R. v. N.K.R.B., 2020 BCPC 223 (CanLII)
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2020 BCPC 223 |
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Date: |
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File No: |
21774‑1‑K |
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Registry: |
Western Communities |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
N.K.R.B.
BAN ON PUBLICATION – SECTION 486.5 (1) C.C.C.
REASONS FOR SENTENCE
OF THE
HONOURABLE JUDGE T. GOUGE
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M. Feldthusen |
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Counsel for the Accused: |
P. Blokmanis |
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Colwood, B.C. |
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Date of Hearing: |
November 2, 2020 |
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Date of Sentence: |
November 23, 2020 |
The Issue
[1] Mr. B has entered a guilty plea to one count of publishing an intimate image of his ex-wife, contrary to s. 162.1 of the Criminal Code. Mr. Feldthusen, for the Crown, seeks a sentence of 45 to 90 days’ jail. Mr. Blokmanis, for Mr. B., seeks a conditional discharge.
[2] Counsel agree that a term of one year’s probation would be appropriate.
[3] The Crown does not seek any ancillary orders.
The Offence
[4] In 2011, while Mr. and Ms. B were on the honeymoon, Mr. B took a number of intimate photographs off Ms. B with her consent. In 2012, Ms. B asked Mr. B to delete them from his electronic storage and he told her that he had done so. That statement was false.
[5] After Mr. and Ms. B separated, in 2018, she entered into a new intimate relationship with Mr. S.
[6] Mr. S posted an advertisement on the internet, offering his services to the public. Mr. B posted several negative comments about Mr. S on the internet and an on-line argument between the two men ensued. During the course of the argument, Mr. B referred to Mr. S’ weight. He is, apparently, corpulent. Mr. S replied:
You’re just jealous because a fat guy is porking your ex-wife.
Mr. B responded by sending Mr. S a photograph of Ms. B performing an act of fellatio on Mr. B, with the comment:
How does my dick taste?
[7] Ms. B’s face was clearly visible in the photograph, in such a way that anyone who knew her would recognize her.
[8] Mr. S showed the photograph to Ms. B, who complained to the police. When interviewed by the police, Mr. B immediately admitted that he had sent the photograph, apologized and deleted the photograph from his electronic storage. He entered his guilty plea at the first opportunity after the Information was sworn.
The Offender
[9] Mr. B is 37 years of age. He has no criminal record.
[10] His childhood was unremarkable. He graduated high school, and is now self-employed as a landscaper. He uses a prescription anti-depressant and consumes alcohol and cannabis in moderation. He reports that, on the evening of his offence, he had consumed four or more beers, which he regards as a contributing factor to his offending behaviour.
[11] He and Ms. B have two children, now ages four and six.
[12] Since the date of his offence, Mr. B has been attending counselling. His counsellor describes him as “eager to get support” and “gain insight”. He has expressed remorse to his counsellor.
[13] Mr. B was released on bail immediately after his arrest, and has been subject to bail conditions for 13 months. His bail supervisor reports that he has been compliant with his bail conditions. He has been seeing a clinical counsellor since mid-August. She reports:
[Mr. B] has attended four sessions with me where he expressed great remorse for his actions …. It is my opinion that [Mr. B] is truly sorry for what he has done and that this is something that is very out of character for him.
[14] When he exercised his right to speak at the sentencing hearing, Mr. B took responsibility for his offence and repeated his apology to Ms. B. I accept the sincerity of those remarks. However, I observe that many of his comments were directed to his own situation and his desire to “put this incident behind” him. I fear that he does not fully appreciate the impact of his offence upon the victim.
Victim Impacts
[15] Ms. B is an [omitted for publication] school teacher. She is concerned about the impact upon her career if the existence of the images becomes known. That concern is exacerbated by the fact that Mr. B lied to her about the deletion of the images in 2012.
[16] Ms. B also reports that her ability to participate fully in new intimate relationships has been adversely affected by this incident. As she puts it:
If my husband, who promised to love and care for me, can do this a year after our separation, what is anyone else capable of?
[17] She has missed a number of days of work as a result of the psychological trauma flowing from this incident. When she has used up all of her medical leave days, she will not be paid for future absences.
[18] She wishes to be assured that she will receive no future communications from Mr. B, except as may be necessary to co-parent their children, and that Mr. B will be prevented from publishing future adverse comments about her.
The Jurisprudence
[19] Counsel referred me to the following authorities:
1) R. v. Haines-Matthews, 2018 BCPC 264;
2) R. v. Greene, 2018 NLPC 1318;
3) R. v. J.B., 2018 ONSC 4726;
4) R. v. J.S., 2019 ABPC 134;
5) R. v. M.T.B., 2019 BCPC 77; and
6) R. .v A.B., 2020 QCCQ 260.
[20] The table of previous authorities which is provided as an appendix to R. v. A.B. is particularly helpful.
[21] The range of sentences is from a conditional discharge to 18 months’ jail. Suspended and conditional sentences have been imposed in some cases. Some of the factors to be considered in placing a particular case within the range are:
a.) whether the victim consented to the creation of the image when it was made;
b.) whether the victim is recognizable in the image;
c.) whether the image was distributed to a wide audience (most egregiously, by posting it on the internet); and
d.) the nature of the activity depicted in the image.
[22] In this case, Ms. B consented to the creation of the image. However, that factor is very much attenuated in this case by the fact that she asked Mr. B to delete the image in 2012 and he told her, falsely, that he had done so. I consider this case to be comparable to a case in which the victim had never consented to the creation of the image.
[23] Ms. B’s face is clearly visible and recognizable in the image.
[24] The image was distributed to one individual only. However, that factor is attenuated by the method of distribution. By sending an electronic copy to Mr. S, Mr. B created the risk that Mr. S might further distribute it, which he could have done by a single keystroke.
[25] The nature of the image is extremely intimate.
[26] Mr. Blokmanis points out that Mr. B was intoxicated at the time of publication, and that he had been provoked by Mr. S. The impact of self-induced intoxication on moral blameworthiness, and hence on sentencing, is a complex subject: R. v. B.M.W., 2020 BCPC 9. Provocation may have a similar impact, but is less significant when the provocateur is not the victim. In this case, I think that both alcohol and provocation were significant factors which contributed to Mr. B’s decision to offend. In that regard, his conduct is less blameworthy than that in, for example, R. v. J.S., 2018 ONCJ 82, where the publication was clearly part of a deliberate plan, carried out over a period to time, to humiliate the victim.
[27] I am mindful that Mr. B immediately took responsibility when confronted by the police, and that, so far as is known, he has deleted all of the intimate images of Ms. B, and I take into account his very early guilty plea.
[28] I think that a fit sentence in this case is a 180 day conditional sentence, followed by one year’s probation.
[29] The terms of the conditional sentence will be as follows. Mr. B. must:
a.) keep the peace and be of good behaviour;
b.) attend court when required to do so by the court;
c.) report by telephone to a conditional sentence supervisor at 250-391-2850 no later than noon on November 24, 2020 and report thereafter as and when directed by his supervisor;
d.) remain within the jurisdiction of the court (i.e. British Columbia) unless written permission to go outside British Columbia is obtained from the court or from his supervisor;
e.) notify the court or his supervisor in advance of any change of name or address and promptly notify the court or his supervisor of any change of employment or occupation;
f.) provide his supervisor with his residential address and telephone number, and not change either of those without first notifying his supervisor;
g.) maintain a curfew between the hours of 7:30 p.m. and 6 a.m. daily, and remain within his residence during those hours unless he has the written permission of his supervisor to be outside his residence;
h.) in order to confirm his presence with his residence during curfew hours, present himself at the front door of his residence within five minutes of any peace officer knocking and making his presence known;
i.) have no contact or communication, directly or indirectly, with Ms. B except:
i.) through legal counsel;
ii.) by text or email, but only on subjects relating to the care or parenting of their children;
iii.) by engaging the assistance of a third party for the purpose of serving Ms. B with an application under the Family Law Act SBC 2011, c. 25 and affidavits in support of that application;
iv.) while attending court on such an application; or
v.) as permitted by a family court order pronounced after the date of this decision;
j.) not approach within 20 metres of the person of Ms. B except within the precincts of the Western Communities Courthouse at Colwood, British Columbia;
k.) not possess or consume any alcohol, cannabis or cannabis derivatives;
l.) not possess or consume any controlled substance, as defined by the Controlled Drugs and Substances Act, except with a valid medical prescription;
m.) attend, participate in and successfully complete any counselling program to which he is referred by his supervisor; and
n.) perform 60 hours of community work service, at the direction and to the satisfaction of his supervisor.
[30] The terms of the probation order will be the same as those of the conditional sentence order, except:
a.) substitute “probation officer” for “supervisor” throughout;
b.) replace “c” with the following:
“report by telephone to a probation officer at 250-391-2850 within 72 hours of the expiry of your conditional sentence”;
c.) omit conditions “d”, “e”, “g”, and “h”; and
d.) substitute “120 hours” for “60 hours” in condition “n”.
_____________________________
The Honourable Judge T. Gouge
Provincial Court of British Columbia