SELECTED CASE LAW
NOVA SCOTIA:
2015 NSPC 43
In 2015 NSPC 43, a smartphone containing a number of sexualized digital images of young females (14-16 years old) was obtained from a 14-year old boy (CNT) who was stopped by police for an unrelated offence. Police interviewed some of the identifiable girls, who claimed that the boy had coaxed them into taking sexualized selfies to send to him. CNT admitted sharing some of the photos with an adult. He was charged and pleaded guilty to possessing child pornography.
The Crown and defence counsel jointly submitted that 18-months probation was the appropriate sentence. The trial judge expressed concern about whether the jointly proposed sentence would constitute a meaningful consequence for CNT. Under the Youth Criminal Justice Act, (YCJA) a custodial sentence was precluded unless CNT’s crime could be considered a “violent offence”. Noting that under the YCJA a “violent offence” included an offence giving rise to “bodily harm”, which the Supreme Court of Canada had previously held to include psychological harm, the trial judge concluded that CNT’s offence was a “violent offence”. In this regard, the trial judge noted:
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 generalized trauma. This can arise from violence within intimate-partner relationships, or because of peer or cadre pressure.
Thus, the trial judge found that CNT’s actions constituted “psychological time-bombs” with inevitable prospective harm because even if the victim doesn’t experience the harm in the present, the non-consensual distribution may come back to harm them in future. As such, the trial judge concluded that a period of custody was necessary and imposed 6-months deferred custody, followed by a 12-month period of probation, with counseling conditions, restrictions on internet access, forfeiture of CNT’s smartphone and a requirement to provide a DNA sample. This decision, however was appealed to the Nova Scotia Court of Appeal in 2016 NSCA 35.
On the appeal, CNT (now referred to as BMS) claimed that the trial judge erred in law in: (a) presuming the existence of psychological harm of the victims; (b) determining the offence to be a violent one; (c) failing to distinguish the differences in sentencing principles for youth and adults; and (d) imposing an excessive and overly harsh sentence.
The Court determined that the trial judge erred in using a combination of social science articles and victim impact reports, without notice or proper foundation, to decide on the contentious issue of whether serious psychological harm had been occasioned by possession of child pornography in this case. The Court asserted that the judge’s inappropriate use of this research and reliance on general deterrence rather than youth-specific sentencing structures materially affected the sentence of the appellant. Thus, BMS’s appeal was successful and his sentence was reduced to 18-months probation on the same terms and conditions ordered by the trial judge (although he had already served 6-months deferred custody).
Criminal Offence(s): Child Pornography Offences