R v NG et al, 2015 MBCA 81

Citation: R v NG et al, 2015 MBCA 81 Date: 20150903 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Alan D. MacInnes Madam Justice Diana M. Cameron Docket: AY14-30-08301 ) ) BETWEEN : ) C. C. McKay ) for the Appellant G. J. G. HER MAJESTY THE QUEEN ) ) Respondent ) J. A. Skinner ) for the Appellant N. L. G. - and - ) ) G. J. G. ) A. Y. Kotler and ) C. St.

Croix (Young Person) Appellant ) for the Respondent ) - and - ) ) Appeals heard: Docket: AY14-30-08302 ) June 5, 2015 ) BETWEEN : ) Judgment delivered: ) September 3, 2015 HER MAJESTY THE QUEEN ) ) Respondent ) ) - and - ) ) N. L. G. ) ) (Young Person) Appellant ) NOTICE OF RESTRICTION ON PUBLICATION : No one may publish any information that could identify a person as having been dealt with under the Youth Criminal Justice Act (see section 110(1)).

NOTICE OF RESTRICTION ON PUBLICATION : No one may publish any information that could identify any child victim or child witness that is connected with an offence committed by a young person that is being dealt with under the Youth Criminal Justice Act (s ee section 111(1)). On appeal from 2014 MBPC 63 , 311 ManR (2d) 286 CAMERON JA Introduction and Issues [ 1 ] This sentence appeal involves the relatively recent phenomenon of the criminal use of social media. In this case, it was used to victimize a 14-year-old girl through cyber bullying and sexual exploitation. At the time of the commission of the offences,

the appellants were just four months shy of their 18th birthday. [ 2 ] The young person appellants (the appellants) are twin brothers who plead guilty to the offences of invitation to sexual touching (

section 152 of the Criminal Code ), possession of child pornography (

section 163.1(4) ), distribution of child pornography (

section 163.1(3) ) and transmission of sexually explicit material to a child (

section 171.1(1) ( b )). For each offence the sentencing judge imposed a combined sentence of three years consisting of a two-year custody and supervision order (comprised of 16 months’ secure custody, followed by eight months of community supervision). The custody and supervision order was to be followed by 12 months of supervised probation.

This three-year combined sentence was imposed on each offence, to be served concurrently. [ 3 ] As the appellants were convicted of the same offences involving virtually the same facts, have the same background and rely on the same arguments, I will deal with them together in these reasons. [ 4 ] While the appellants list a number of grounds of appeal, their main ground is that the sentence imposed is unfit in that it constituted the maximum custodial sentence available pursuant to section 42(2)(

n) of the Youth Criminal Justice Act (the YCJA ). They argue that, in imposing such a sentence, the sentencing judge did not adequately consider the principles and provisions of the YCJA or the personal circumstances of the appellants, including their cognitive impairments. [ 5 ] The Crown agrees that leave to appeal should be granted on the basis that, by making the sentences concurrent on all counts, the effect was that each sentence totalled three years thereby exceeding the two-year total sentence allowable pursuant to section 42(14) of the YCJA . That

section provides: Duration of youth sentence for a single offence 42(14) No youth sentence, other than an order made under paragraph (2)( j ), ( n ), ( o ), (

q) or ( r ), shall continue in force for more than two years. If the youth sentence comprises more than one sanction imposed at the same time in respect of the same offence, the combined duration of the sanctions shall not exceed two years, unless the sentence includes a sanction under paragraph (2)( j ), ( n ), ( o ), (

q) or (

r) that exceeds two years. [ 6 ] According to the Crown, the error was technical in nature. It asks that this Court correct the sentences by making the custody and supervision order applicable to three of the charges and making a consecutive 12-month supervised probation order regarding the remaining charge. It argues that such a sentence would then engage and comply with the three-year maximum total sentence available pursuant to section 42(15) of the YCJA . [ 7 ] Section 42(15) provides: Duration of youth sentence for different offences 42(15) Subject to subsection (16), if more than one youth sentence is imposed under this

section in respect of a young person with respect to different offences, the continuous combined duration of those youth sentences shall not exceed three years, except if one of the offences is first degree murder or second degree murder within the meaning of

section 231 of the Criminal Code , in which case the continuous combined duration of those youth sentences shall not exceed ten years in the case of first degree murder, or seven years in the case of second degree murder. [ 8 ] Other than the above, the Crown maintains that the sentencing judge properly considered all of the principles and provisions of the YCJA and the circumstances of the appellants when imposing the sentence that he did. [ 9 ] For the reasons that follow, I would grant leave to appeal and allow the appeal.

While I agree with the reasons of the sentencing judge that the circumstances of this case require a lengthy period of custody and supervision followed by a period of supervised probation, I also agree that the sentences for all of the charges should be served concurrently. Pursuant to section 42(14) of the YCJA , the maximum sentence available for each single offence is two years.

Therefore, I would sentence each of the appellants to an 18-month custody and supervision order consisting of 12 months of secure custody and six months of community supervision followed by a further six months of supervised probation on each charge concurrently. Factual Background [ 10 ] The facts in this case are disturbing. Initially, the victim was contacted on Facebook by an adult, Z.M. While Z.M. lived in the same community as the victim, they had never met. By using threats, Z.M. convinced the victim to provide him with a digital image of her exposed breasts.

He then threatened to distribute the photo of her unless she provided him with additional images of her breasts and vagina, which she did. [ 11 ] The appellants, who also lived in the same community, learned about the victim through Z.M. Acting in tandem and u sing various forms of social media, they systematically broke down the victim over a period of five days. During that time they constantly communicated with the victim, enabling them to obtain sexually explicit photos from her.

They alternatively flattered and abused her, demanding more explicit images and instructing her as to what sexual acts she was to perform and digitally record. For

example, one of them directed the victim to record images of her inserting an object into her vagina. He also requested that she placemore than one finger in her vagina, so that her hymen would rupture. He urged her to “take the pain”. The other appellant made similarrequests of the victim but, in addition, asked her via social media if she would engage in sexual acts with him. The appellants also sentthe victim an image of a penis, claiming it belonged to one of them and directing her to “suck” it. [12] The sentencing judge described the contact as “intense and relentless, occurring day and night” (at para 3).

He notedthat the subsequent police investigation showed that there were thousands of lines of text communication between the parties over thefive-day period when the offences occurred. Approximately 90 per cent of that communication was sexual. [13] After having received the sexually explicit photos of the victim, including her face, breasts and vagina, the appellantsdistributed the images by social media, to people within their community, including people with whom the victim went to school. [14] Needless to say, the actions of the appellants significantly physically and psychologically affected the victim.

Shestopped eating and grooming. She could not sleep and became depressed. This behaviour caused her parents to investigate the situation,seize the victim’s multimedia device and report the matter to police. Standard of Review [15] It is well known that, absent an error in principle or a demonstrably unfit sentence, deference is to be applied whenreviewing a sentence.

An error in principle includes failing to consider a relevant factor, failing to give sufficient weight to a relevantfactor or overemphasizing an appropriate factor (see R v M (CA), (SCC), [1996] 1 SCR 500; and R v Ruizfuentes (HS),2010 MBCA 90 at para 7, 258 ManR (2d) 220). [16] Further, the same deferential standard applies to a decision of the sentencing judge to order concurrent or consecutivesentences. That is, unless the decision is clearly unreasonable, deference should be shown (see R v James (GM), 2013 MBCA 14 at para18, 288 ManR (2d) 269).

Discussion and Decision [17] Prior to sentencing the appellants, the sentencing judge had the benefit of reviewing the pre-sentence reports preparedfor each appellant. He also had the benefit of the submission of the Crown (not the same counsel as on this appeal), who asked that theappellants be sentenced to an unspecified period of custody. Finally, he had the submission of counsel for both of the appellants,(counsel for the appellant G.J.G. on this appeal) who sought a period of probation. [18] In his reasons, the sentencing judge reviewed

section 38 of the YCJA. He applied those provisions to the circumstancesof the appellants as well as the circumstances of the offence. [19] On the one hand he noted that, “both N.G. and G.G. completed grade twelve, notwithstanding the fact they are bothdescribed as being border line in terms of their intellectual functioning” (at para 17). He mentioned that they had completed communityservice work and had paid restitution that was the subject of a previous Court order.

Regarding these offences, he acknowledged that theappellants were co-operative with the police investigation and that they entered guilty pleas on their first appearance in Court. [20] On the other hand, the sentencing judge recognized that only three weeks prior to the commission of the offences forwhich they were being sentenced, the appellants received an 18-month supervised probation order (which included the order ofcommunity service work and restitution previously mentioned) for the offences of arson and mischief.

He also considered that theappellants had been convicted, as adults, of having breached the order of interim judicial release relating to the charges before him. Henoted the relative lack of remorse displayed by the appellants. Further, he mentioned that, despite their diagnosis of ADHD, theappellants refused to take the medication that had been prescribed to them.

He observed that they also refused to complete theprogramming with probation services that was ordered pursuant to their previous probation order. [21] Finally, the sentencing judge underscored the very serious nature of the charges and the lasting and significant effect ofthe offences on the victim and her family. [22] At the end of his analysis the sentencing judge concluded (at para 42): Counsel for the accused, in his submissions, emphasized the importance of the provisions of the Youth Criminal Justice Act dealingwith the reduced moral blameworthiness of young persons in general and, in particular, with respect to N.G. and G.G., due to their lowintellectual functioning.

I acknowledge these are important considerations; nevertheless, the sentence imposed must serve to protect thepublic from two individuals, who have committed serious offences and have demonstrated a refusal to comply with treatment and courtorders. I am convinced that their rehabilitation can only be achieved by the imposition of a sentence having a significant custodialcomponent followed by strict supervision in the community.

I am imposing, concurrent on all charges, a two year custody andsupervision order consisting of sixteen months of secure custody, followed by eight months of community supervision, the two yearcustody and supervision order to be followed by twelve months of supervised probation. [23] I agree with the sentencing judge up to the point where he imposed the two-year custody and supervision order.

Further, the offences for which the appellants were convicted were interrelated in time and nature and I see no error in the sentencingjudge’s determination that they should be served concurrently (see R v Munilla and Santorelli (1986), (MB CA), 38ManR (2d) 79 at para 3 (CA); and R v Traverse (

L) et al, 2008 MBCA 110 at para 47, 231 ManR (2d) 123, quoted with approval in R vWozny (CP), 2010 MBCA 115 at para 12, 262 ManR (2d) 75).

[24] Unfortunately, in his determination of the ultimate sentence, the sentencing judge was under a misapprehension that themaximum concurrent sentence available per offence was three years. He stated (at para 13):

Section 42 (subsection 14 and 15) of the Youth Criminal Justice Act provides that . . . the longest sentence that can be imposed on ayouth is two years. For multiple offences, as there are in this case, the maximum combined duration of all sentences for a youth is threeyears. [25] Based on the above, he imposed a concurrent sentence for each offence such that, once all the various sanctionsimposed were considered, totalled three years. He did this based on the fact that the appellants were charged with more than oneoffence.

As conceded by the Crown, the sentence is illegal as it offends section 42(14) of the YCJA, which provides that, incircumstances such as these, no combined sentence for a single offence can exceed two years. [26] As earlier stated, the Crown argues that the error made by the sentencing judge was merely a technical error. It asksthat this Court give effect to the sentencing judge’s intention that the appellants receive a total sentence of three years by varying eachsentence to one of two years’ custody and supervision on three of the charges, followed by a consecutive period of probation for theremaining charge.

The problem with this argument is that it runs contrary to the direction given by this Court in Wozny. [27] In Wozny, the Court stated that decisions in the sentencing process should be made in the following order (at paras 45,55): The first step a sentencing judge must take when required to sentence on multiple offences is to determine whether any or all of thesentences are to be served concurrently or consecutively. This question and the decision does not relate to the overall length of sentence.

Rather, they pertain to the nature and circumstances of the criminal activity under consideration and the connectedness of two or moreoffences to each other. Once having decided whether to impose a concurrent or consecutive sentence or a combination of both, a sentencing judge will turn toconsider duration or term of sentence, if a period of incarceration is being contemplated. [28] In this case, the sentencing judge determined that concurrent sentences were appropriate.

Therefore, the two-yearmaximum pursuant to section 42(14) applied. [29] Having determined that a combined sentence of lengthy custody as well as lengthy supervision in the community wasrequired, he proceeded to impose the maximum length of custody and supervision available pursuant to section 42(2)(

n) of the YCJA. [30] In arguing that a maximum two-year custody and supervision order is appropriate, the Crown points to jurisprudencerecognizing that, because the majority of youth sentences will attract a maximum custody and supervision order of only two years, theapplication of the maximum sentence is not limited to only the worst-case scenarios and may be applied even where a young person hasserved pre-sentence custody (see R v NWP, 2008 MBCA 101, 231 ManR (2d) 61; R v MK (1996), (ON CA), 90 OAC394 (ONCA); and R v H(A) (1991), (BC CA), 65 CCC (3d) 116 (BCCA)). [31] Counsel for the appellants argued that the limited case law available involving young persons where there existedcircumstances somewhat similar to those in this case, evidences the imposition of significantly lower dispositions.

For example, in R vTCD, 2012 ABPC 338 (QL), an 18-year-old female and a 14-year-old female both became involved with the same male. After a fallingout, the 18-year-old, with the co-operation and participation of the male, sent nude photos of the complainant by text message to otherpeople at her school. Unsurprisingly, the complainant suffered great humiliation and embarrassment. It also resulted in her beingsubject to taunting.

In sentencing the accused for the offence of criminal harassment, the Court accepted a joint recommendation for asuspended sentence of 12 months, during which the accused was placed on a period of probation. [32] In R v SB, 2014 BCPC 279 (QL), a large group of teenagers were involved in the exchange of topless photos via socialmedia. The sentencing judge observed that this was common behaviour for this group of students. However, three accused wereparticularly persistent in their attempts to obtain these images and were charged with criminal harassment.

In accepting a jointrecommendation for a conditional discharge in response to their guilty pleas, the Court noted that all of the accused were 14 years old atthe time of the offences, had no prior records and positive futures. It also observed that, “the distribution of such photos is a commonpractice amongst youth today in their attempts to learn of and struggle with their own sexuality” (at para 30). [33] In my view, the above cases are distinguishable from this one on the facts.

Further, I agree with the Crown that thelegal landscape is evolving as Courts become more aware of the dangers that this type of sexual harassment and cyber bullying invokes. The effects of victimization from such behaviour are significant, long-lasting and have even been the cause for suicide. [34] The Supreme Court of Canada commented on this in AB v Bragg Communications Inc, 2012 SCC 46, [2012] 2 SCR567. In that case, the Court considered a request for a publication ban from a young person who was attempting to sue those who hadposted her photo online with a number of sexually explicit references.

Abella J, writing on behalf of the majority, stated (at paras 20-22): It is logical to infer that children may suffer harm through cyberbullying. Such a conclusion is consistent with the psychological toxicity

of the phenomenon described in the Report of the Nova Scotia Task Force on Bullying and Cyberbullying, chaired by Prof. A. WayneMacKay, the first provincial task force focussed on online bullying: (Respectful and Responsible Relationships: There’s No App forThat: The Report of the Nova Scotia Task Force on Bullying and Cyberbullying (2012)). The Task Force was created as a result of “[a]tragic series of youth suicides” (p. 4).

The Report defined bullying as . . . behaviour that is intended to cause, or should be known to cause, fear, intimidation, humiliation, distress or other forms of harm toanother person’s body, feelings, self-esteem, reputation or property. Bullying can be direct or indirect, and can take place by written,verbal, physical or electronic means, or any other form of expression. [pp. 42-43] Its harmful consequences were described as “extensive”, including loss of self-esteem, anxiety, fear and school drop-outs (p. 4).

Moreover, victims of bullying were almost twice as likely to report that they attempted suicide compared to young people who had notbeen bullied (p. 86): See also R. v. R.(W.), 2010 ONCJ 526 , at paras. 11 and 16, and “Cyberbullying: A Growing Problem”,Science Daily (February 22, 2010, online). The Report also noted that cyberbullying can be particularly harmful because the content can be spread widely, quickly — andanonymously: . . .

The immediacy and broad reach of modern electronic technology has made bullying easier, faster, more prevalent, and crueler thanever before. . . . . . . cyberbullying follows you home and into your bedroom; you can never feel safe, it is “non-stop bullying”. . . . cyberbullying isparticularly insidious because it invades the home where children normally feel safe, and it is constant and inescapable because victimscan be reached at all times and in all places. . . .

The anonymity available to cyberbullies complicates the picture further as it removes the traditional requirement for a power imbalancebetween the bully and victim, and makes it difficult to prove the identity of the perpetrator. Anonymity allows people who might nototherwise engage in bullying behaviour the opportunity to do so with less chance of repercussion. . . . . . .

The cyber-world provides bullies with a vast unsupervised public playground . . . . [pp. 11-12] [35] In the more serious case of R v Mackie (DT), 2014 ABCA 221, 588 AR 1, the Court imposed a sentence of 11 years’imprisonment on an adult who plead guilty to 39 charges involving him assuming a fake internet identity and obtaining and distributingrevealing photos of children aged 11 to 16. In recognition of the nature of the evolving landscape and the need to protect children fromsuch behaviour, Martin JA considered earlier Court decisions that imposed lesser sentences.

He then concluded (at paras 17-18): We know better now than we did then. We have come to understand the full magnitude of the impact such crimes have on children andthat some have even resorted to suicide to find relief from online tormentors. In fact, one of the victims here reported having thoughts ofsuicide to escape the appellant. This and the other victim impact statements provided in this case are poignant reminders of the traumaand suffering caused by these crimes. Society cannot tolerate such offences and we are determined to do what we can to protect children from cyberbullying and exploitation.

In cases such as that before us, we must resort to imprisonment, emphasizing the sentencing objectives of protection, punishment anddeterrence. [36] While the justice system is coming to recognize the significant effects of such behaviour, it is also important torecognize that, like any other crime, there is a spectrum of moral culpability. [37] Contrary to the cases of TCD and SB, the moral culpability of the appellants in this case is on the high end of thatspectrum. First, there was a significant age difference between the appellants and the victim.

Second, the conduct engaged in by theappellants was not childhood exploration. It was aggressive, relentless, sexually abusive and humiliating. The images were extractedfrom the victim in a systematic manner by the appellants causing her to virtually break down. Third, the images included the victim’sface, breasts and vagina. They were distributed by way of social media to her community.

Fourth, as can be expected, the victim and herfamily continue to suffer the effects from the commission of these offences. [38] The sentencing judge was convinced that the appellants could only be rehabilitated by the imposition of a combinedsentence having a significant custodial component followed by strict supervision in the community, by way of community supervisionand then probation.

To give effect to the concurrent nature of the sentence and the two-year maximum combined sentence I wouldimpose an 18-month custody and supervision order consisting of 12 months’ of secure custody, and six months of communitysupervision, followed by six months of supervised probation to be served concurrently for each charge.

This reflects the sentencingjudge’s approach within the requirements of the YCJA as well as a proper balancing of the serious circumstances of these offences withthe restraint and balance required when sentencing a young person. [39] In the result, I would grant leave to appeal to each of the appellants and allow the appeals. I would vary each sentenceto an 18-month custody and supervision order consisting of 12 months of secure custody, and six months of community supervision.

The custody and supervision order is to be followed by six months of supervised probation. Aside from the length of time of the probation order, the conditions will remain the same as originally ordered. The sentences are to be served on all charges concurrently for each appellant. JA I agree: JA I agree: JA