.4 OF THE CRIMINAL CODE REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. SUDEYKO Counsel for the Crown: M. Fortino

Counsel for the Defendant: R. Gill Place of Hearing: Surrey , B.C. Date of Hearing: October 17, 2016 Date of Judgment: December 12, 2016 INTRODUCTION [ 1 ] P.S.D. (“Mr. D.”) has pled guilty to one count of distributing an intimate image, contrary to s. 162.1(1) of the Criminal Code .

He also pled guilty to one count of breach of his bail recognizance, contrary to s. 145(3) of the Criminal Code . [ 2 ] The Crown submits the appropriate sentence is a short term of incarceration, that of 90 days, on the distribution of an intimate image, with a concurrent term of 30 days on the breach of recognizance, followed by 18 months of probation. That would be a time- served sentence, since Mr. D. spent the equivalent of 90 days detained in pre-trial custody. [ 3 ] The Defence submits that a Conditional Discharge with a lengthy probation of 2 to 3 years is appropriate as a global sentence.

FACTS [ 4 ] The context out of which these charges arise was, in part, provided through two days of trial in which Mr. D. faced significantly more serious charges. In the end, however, the allegations were not proven as a result of the credibility of the complainant, K.S. (“Ms. S.”), being significantly undermined, and the Crown accepted guilty pleas to the offences that Mr. D. did not dispute.

The details of those other related charges, as offered through the evidence, are for the most part not relevant to this sentencing. [ 5 ] However, there are aspects of the evidence which I do find relevant, and were not disputed at the time of sentencing. They are as follows:

(1) That Mr. D. and Ms. S., both in their early twenties, had been in a long term, “on again/off again” relationship that began when they were teenagers and had been mostly hidden, at least from her family. The relationship was volatile;

(2) That at the time of the incident giving rise to the charges, it was seemingly an “off again” period and Mr. D. was strongly pursuing Ms. S.’s attention, primarily through electronic means, and she was rejecting his communication and his attempts to meet with her. He was very frustrated;

(3) That on October 25, 2015, after a night out with her friends and upon her return in the early morning hours, Mr. D. was present in her driveway, where she lived with her family. They then left together in her car. It is unclear as to all that happened in that car, although both parties were later found to have some physical injuries;

(4) That during some period in that car, while Ms. S. was only partially clothed, and without her consent, Mr. D. took pictures of her on his phone. He then transmitted some of those pictures to two friends with instructions to save the pictures and with the intention at that time to cause her emotional harm;

(5) That the pictures included portions of Ms. S.’s bare breasts and clearly showed her lack of consent. They were also of poor quality; that is, they were quite blurry and it was somewhat difficult to recognize Ms. S.;

(6) That Mr. D. had ongoing and direct contact with Ms. S. over an extended period of time after the charges were laid and contrary to the bail recognizance;

(7) That Ms. S. was complicit in that contact and that breach, by either agreeing to it, or initiating it;

(8) That Mr. D. spent a total of 60 days (90 days with enhanced credit) in pretrial custody. THE PURPOSE, OBJECTIVES AND PRINCIPLES OF SENTENCING [ 6 ] The “fundamental purpose” of sentencing as set out at s. 718 of the Criminal Code is to “the maintenance of a just, peaceful,

and safe society by imposing just sanctions” that can include certain objectives, including denunciation, deterrence, rehabilitation, reparation, and a sense of responsibility and acknowledgement of harm done to victims. [ 7 ] The “fundamental principle” of sentencing as set out at s. 718.1 of the Criminal Code is that of proportionality; that the sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. [ 8 ] And at s. 718.2, “other sentencing principles” are set out and include considerations of aggravating and mitigating circumstances, as well as that of parity, totality and restraint.

APPLICATION OF SENTENCING PRINCIPLES 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 of behavior that gives rise to this offence. That is, to transmit intimate images of someone contrary to their consent, so as to have those images available to others, and perhaps to anyone who can access them, has resulted in significant emotional trauma to victims. That is particularly the case where the victim is a young person and a female.

Where such conduct includes cyber-bullying, in which the victim is further tormented by the receivers or recipients of those images, the result has even been tragic, with young women seemingly taking their 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 find that the objectives of denunciation and general deterrence are paramount, as are the need for acceptance of responsibility and acknowledgement of harm done to victims and the community.

Proportionality [ 11 ] The fundamental principle of sentencing is that of proportionality, which in regard to the gravity of the offence includes not just the nature of the offence but also an examination of the circumstances giving rise to, and the context of, the offence. It also includes an examination of the offender’s particular circumstances in regard to his degree of responsibility. [ 12 ] In the context of this relationship, Mr. D.’s behavior came at a time when he was very frustrated and angered by seemingly mixed signals – a putting off of communication by Ms.

S. without a certain end to the relationship. Indeed that pattern would even continue after the charges were laid, when the relationship continued and led to the breach of recognizance. [ 13 ] As his counsel rightly points out, Mr. D.’s frustration and anger is no excuse for his behavior. However, I find the picture taking was a rash decision made in that context at that moment, rather than a well-planned action.

Forwarding the pictures to his two friends shows some planning but nothing beyond that transmission has occurred. [ 14 ] The rashness of that action, pictures taken with a cell phone during an interaction in a car has, perhaps only fortuitously, led to low quality pictures with limited identifiable features, such that the likelihood of future transmission is much reduced. The existence of a transmitted image to forever have a potential for further transmission is a feature of this offence that is aggravating, although Ms.

S. chose not to provide a Victim Impact Statement, such that it is unclear what the effect of that risk has upon her. [ 15 ] In the end, I conclude that, while the gravity of the offence in general is significant, the circumstances of this particular case are less egregious than, for example, a case involving significant planning and forethought and resulting in a transmission of identifiable intimate images widely distributed on the internet. The sentence must be proportionate to those considerations.

Other Sentencing Principles aggravating circumstances [ 16 ] There are no specified or deemed aggravating circumstances as set out in s. 718.2 (

a) the Criminal Code applicable to this case. However, the Crown submitted that it is more aggravating that Mr. D. both took and transmitted the pictures of Ms. S. when she was clearly not consenting. This is in contrast to the case of intimate images originally being provided with consent, but later transmitted on a non-consensual basis. [ 17 ] I generally agree with the Crown. I would only add that in those cases where an intimate image has been shared in the context of a relationship, the breach of trust by later sharing such an image with others can be very devastating. That was the circumstance in R. v.

Zhou , 2016 ONCJ 547 , referred to below in my reasons. mitigating circumstances [ 18 ] As for mitigating circumstances, Mr. D. is still youthful at 22 years of age. He has no criminal record. He has pled guilty and I find has done so at the first realistic opportunity. That is an acceptance of responsibility, which has also been expressed by him through his counsel. His background is positive, in that his father left the family early on and Mr. D. assumed the responsibility of that role successfully.

He continues to have significant family and community support, as was evidenced by the letters of support filed on his behalf. He also has employment and future plans. [ 19 ] It is because of that strong background and family support that Mr. D. presents as a positive prospect for rehabilitation, which is another objective of sentencing that I must, and do, consider. parity [ 20 ] I was informed by the Crown and Defence that no cases under s. 162.1(1) have yet been reported. R. v. Zhou , supra was the only related case forwarded by them.

In that case, in the continuing context of a relationship, Zhou transmitted very intimate and

identifiable images of his girlfriend to a pornography site over a lengthy period of time, which were viewed some 1,333 times. Thevictim was devastated. The offence occurred before s. 162.1(1) came into force and so was dealt with as a Criminal Harassment,although there was significant discussion of the section, including the harm it was meant to address. Zhou received a suspendedsentence. restraint [21] In all cases, but in particular cases involving a first offender, there should be no loss of liberty and the least restrictive sentence imposed, if appropriate (see both s. 718.2(

e) and (f), and R. v. Pierce, (ON CA), [1996] 30 O.R. (3rd) 538 (Ont.C.A.)).

CONCLUSION [22] With respect to the offence of transmitting intimate images contrary to s. 162.1(1), I have concluded that the significant harmthat can be caused by such behavior requires that the objectives of denunciation and general deterrence are paramount and that it would,therefore, be contrary to the public interest to grant a discharge. [23] However, taking into account the particular circumstances of this offence as a rash action within the context of this volatile anddysfunctional relationship, the relatively low level of harm that has occurred, and the positive rehabilitative prospects for this first timeoffender, I also find that a jail sentence is not necessary. [24] Therefore I suspend the passing of sentence and place Mr.

D. on probation for a period of 2 years, with the statutory conditions,but also with a No Contact and No Go provision, and counselling if deemed appropriate by the Probation Officer. [25] As for the Breach of Recognizance offence, the contact was in clear breach of his conditions, but there are uniquecircumstances here and reflect the ongoing dysfunctional nature of the relationship, which is now seemingly over. I impose a conditionaldischarge and conditions of probation for one year on identical terms and to run concurrently with the sentence on the substantiveoffence. The Honourable Judge D.

Sudeyko Provincial Court of British Columbia