Young Man Sentenced For Criminal Harassment For 'Sexting'

On September 7, 2016, the Ontario Court of Justice ("ONCJ")1 imposed a suspended sentence on a young man charged with criminal harassment, contrary to section 264 of the Criminal Code of Canada (the "Code"), after he posted nude and semi-nude images of his underage girlfriend to a public pornographic website without her consent.

Facts

Botong Zhou became romantically involved with a young woman (the "Complainant") when she was 14 and he was 16. At Mr. Zhou's request, the Complainant took sexually explicit photos of herself and posted them on a private website that only she and Mr. Zhou had access to. After posting the photos to the private website, the Complainant discovered that 10 of her nude and semi-nude photos were posted to a public pornographic website and had been viewed over 1,300 times over a span of two years. Underneath the photos, Mr. Zhou asked viewers to "rate" the Complainant and describe what they would "do to her".

Mr. Zhou's actions had detrimental consequences for the Complainant. She eventually became depressed, anxious and terrified over knowing that 1,300 people had seen her photos and feared that these images would reappear and affect her future.

As a result of his actions, Mr. Zhou was charged with possessing, accessing, and distributing child pornography. However, at the time of sentencing, the child pornography charges were dropped and Mr. Zhou pled guilty to one count of criminal harassment contrary to section 264 of the Code . It provides:

264(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.2

Ontario Court of Justice Decision

At the time of sentencing, the Crown submitted that a suspended sentence with 12 months of probation would be appropriate, while Mr. Zhou sought an absolute discharge.

In determining an appropriate sentence for Mr. Zhou, the Court stressed the heightened public awareness over the prevalence of the non-consensual distribution of intimate images, recently coined "sexting". Particularly, in response to the current "sexting" phenomenon, the federal government created a new criminal offence, under section 162.1, specifically targeting this type of behaviour. Although the new section 162.1 came into force in March 2015...