Provincial Court

PROVINCIAL COURT OF NOVA SCOTIA

Citation: R. v. C.N.T., 2015 NSPC 43

Date: 2015-07-08

Docket:  2803709, 2803710, 2811757

Registry: Pictou

Between:

Her Majesty the Queen

v.

C.N.T.

CORRECTED SENTENCING DECISION

By the Court:

[1]             On 9 November 2014, C.N.T.—who was 14 years old at the time—and a friend were stopped by police in the act of rifling through unlocked cars; both were detained and searched.  Police found a smartphone on C.N.T. and inspected it to see whether it was part of the plunder; they checked the stored-images file to see if there might be any identifying content.  What they found were a number of digital images of young females, the dominant characteristic of which were depictions of their sexual organs.  Police ascertained that the smartphone belonged to C.N.T., seized it, and then sent it off to the tech crime unit in HRM where—after some delay—the onboard memory got opened up under the authority of a search warrant.  Investigators found a collage of images of young female acquaintances of C.N.T.’s—including a number depicting his girlfriend—aging in range from 14 to 16 years old, in sexually explicit poses.  These young victims were interviewed by police.  They said that C.N.T. had coaxed them to take sexualized “selfies” and send them to him.  There were other child-pornographic images found on C.N.T.’s smartphone which police were unable to identify.  C.N.T. admitted to doing this.  He also admitted to sharing some of the images with an adult, a Mr. M.  This was substantiated by text messages found by investigators that C.N.T. had exchanged with M., discussing the collection of sexualized selfies from young females known by name to C.N.T.  Another series of texts, this time between C.N.T. and one of his victims, records C.N.T. as repeatedly extorting—and I use that term in the sense of C.N.T.’s persistence—sexualized  images from the victim by telling her he would not otherwise be her boyfriend.

[2]             C.N.T. was charged with possessing child pornography; that charge proceeded indictably.  He was also charged with thefts from vehicles.  Those charges proceeded summarily.  C.N.T. entered guilty pleas to all charges.  I heard sentencing submissions from counsel on 27 May 2015; I adjourned sentencing to today for two reasons.  First, I was not satisfied that adequate inquiries had been made of the victims to determine whether they might wish to submit victim-impact statements; second, I did not believe that the common sentencing recommendation regarding the child-pornography count—an 18-month term of probation—would constitute a meaningful consequence for C.N.T.  In accordance with the court’s practice as outlined in R. v. McKenna, I allowed counsel time to submit further authorities to the court supporting the sentencing recommendation.[1]

[3]             As things turned out, the adjournment was useful, as two of C.N.T.’s victims submitted statements.

[4]             The primary question for me to address is whether the child-pornography charge is a violent offence within the context of para. 39(1)(c) of the Youth Criminal Justice Act, so as to make C.N.T. liable, at least potentially, to a custodial sentence.  Both the prosecution and defence counsel argue that it is not.

[5]              “Violent offence” is defined in section 2 of the YCJA as:

(a) an offence committed by a young person that includes as an element the causing of bodily harm;

(b) an attempt or a threat to commit an offence referred to in paragraph (a); or

(c) an offence in the commission of which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.

[6]              The equally authoritative French-language version states:

« infraction avec violence » Selon le cas :

a) infraction commise par un adolescent dont l’un des éléments constitutifs est l’infliction de lésions corporelles;

b) tentative ou menace de commettre l’infraction visée à l’alinéa a);

c) infraction commise par un adolescent au cours de la perpétration de laquelle il met en danger la vie ou la sécurité d’une autre personne en créant une probabilité marquée qu’il en résulte des lésions corporelles.

[7]             There do not appear to be any meaningful syntactical, semantic,  contextual or definitional differences between the two versions.  My analysis will refer to the English-language version of the statute.

[8]             Given that child pornography, as defined in sub-s. 163.1(1) of the Criminal Code, can include an entirely manufactured depiction (such as a caricature or cartoon)  or a written fictional narrative involving the sexualisation of persons under the age of eighteen years, without a human victim actually being ensnared, it would seem that the offence of possessing child pornography is not an offence that includes as an element the causing of bodily harm; this would exclude the application of para. 2(a) of the YCJA in this case, and, by implication para. 2(b).  That leaves para. 2(c).

[9]             It is important to note the date of these offences: 9 November 2014.  That is over a year and a half since the tragic death of Rehtaeh Parsons.  In that intervening time, this province and this country underwent a transformational shift in recognizing the vulnerability of young people—particularly females—to  trauma, psychological harm, serial victimization and predation as a result of people (including—perhaps particularly including—age peers) doing precisely what C.N.T. did to his victims.  Legislative action was swift.  Protecting Canadians from Online Crime Act criminalized the non-consensual sharing of intimate photos.[2]  Nova Scotia enacted the Cyber-Safety Act, permitting the issuance of protection orders to stop cyberbullying.[3]

[10]        As in A.B. (Litigation Guardian of) v. Bragg Communications Inc.[4] (a case which dealt with an application to ban the publication of the identity of a minor plaintiff in an action arising from an incident of cyberbullying) I find it useful to make reference to reputable social-science research.

[11]        “Sexting”—the term used commonly to describe sexual photo sharing, typically by means of smartphones[5]—almost inevitably inflicts serious harm upon young people who are coaxed or intimidated or enticed into performing it. Sexting is indelible: once an intimate image is transmitted, even if to one recipient only, its digital footprint is embedded in binary cement.  Very recent meta-analytical research suggests that those who are enticed or coerced into sexting end up experiencing symptoms of anxiety depression and generalised trauma.  This can arise from violence within intimate-partner relationships, or because of peer or cadre pressure [6]  Even if notionally “consensual”, it is generally unwanted by the victim whose images are solicited.  It is accompanied often by physical and psychological coercion.  Sexting evolves frequently into a pattern of escalating risk-taking behaviour.  Adolescent females are the typical victims.  Victims frequently have psycho-social biographies involving vulnerabilities that make them susceptible to being pressured into sexting.  Finally, young people who are coaxed or coerced into sexting typically do not experience or recognize the harmful effects of their exposure until long after the fact.

[12]        In my view, it is a faulty analysis that asserts that C.N.T.’s conduct was not violent simply because there is no evidence before the court that anyone suffered psychological harm.

[13]        As the prosecution acknowledged, the term “bodily harm” in para. 2(c) of the YCJA  was defined authoritatively in R. v. D. (C.) as encompassing psychological harm.[7]

[14]        Although there were only two victim-impact statements submitted to the court, it was clear to me that the canvassing of victim impact by the prosecution was approached almost as an afterthought, rather than as the very high priority it ought to have been.  Nevertheless, even those brief narratives describe poignantly the shame, regret and anxiety which these two young people are—and will be—forced to endure because of the actions of C.N.T.  As for the others, I am confident that I am able—both legally and as an exercise of common sense—to  infer the existence of serious psychological victim impact.[8]  Furthermore, in my view, it is immaterial that the full impact of this crime might not be felt by the victims until sometime in the future; inevitable prospective harm may render an act violent, much as planting a time bomb doesn’t hurt anybody right away.  Offences of this nature are, yes, psychological time bombs, and no one who commits this sort of crime can claim ignorance.  The dangers inherent in cyberbullying, cyberstalking, sexting, revenge porn and other similar offences against the person are discoursed widely on the internet, in school curricula, the media, youth-oriented community groups, social-service agencies, and within family homes. 

[15]        Accordingly, there is no doubt in my mind that what C.N.T. did was a crime of violence. 

[16]        What, then, would be a meaningful consequence.  The prosecution suggests that, as C.N.T. is a young person, the objectives of sentencing are different to those implicated in cases involving adults.  I do not agree with that proposition.  While the ordinal priorities might be different, s. 38 of the YCJA lays out most of the same sentencing principles courts apply when dealing with adults: and so it is that accountability, parity, proportionality, denunciation, deterrence and restraint—all of which are integral to the imposition of just sanctions that have meaningful consequences for young persons—are essential features in all sentencing hearings.

[17]        Taking into account all of those factors, and taking into account the prevalence of this particular type of crime in this community, I am of the view that a purely community based sentence, while certainly rehabilitative, would not effectively deter the scourge of this type of crime.  A period of custody is necessary.  It is the only option which I see as meaningful, because this was a serious crime with serious impact upon the victims, and C.N.T. alone is responsible for it.

[18]        However, given the fact that C.N.T. pleaded guilty to the s. 163.1 charge, does not have a prior record, appears to have great insight into the harm that he caused, and has a very loving family that will support his counselling efforts, I am of the view that a period of six months of deferred custody would be appropriate for that count.  There will be a period of probation of twelve months to follow the deferred-custody term, and that will apply to the two theft charges as well.  These orders will include appropriate counselling conditions, as well as restrictions upon C.N.T.’s ability to access the internet.  The court will order forfeiture of C.M.T.’s smartphone pursuant to s. 164.2 of the Code; the s. 163.1 count is a primary-designated offence as defined in s. 487.04 of the Code, and a DNA-collection order is granted by the court.  Finally, as the s. 163.1 offence would fall under the provisions of s. 109 of the Code, the court shall issue a s. 51(2) YCJA prohibition order to run for five years.

[19]        I feel it necessary to comment on the procedural delays that arose in hearing this case.

[20]        C.N.T. and his friend were arrested while breaking into cars on 9 November 2014.  I can conclude only that C.N.T. must have been released unconditionally, as he was brought to court in custody on 10 December 2014; the local Crown attorney who appeared on that date was acting on instructions from Mr. Dostal; those instructions did not include specifying mode of election; nor did it include delivery of disclosure, as none was available.  C.N.T. was released on an undertaking with a return-to-court date of 18 February 2015.  On that date, a local Crown attorney appeared again for Mr. Dostal.  The prosecutor did not have instructions on election, and disclosure was still not available.  The case was adjourned to 1 April 2015, one of Mr. Dostal’s available dates.  On 1 April, Mr. Dostal appeared, elected to proceed indictably; C.N.T. pleaded guilty; the court ordered the preparation of a presentence report, and sentencing was adjourned to 13 May 2015.

[21]        On 13 May 2015, the court heard a statement of facts, and recorded a finding of guilt on the sub-s. 163.1(4) count in accordance with s. 36 of the YCJA.  I was advised by court staff that no victim-impact statements had been filed.  Mr. Dostal informed me that the investigator had made some inquiries that morning, and did not believe that anyone wished to file a statement.  I was not satisfied that day-of canvassing of this integral part of the sentencing process was enough, and adjourned sentencing to 27 May 2015 to allow proper inquiries to be made.  As things turned out, two of C.M.T.’s victims filed statements, and I referred to them earlier in my judgment.  After I heard argument on 27 May 2015, I adjourned my decision to today, to allow counsel time to make further submissions.

[22]        Something went very wrong here.  First of all, it was almost four months after the charge was laid before the court had a member of the Nova Scotia Public Prosecution Service in court able to deal effectively with the case.  This would amount to a passage of 143 days from the date C.N.T. was first arrested on 9 November 2014 until Mr. Dostal’s appearance on 1 April 2015, and 112 days from C.N.T.’s first appearance in court until Mr. Dostal’s first appearance.  This does not comply with the timelines recommended in the Nunn Commission of Inquiry.[9]  First off, a youth is supposed to appear in court within a week of the commission of a serious offence; in this case, it took just over a month.  Secondly, as just noted, it took 112 days just to get Mr. Dostal into court.  The target case processing time for young persons in this province is 97 days: the court, the PPS and every policing service in Nova Scotia has made a commitment to achieving this target; it was not met in this case.

[23]        I know that Mr. Dostal is very busy, and I do not mean to single him out; however, it seems that those responsible at the Public Prosecution Service for tasking assignments and dealing with personnel resourcing need to review whether additional staffing might be required to allow the PPS to fulfil its commitment to comply with the recommendations of the Nunn Commission of Inquiry.

[24]        The second concern I have has to do with making disclosure available to a person charged with an offence on a timely basis.  Here, over two months after he had been brought into court, C.N.T. was still awaiting disclosure to which he had been entitled constitutionally upon being charged.  Although the reason for this delay was not explained to the court, I do have some insight into it, having stayed s. 164.1 charges back in 2012 due to a year’s delay in providing an accused with disclosure.  The case was R. v. MacDonald.[10]  Mr. MacDonald ran a photography business.  He was suspected of accessing child-pornography through an online file-sharing service.  Police arrested Mr. MacDonald; they seized an array of computer equipment—much of which Mr. MacDonald used in his business—and sent it to a facility in Burnside to be analyzed to retrieve, recover and identify illegal images.  A year passed, and no disclosure had been given to Mr. MacDonald.  It was only with an ultimatum from the prosecutor to deliver the disclosure or the charges would be dropped that the investigative agency doing the high-tech work got around to Mr. MacDonald’s equipment.  On the hearing of an unreasonable-delay application brought by counsel for Mr. MacDonald, I was informed that there was a bit of a history to the practice of laying charges first in cases involving s. 164.1 offences, and then looking later to see whether the evidence might really exist to support the charging decision.  It appears to have been the case that, on one occasion, police had carried out a possession-of-child-pornography investigation that involved the seizure of computer equipment from a school employee somewhere in the western part of this Province.  Prior to technical-crime experts being able to check whether illegal images were, in fact, stored within the seized equipment, the pendency of the investigation and the fact that the suspect was a school-board employee came to the attention of the media.  There was some degree of adverse comment, which resulted in a minister of the Nova Scotia executive—but who, I was informed, was not the attorney general—making known the view that charges in such cases ought to be laid right away, thus allowing for conditional release or bail denial, and that practice became the norm in child-pornography cases.

[25]        To be sure, law enforcement must not take chances with the welfare of children; however, there are basic legal principles which underlie the proposition that charges not be laid until there is evidence in hand supporting them.  Laying charges without evidence would seem to defy the requirement that an informant swearing an information have sufficient grounds for belief in the commission of an offence.  If an investigation has only just begun, with police in possession of  an inventory of seized material needing time to get picked through, they laying of charges before ascertaining the existence of material and relevant evidence would seem preposterous—and I use that term in the etymological sense of putting “pre” what should be “post”.  If evidence to support a charge remains to be located, there are remedies under s. 810.1 and the like which might be sought to address in the interim concerns over public safety.

[26]        Finally, there is the matter of victim-impact statements.  This proceeding is not governed by the Victims Bill of Rights Act,[11] as it is not yet in force; however, the Act simply codifies in statute what ought to be done prudently so that persons who are victims of crime might have confidence in the administration of justice.  The simple fact is that it should not require reference to legislation to know that canvassing for victim-impact evidence on the day of sentencing is likely not enough to get it before the court on time.  If a victim-service referral were to be made by police or the prosecution right at the outset of a proceeding whenever there might be an identifiable victim of a crime, confidence in the administration of criminal justice in the province would be bolstered, of that I have no doubt.  The VBRA will make mandatory what is, regrettably, often relegated to the back burner.  Back about thirty years ago, an article appeared in the Nova Scotia Law News referring to sentencing as the neglected second stage of the trial process.  That forensic outlook bedevils us today.  The fact is that a sentencing hearing, much as the controversial trial of criminal liability, requires high standards of proof; that much is made clear in ss. 723 and 724 of the Code.  The guilty plea or the guilty verdict is not the finish line.  As much effort must be directed by counsel to the sentencing stage as to the trial stage; that includes doing as much as is reasonably possible to ensure the meaningful participation of victims in the sentencing process.

          JPC