R. v. P.D., 2011 ONCJ 133

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. COURT FILE No.: Toronto D314531 DATE: 2011·02·25 Citation: R. v. P.D. , 2011 ONCJ 133 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — P.D. Before Justice Paul Robertson Heard on January 7, 8, 20, April 22, June 1, August 25, 30, September 13, December 3, 2010 and February 8, 2011 Reasons for Judgment released on September 13, 2010 Reasons for Sentence released on February 25, 2011

Dominique Kennedy .................................................................................................. for the Crown Charles Wagman .............................................................................................. for the accused P.D. ROBERTSON, J.: [ 1 ] This is reasons for sentence. [ 2 ] P.D. was convicted following a lengthy trial of criminal harassment and 4 counts of voyeurism, one under each of s. 162 (1) (a), (b), (

c) and s. 162 (4) of the Criminal Code . [ 3 ] The facts as I found them can be summarized succinctly as follows: P.D. and the complainant were involved in a boyfriend and girlfriend relationship during which time P.D. made a sexual explicit video of the complainant without her knowledge. When the relationship went sour, P.D. posted the video on his Facebook page and then sent 13 friends and family an email inviting them to view the video.

The video was also sent as an attachment to the emails. [ 4 ] I heard sentencing submissions on December 3, 2010 as which time it became apparent that the defence did not accept as an aggravating factor on sentence, the Crown’s assertion that the video, as a result of being posted on Facebook and sent by email, was now lost forever in cyberspace.

Consequently, a Gardiner hearing was held to determine if the Crown could prove this aggravating factor beyond a reasonable doubt. [ 5 ] On February 8, 2011 I found that the Crown had failed to prove that the posting on Facebook, for the very short time that the account was active, and the sending of the emails, had resulted in a general release of the video to the internet. [ 6 ] That is not to say that the evidence showed an absolute containment of the video to those 13 people. It is obvious from the call logs, exhibit 1; some of the recipients watched the video.

It was admitted that ten of the thirteen people who received the email did not download the video and did, subsequently delete the email and the video attachment. There was no evidence as to what the other 3 recipients did with the emailed video. Further, the expert evidence showed that despite deleting the video, deleted files remain on the hard drive of computers and can be reasonably easily recovered until they are over written by other more recently deleted material.

Barring a complete assessment of each computer hard drive, it is impossible to confirm whether the deleted video no longer can be recovered. [ 7 ] The relevance of this ambiguity is that it demonstrates it is not unreasonable for the complainant to fear that the video is potentially in wider circulation. This was her fear as expressed in her victim impact statement, exhibit 15. [ 8 ] Consideration of sentence always starts with an assessment of the mitigating and aggravating factors. [ 9 ] There are few mitigating factors.

Let me address the pre-sentence report. [ 10 ] The pre-sentence report is somewhat positive. In the report, P.D. expressed remorse and acknowledged that his actions were both inappropriate and illegal. This acknowledgement however, is tempered in that P.D., although able to articulate how the charges have impacted him, was not able to articulate how his actions affected or may have affected the complainant. He lacks empathy for the victim. [ 11 ] The report in my view demonstrates that the accused still continues to have a less than complete insight into his wrongdoing.

He continues to express the view he expressed at trial, that the incident has been blown out of proportion – that the complainant wanted to be photographed in the nude and that it is only because her family became aware of the video that she became concerned. Of course, the facts are that the family became aware of the video when the accused sent the video to the complainant’s brother. [ 12 ] Similarly, P.D. when asked what motivated him to commit the offences told the author of the pre-sentence report that his actions were prompted by the fact that he felt hurt and betrayed when he heard of Ms. S.’s infidelity.

As I found in my judgment, there is no evidence to support such a claim. P.D. was aware of the complainant’s infidelity long before the offences arose. He repeatedly demonstrated his willingness to continue the relationship after he was aware of her actions. He has not accepted that his motivation for the offences was to strike back at Ms. S. for rejecting him and being unwilling to continue their relationship. [ 13 ] I accept that P.D. appears to have moved on in his life and is now in what appears to be a stable marriage. There has been no contact between the parties in the past two years.

I accept the statements of the accused’s sister that at the time of the offence, his relationship with the complainant was not a healthy one, he was not “grounded or stable”, and he was associating with questionable individuals. [ 14 ] I also accept that P.D. is a moderate to low risk of reoffending. Although the offence of voyeurism contains inherently a sexual aspect, the facts in this case are quite unique and I do not find the accused poses a significant risk of reoffending in a sexual way. This offence was not motivated for a sexual purpose but was

an act designed to embarrass and humiliate the complainant. [ 15 ] I take into consideration the accused’s 16 days of pre-trial custody. The pre-trial custody occurred before the new legislation, at a time when credit of 2 days for every day of pre-trial custody was routinely granted. I see no reason not to grant such enhanced credit on the facts of this case and therefore the accused shall be granted the equivalent of one month of time served. [ 16 ] P.D. was also subject to strict bail terms for a portion of his pre-trial custody, including a curfew; for a period of about 3 months before it was changed. They are not particularly onerous.

[ 17 ] The defence submitted that a mitigating factor on sentence is that the accused has had to endure the expense of a lengthy trial. I do not accept this as a mitigating factor. The accused’s wish to exercise his right to a trial and have the crown prove every element of the offence is neither an aggravating factor in the hands of the crown on sentence, nor a mitigating factor for the defence.

The exercise of a right can’t be converted into a sword. [ 18 ] In my view this trial could have been much shorter, but the defence is entitled to raise every issue and require the crown to prove beyond a reasonable doubt every material element. The fact that the defence took that route, cannot now be used as a factor in mitigation of sentence. [ 19 ] There are a number of aggravating factors. [ 20 ] The most serious of the voyeurism convictions is that of the offence under s. 162(4) of the Code, of distributing the video. The distribution of the video was a planned and contemplated act.

It was not the result of a spontaneous outburst of emotion. To effect his plan, P.D. had to think first of the plan, then open a Facebook account specifically to execute his plan; he had to post the video to his Facebook page and he then had to send emails with the video as an attachment to some of the people who could not access Facebook. It took some time to both hatch and execute the plan. [ 21 ] The plan was designed to achieve maximum embarrassment. On P.D.’s own evidence, he published the video to humiliate the victim.

Given his past relationship with the complainant, he was aware of the fact the complainant held her brother in high regard and that he was someone she looked to for approval. It was no accident that P.D. chose to forward the email to her brother to “prove” to the victim he possessed a sex video of her. In doing so he achieved his purpose of maximizing the embarrassment to the victim.

In the words of the victim, he “tortured me by telling me he was sending the video to my brother.” [ 22 ] By forwarding the video to their mutual friends, he also ensured, by design, the continued and long term victimization of the complainant. As expressed by Ms. S., it created a negative effect on her reputation by creating a negative image of her.

As Madam Crown characterized it, “It poisoned the way people saw her.” [ 23 ] The embarrassment was not just isolated to the fact the video was disclosed but that the accused also identified the complainant, whose face could not be seen, as being the person on the video. This ensured that the victim’s embarrassment would be relived whenever she meets a person who she knew viewed or was aware of the video.

The impact of this was demonstrated when the complainant in her victim impact statement explained how she felt when she had to leave a public function to avoid contact with one of the recipient’s of the video and how she had to change her gym, as one of the recipients also was a member of that gym. [ 24 ] I find it also aggravating that the material circulated was a video as opposed to a single still picture. [ 25 ] The impact on the victim has been significant.

In her words, “The images forwarded to her friends and family have had a devastating impact on her and her family’s life.” [ 26 ] A further aggravating factor - the accused has a criminal record. It is somewhat dated but the most recent conviction is for a crime of violence - an assault causing bodily in 1999 which resulted in a short period of incarceration. The nature of the record is aggravating in that in addition to the voyeurism offences, the accused also threatened the complainant, to come after her should she have inflicted him with a sexually transmitted disease.

This was a fabricated fear as I pointed out in my judgment, but his threat was very real and one which was part of the continuing criminal harassment of the complainant. [ 27 ] The relationship between the parties was a domestic one and although the parties did not reside together and may not have quite reached the stage of a common law arrangement, it was not far from it even on the accused’s own evidence. The statutory aggravating factor as set out in s. 718.2 (ii) is at least in principle, a relevant sentencing consideration on the facts of this case.

The accused’s actions were a violation of the trust inherent in any domestic relationship as set out in s. 718.2 (iii). [ 28 ] Let me now turn to the sentencing principles that are applicable in this case. [ 29 ] The paramount principles are specific and general deterrence and denunciation.

Rehabilitation is also applicable, but is of lesser importance. [ 30 ] As regard to specific deterrence, throughout his trial testimony and again in statements made in the pre-sentence report, P.D. still doesn’t “get it.” He continues to see the victim as the cause for his predicament; he minimizes any impact his actions might have had on her and fails to be able to articulate any potential impact the distribution of the video might have had on her. [ 31 ] He fails to appreciate the severity of his premeditated attack on his ex-girlfriend’s sexual integrity.

He does not or cannot appreciate the impact on the victim. [ 32 ] The sentence that is to be imposed must be one that specifically deters P.D.. [ 33 ] As regard to the principle of general deterrence – crimes involving the use of new technologies are becoming increasing common and the misuse of social networking sites such as Facebook are becoming common vehicles for the commission of crime. The potential for harm is enormous.

With the single click of a mouse, information can be circulated instantly and globally and once circulated, the ability to undue any harm caused, is very limited. [ 34 ] Although I have concluded that there was not wide circulation of the video in this case, or at least the crown can’t prove that beyond a reasonable doubt, the potential existed. The accused lost control of the video when he posted it on Facebook and forwarded it as an attachment to emails.

But for the fact that the accused was almost immediately contacted by the police resulting in him attempting to cover his tracks by closing his newly minted Facebook account, the distribution of the video would likely have been much more extensive. The steps taken to limit its distribution appeared more by fluke than design.

[ 35 ] Given the common use of social networking sites and their potential for enormous harm, general deterrence plays a significant principle in this sentencing. A clear message to all users of social networking sites is a valuable sentencing objective in this case. [ 36 ] Denunciation is also a valid sentencing principle. The violation here was one of trust in a near domestic relationship. The violation was of the victim’s sexual integrity. P.D. does not appear to consider the charges or his actions very serious.

Denunciation should be clear. [ 37 ] These are the key sentencing principles but that does not mean that rehabilitation is not applicable. The accused is 34 years old, and although he is not a youth or even particularly youthful, his record is dated and today appears to be leading a pro-social life. His strides in the recent past to leave behind his poor influences should be encouraged.

The sentence that is imposed should not be crushing. [ 38 ] The crown seeks a sentence in the range of 9 to 12 months, to be followed by 2 years of probation on terms. [ 39 ] The defence seeks a suspended sentence or in the alternative, a conditional sentence. [ 40 ] Let me first address the submission as to the suspended sentence. A suspended sentence is entirely outside the range. Probationary measures would not themselves adequately address the seriousness of the offence of making a visual recording for a sexual purpose, let alone the much more serious offence of distributing such a recording.

The first three of the four voyeurism offences were committed at a time when the complainant and P.D. were involved in a relationship.

The offences are breaches of the most personal of trusts between partners. [ 41 ] It should also not be lost in this sentencing that in addition to the voyeurism convictions, there is a conviction for criminal harassment, including factually, a threat to do bodily harm to the complainant. [ 42 ] Even in light of the time served in pre-trial custody and considering the restrictive bail terms, I am not of the view that a suspended sentence would satisfy the applicable sentencing principles of specific and general deterrence or denunciation. [ 43 ] As to the appropriateness of a conditional sentence, I accept that a period of incarceration is warranted and what is warranted is one of less than 2 years.

I agree no other statutory prohibitions exist, precluding consideration of a conditional sentence. [ 44 ] As a condition precedent to determining if an offender should be permitted to serve their sentence in the community, I must be satisfied that the safety of the community would not be endangered by the offender serving his sentence in the community. [ 45 ] In considering risk I am directed to look at both the risk of reoffending and the gravity of the damage that could ensue from the further offence; see R. v.

Proulx [2000] 2 S.C.R. 61 . (S.C.C.). [ 46 ] I do not consider the accused to pose a significant risk. He has been out of custody for 2 years without incident and there is no evidence before me that there are any outstanding charges or that he has had any contact with the complainant. He appears now to be involved in a stable marriage; he is employed and on the information provided by his sister, no longer involved with “questionable individuals”. He was assessed by Mr.

Grant Fair of the Ministry of Community Safety and Correctional Services who is an in house counsellor specializing in counselling sexual offenders. The accused was assessed as a moderate to low risk to reoffend based on actuarial risk assessment instruments. [ 47 ] In addition to the low risk of reoffending, the unique facts in this case make it difficult to assess the gravity of harm or damage that might occur if the accused re-offended. Although psychological harm, which is a valid consideration, might be significant to the victim; the gravity of any physical harm would be low.

Although the accused has a record, there is only one entry for a crime of violence, which is quite dated and the sentence imposed was reasonably minor. Overall, I do not feel that the gravity of the damage is such that a conditional sentence should be excluded from consideration on the basis of the “safety risk.” [ 48 ] This however does not mean that a conditional sentence is an appropriate disposition.

For a conditional sentence to be appropriate, it must also be compatible with the sentencing principles outlined in sections 718 to 718.2 of the Code. [ 49 ] As stated above, the paramount principles of sentencing in this case are deterrence, both specific and general and denunciation. There are few if any mitigating factors on sentence and there are numerous aggravating factors. Despite a lengthy trial, following which detailed reasons for judgment were rendered, P.D.’s expression of remorse is superficial at best.

He continues to minimize his actions and blames the complainant for blowing the issue out of proportion. He continues to maintain his rationale for his acts because he felt hurt and betrayed by the complainant. These explanations were dismissed at trial as having no evidential foundation even on P.D.’s own evidence.

Similarly, his belief that the complainant was not embarrassed by the video, only by the disclosure of the video to her family, again does not have an evidentiary foundation; and again I note that it was P.D. who disclosed the video to the complainant’s family by sending her brother a copy of the sexually explicit video. [ 50 ] All of this is relevant to P.D.’s ability or lack of ability to appreciate the effects of his actions on the complainant. That has not improved over the lengthy time while this matter has made its way through the trial process.

I accept the statement of the probation officer that P.D. lacks any empathy for the victim – he can only see how he has been affected by the events; see page 17 of exhibit 16, the pre-sentence report. [ 51 ] Given that P.D. does not appear to have gained any insight into his offending behaviour, supervision and even some loss of liberty commensurate with a conditional sentence, in my view would fall far short of what P.D. requires.

To promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community, is not in my view a sentencing principle achievable in the case of P.D. in the context of a conditional sentence. It requires far more to get his attention. [ 52 ] In addition to the deterrence to the accused, this offence is one where general deterrence plays an enhanced role. With

the proliferation of social networking sites, the opportunity to misuse such sites is significant and with devastating results to the victims; many of the impacts are significant and long lasting. This is one of those rare cases where general deterrence may actually play an enhanced and meaningful role in sentencing. The principle of general deterrence has been the subject of considerable judicial comment with great concern expressed over its over-use to justify incarceration, but it remains a recognized sentencing principle.

Satisfying general deterrence when it plays an enhanced role is difficult within the context of a conditional sentence. The significant denunciatory effect of jail is needed in expressing the message. [ 53 ] Additional sentencing principles applicable to the sentencing of P.D. are s. 718.2 (ii) and (iii) which deal with acts of violence in the domestic context and abusing a position of trust in relation to the victim. Although not entirely a domestic context, there is some element in the boyfriend and girlfriend relationship.

And there is certainly an element of breach of trust in the acts perpetrated by the accused in the making and distribution of the video. [ 54 ] While a conditional sentence can adequately address the need for deterrence and denunciation, even in a case where those considerations are paramount, it must be acknowledged that a conditional sentence does not generally speaking have the same denunciatory effect as a period of imprisonment.; see R. v. Killan

(1999) O.J. 4829 (Ont. C. A.) [ 55 ] In the context of this case, in reviewing and weighing the sentencing principles in s. 718 – 718.2 of the Code, I have concluded that overall a conditional sentence would fail to strike the right balance in emphasizing the paramount principles. A conditional sentence would fail to place the right weight on denunciation, specific deterrence to P.D. and very importantly in this case, fail to address adequately general deterrence, especially as it plays an enhanced role.

A sentence of a period of incarceration to be served in a jail is the appropriate sentence. [ 56 ] The offence of distributing the video under section 162(4) is the most serious of the voyeurism offences. Had the video been shown to have been posted on the internet I would have considered a sentence of 6 months. However, in light of the fact its circulation was more limited, a sentence of 5 months is appropriate. [ 57 ] The offences of making the video in any of the circumstances as set out in s. 162 (1) (a), (

b) or (

c) were committed about 3 months prior to the distribution of the video and therefore call for a separate and distinct sentence. At the time the video was made, P.D. and Ms. S. were boyfriend and girlfriend. Ms. S. readily admitted she posed naked for pictures to be taken by P.D. but denied that she had ever agreed to the taking of a video. Her testimony was corroborated by the text messages, exhibit 1. I accepted her evidence on this point. It is not disputed however, that the video was taken at the same place and at the same time as the photos were taken. Although the act of surreptitiously recording one’s mate in excess of that which she agreed is nevertheless

an act of gross breach of trust, it is perhaps less egregious in that context. A sentence of 2 months is appropriate. [ 58 ] As each of these offences is the same delict, the offences under s. 162(1) (

b) and s. 162(1) (

c) should be Kienappled. [ 59 ] This leaves the offence of criminal harassment. This offence occurs before, during and after the distribution of the video. It includes the threat that, “You have no idea how bad it’s going to get.” And despite Ms. S.’s plea that he stay out of her life, there were a series of emails wherein he taunts her by stating, “Well the boys like it”. This is followed by the threat that should he discover that he has been infected with a sexually transmitted disease, she better be somewhere in Greece where he can’t find her.

The appropriate sentence for this offence is 2 months. [ 60 ] There are two other sentencing principles which are relevant to this sentence. One is consideration for the time served in pre-trial custody and the other is the principle of totality. [ 61 ] As regard to pre-trial custody, I am going to reduce the sentence on count 2 to reflect the 16 days of pre-trial credit granted at a rate of 2:1 - so for count 2, the sentence will be 1 month on top of 16 days pre-trial credit.

As regard to the application of the principle of totality, in order to reflect what I consider to be the overall appropriate sentence, I am going to make the sentence on count 2 concurrent. [ 62 ] The final sentence therefore will be on count 6, a sentence of 5 months, on count 3, a sentence of 2 months consecutive and on count 2, 1 month concurrent on top of 16 days time served on 2:1 basis for a total sentence of 7 months. [ 63 ] In addition to the jail term, a probationary term will follow of 2 years on the following terms: [ 64 ] Report upon release and thereafter as directed [ 65 ] Keep the peace and be of good behaviour [ 66 ] Enrol and complete PAR counselling [ 67 ] Enrol and complete anger management [ 68 ] Take any other counselling as directed by your probation officer [ 69 ] Sign any and all releases as required by your probation officer so as to permit them to monitor your progress in any such counselling [ 70 ] Possess no weapons as defined by the Criminal Code [ 71 ] No contact directly or indirectly with M.S., nor are you to be with 300 metres of any place you know her to live, work, go to school or happen to be

Released: February 25, 2010 Signed: “Justice Robertson”