WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended;
Between:
Her Majesty the Queen
— AND —
A.R.-T., a young person
Before: Justice P. Robertson
Heard on: August 23, October 24 and November 2, 2016
Reasons for Judgment released on: November 3, 2016
Counsel:
- K. Rogozinski — counsel for the Crown
- B. Irvine — counsel for the accused A.R.-T.
ROBERTSON, J.:
Introduction
1A.R., a young person under the Youth Criminal Justice Act (YCJA) pleaded guilty before me to procuring a person under the age of 18 years to provide sexual services for consideration, contrary to s. 286.3(2) of the Criminal Code.
2The following are my reasons for sentence.
The Offence
3In October of 2015, A.R. contacted H.K. (hereafter referred to as H) through Facebook as they had friends in common.
4A.R. told H that they could work together and make money. She told H, A.R.'s boyfriend, K, was also involved. A.R. was aware H was at the time 13 years old. She actually was 12 and turned 13 during the continuing offence.
5A.R. arranged for H to meet at a location instructing her to bring lots of sexy underwear and a bra as well as a Halloween costume because she could make more money.
6Within a few days, H left her family home and met up with the accused.
7The next day the accused took H to meet K. While there, H was told she would be working in the sex trade and that the group would be going to Niagara Falls to provide sexual services to prospective clients. It is agreed that K was the directing mind of the organization.
8The following day, A.R., H, K and another male drove to Niagara Falls where K rented two rooms at the Comfort Inn Fallsview. One room was for H to provide sexual services to clients for money, the other for the group to relax.
9Both K and A.R. told H she was going to provide sexual services. When she protested, both K and A.R. threatened her with harm.
10K took nude photos of H. Using the pictures he posted advertisements for sexual services on Backpage, a website where sex trade workers advertise their services to prospective customers.
11The following day the group moved to a second hotel in Niagara Falls, the Universal Inn and Suites. Again K took nude photos of H which he posted along with an advertisement on Backpage.
12H was told to answer many of the calls and texts by prospective customers and taught how to speak to the clients.
13A few days later the parties drove back to Toronto to K's home where he took more photos of H alone, as well as H with A.R. and other unknown females.
14During this time in Toronto, H was required to continue to provide sexual services. In one case, K arranged an outcall (where H would attend at a remote location) and as pre-arranged with the customer, she would agree to anal intercourse. K accompanied by A.R. and H, picked up the customer and attended a local motel. K rented a room to facilitate H and the customer to engage in sex. Although the customer attempted anal intercourse, H could not do so as it caused her injury.
15K and A.R. on another occasion drove H to a location in Scarborough to provide sexual services. At this location K and A.R. got into an argument resulting in A.R. being assaulted. After seeing this, H became concerned for her safety.
16In early November, 10 days after engaging in the sex trade, H provided sexual services to a customer by permitting the customer to attend at K's residence. A.R. got mad at H for not following her instructions to wait for permission before permitting a prospective customer from attending at the home. After providing the sexual service, H left the residence and called her mother. H spoke to a neighbour who contacted police.
17A search warrant was executed at the residence. K and A.R. were arrested. H's clothes were seized including four pairs of her underwear. Semen was detected by the Centre of Forensic Sciences on all pairs.
The Offender
18A.R. is now 18 years old. She was 17 years old at the time.
19A.R. has a youth record including convictions:
- in May 2016 for assault, theft under and fail to appear x 2 for which she received a sentence of 12 months probation;
- in February 2016 for robbery for which she received a sentence of 15 months probation following 52 days pre-trial custody; and
- in November 2014 for robbery, assault and fail to appear for which she received a sentence of 8 months probation following 63 days in pre-trial custody.
20A.R. was born in Toronto and resided with her parents until age 8 when her parents separated. She continued to reside with her mother, Ms. T. and her maternal grandmother.
21A.R. describes her relationship with her mother and mother's partner as positive, as she does in regard to her father. She has however hidden this offence and her previous involvement with the justice system from him, which is indicative of her having little contact with him.
22In preparation for sentencing, I ordered both a pre-sentence report and a section 34 assessment. Both documents are very thorough, complete and provide a very detailed history and present assessment of A.R.
23I am not going to go into great detail as to the contents of those documents. It is a fair assessment however that they do not paint a very optimistic picture of A.R.'s future given her protracted past negative behaviour and her present lack of insight or remorse. Despite attempts to address many underlying issues during her pre-trial detention at Syl Apps, engagement in treatment programming has been minimal. A.R's oppositional behaviour continued throughout her incarceration resulting in 17 incident reports, including 6 serious occurrence reports resulting in at least one criminal charge of assault which is still before the courts. A. blames others for her behaviour, finding staff as bias or unfair and justifying her assaultive behaviour as an appropriate or justified response to an offensive comment.
24During her incarceration at Syl Apps, A.R. has been the subject of numerous tests and assessments, both empirically validated criminogenic risk/need measures as well as structured clinical assessments.
25The overall conclusion of both testing and assessments and clinical interviews is A. is high risk for reoffending and for ongoing behavioural difficulties. She is not ready to engage in any treatment. She does not want to change and does not feel ashamed, angry, guilty, regretful, nor upset about her offences. She does not have any remorse.
26A. endorses problematic antisocial attitudes such as pride in her delinquent behaviours. She has an inability to take responsibility for her actions and has no remorse or empathy for past behaviours or their impact on her victims. She feels entitled and proud and boastful of her aggressive or manipulative behaviours. She considers herself a good person and does not need to change.
27In regard to the present offence, when questioned about her actions or the victim's feelings she stated she"didn't care" and that she was simply following along with her boyfriend's directive. She denied however that she was in anyway coerced by her boyfriend to participate in the sex trade.
28In addition to the persistent negative oppositional behaviour that has been the hallmark of A.R.'s attitude and interaction with school officials and other students starting as early as grade 3, A. has a number of intellectual/psychological deficits and also most likely has a number of learning disabilities that have been purposely ignored in large part because her mother was afraid of the "labelling" of A.
29As early as grade 3 if not earlier, A. displayed difficulties with social interactions, working with others, conflict resolution, self-control and impulse control. She frequently was engaged in fighting and in bullying. She continues today to resort to fists to settle conflicts. During school she had difficulties following rules and routines, maintaining attention, staying on task and completing her work. She was distractible, defiant and disruptive. Her psychoeducational assessment noted significant concerns consistent with ADHD.
30By grade 7 A. was referred to a behavioural team. She was in need of constant support to manage her behaviours. Numerous referrals were made to social work services but none followed through with. Ms. T. refused one referral and in regard to another, claimed that she would be able to handle the situation at home.
31On any fair read of both the PSR and the s. 34 assessment, it is clear A. has been allowed to pretty much do whatever she wanted to do at home. Ms. T. admitted A. was raised with no real consequences for her actions. Any consequences for violating rules would often be abandoned upon A. convincing her mother she should be permitted out, including convincing her mother to take her to a party despite being under bail conditions akin to house arrest. Ms. T. admits A. can be manipulative, a characteristic also identified by staff at Syl Apps.
32Ms. T.'s refusal to allow A. to engage in testing, assessments and counselling for ADHD symptoms and her related oppositional behaviour was out of concern A. would be labelled and suffer related consequences. Unfortunately, her refusal to co-operate with school officials was not replaced by pursuing counselling through different channels. She attributed A's behaviours to boredom, defiance and poor judgment.
33Ms. T. appears to have underestimated, or been willfully blind to the seriousness of A.'s very early behaviour issues, reporting that it was not until age 15 that she began to notice more significant behavioural concerns such as getting into many fights at school. This is inconsistent with a well documented school history of problematic behaviour starting in grade 3.
34By age 15, with greater freedom in the community, A was demonstrating further symptoms and behaviours consistent with ADHD, including risk taking, stimulation-seeking behaviours, emotion dysregulation, social concerns, poor decision-making and impulse control issues. By this point, A. was frequently running away from home often for days at a time. Despite attempts to control this behaviour it persisted. Her behaviour was out of control. Ms. T. presumes this behaviour was related to wanting to spend time with a boy. I do not accept that as a total explanation.
35In regard to the present offence, Ms. T. believes A.'s behaviour is related to being again, under the "control of a boy." A. doesn't see it that way. A. does not believe she was coerced by her boyfriend to enter the sex trade. I note it was she who procured the victim and introduced her to her boyfriend. A. readily admits that she knows many people who break the law but when asked as to whether her friends are a negative influence on her, she responds that she is the one who does the influencing. While at Syl Apps, staff reported A. presents as "top dog", a person with a "big voice". She has a leadership presence and has many other of the girls/inmates clustered around her as "minions."
36A. does have some goals. She does not want to get arrested again. She would like to finish school and on a positive note would like to continue to see her service providers from the Elizabeth Fry Society (EFS) and Central Toronto Youth Services (CTYS). She plans to return home to live with her mother although only so long as it is necessary for her to arrange her own accommodations.
Position of the Parties
37The parties initially submitted to me a joint position on sentence for a discharge crediting 8 months of pre-sentence custody at a rate of 1.5 to 1 for a total of 12 months, to be followed by 2 years of probation on terms. The terms jointly recommended include non-association with her co-accused and the victim, a prohibition from accessing Facebook, a requirement to attend school or seek employment and to take counselling by her probation officer for "personality, behaviours and/or substance abuse."
38I asked both crown and defence counsel for case law supporting their position and adjourned the sentencing hearing to allow them to provide relevant material supporting their position and to make further submissions as to the appropriateness of their joint recommendation.
39Upon readdressing this matter, I was advised that the parties had subsequently determined that their proposed sentence was illegal and that the maximum sentence available under the YCJA was one of two, not three years. To conform with the Act, the parties now request that A.'s probation period be reduced to one year.
40Crown counsel provided me the case of R. v. J.L. [2016] O.J. 5131, a decision of this Court. The case addresses the applicable principles of the YCJA when sentencing for an offence of procuring a person under 18, but is of limited value in this case given the very different facts – a first offender, who was extremely remorseful, had remained out of trouble for 14 months while under strict bail conditions and who had seriously engaged in rehabilitative steps. He also had a realistic plan for future advancement. In that case the court imposed a 6 month deferred custody and supervision order.
41Mr. Irvine referred me to the Supreme Court of Canada's recent judgment of R. v. Anthony-Cooke, 2016 SCC 43, a judgment on the appropriate test for the acceptance of joint submissions and the procedure to be followed if the sentencing judge is contemplating departing from the proposed resolution. The Supreme Court largely adopted the test, and in part the procedure, that has been the law in Ontario for the past 15 years – first set out in part by the Court of Appeal in R. v. Dorsey (1999), 123 O.A.C. 342 and readdressed by that Court in R. v. Cerasuolo, [2001] O.J. 359.
42The test set out by the Supreme Court of Canada is that joint submissions should be respected unless the trial judge believes that the proposed sentence would either bring the administration of justice into disrepute or is otherwise contrary to the public interest.
43In addition to the further case law, I sought and received further submissions from both counsel as to the appropriateness of the proposed sentence. I specifically raised the issue of discharge versus probation and the concern that in order to satisfy the applicable principles of sentencing of the YCJA, including the principle in s. 38(2)(e)(ii), to impose a sentence that is the one most likely to rehabilitate and reintegrate the young person into society, that the longest period of probation is warranted in the case of this young person.
44Ms. Rogozinski submits that a discharge as opposed to probation is appropriate as it accounts for time spent in custody which exceeds that warranted for this offence. A. has been incarcerated in Syl Apps for 12 months. Two months of time was used towards the accused's sentence for robbery, imposed while in custody on the present charges. The joint submission is for 8 months of time, credited at a rate of 1.5 to 1, as being appropriate for this offence, leaving two months remaining of real time 'unused'. It is this time that Ms. Rogozinski submits justifies the imposition of a discharge.
45Ms. Rogozinski also submits that the stigma of a youth record continues during the access period to youth records and should I impose probation, as opposed to a discharge, the access period and associated stigma will be extended a further 6 months; from May 5, 2022 to November 2, 2022. She submits this also justifies the imposition of the discharge.
46Ms. Rogozinski submits the overall joint position is further informed by the fact A. was also a victim of a domestic assault at the hands of her boyfriend during the prostitution. I accept A. was both a victim and an accused in the prostitution enterprise and that she followed the directives of her boyfriend who was the operating mind behind the enterprise. There is nothing 'domestic' however about any assault on A. by her 'pimp boyfriend". Beatings by pimps are a routine aspect of those they prey on. It is for control. The fact they often say and even convince the girls they also love them or care for them, is just part of the insidious world of filth in which the parasitic pimp operates.
47Mr. Irvine also reminds me that A. is also a victim as well as an accused in the overall prostitution enterprise. I accept that.
48He also submits mitigation should be given to A. as she will be a witness in her boyfriend's trial. That may be proposed however her degree of co-operation is far from certain.
49Both counsel concede the s. 34 assessment and the pre-sentence report are very thorough and negative. They also agree the longest possible period of probation is appropriate in this case given the multiple issues that A. needs to address and her present reluctance to engage in counselling and therapeutic programming.
Aggravating Factors
50Many are outlined in detail above. I will therefore just list them:
(a) The victim was only 12-13 years old
(b) A. threatened violence to achieve the victim's compliance
(c) The ordeal was over 10 days
(d) The victim was required to engaged in sexual acts with adult males including attempted anal intercourse
(e) The callous indifference of A. exposing a 12 year old to the risks inherent in the sex trade
(f) A.'s youth record contains recent convictions for other violent offences
(g) A. expresses no remorse and / or regret for her actions; although not directly aggravating, this goes to her rehabilitative potential
(h) A. has no empathy for the victim; again this is relevant to rehabilitation
(i) A. sees no need to change and has no interest in engaging in treatment programming or counselling
(j) She does not take responsibility for her assaultive actions
(k) Her aggressive behaviour continued while in custody
(l) The impact of her procuring of H's on her family was very serious as set out in the Victim Impact Statement.
Mitigating Factors
51A. has entered a guilty plea at a fairly early time in the proceedings. A trial scheduled for 12 days has been vacated.
52The guilty plea saves the victim the necessity of coming to court and being publicly exposed to cross examination. This is a significant mitigating factor given the nature of the offence and the age of the victim.
53Not strictly mitigating, although A was solely responsible for procuring H, A. was not the directing mind of the exploitation of H. following her procurement.
54Despite A.'s minimal effort towards treatment programming at Syl Apps, she has expressed a willingness to continue to work with Ms. Lindsay Heller of Central Toronto Youth Services (CTYS) and Ms. Candice D'Souza of the Elizabeth Fry Society (EFS).
Principles of Sentencing
55The purpose of sentencing under the YCJA is to hold young persons accountable for their offences by imposing just sanctions that serve as a meaningful consequence and that promote their rehabilitation and reintegration into the community thereby contributing to the long term protection of the public; see YCJA s. 38(1).
56In deciding on the appropriate sentence I am to be guided by the principles set out in subsection 38(2) and the factors enumerated in subsection 38(3).
57The sentence I am to impose is to be the least restrictive sentence capable of satisfying the applicable sentencing principles; see subsection 38(2)(e)(i).
58The sentence should be the one most likely to rehabilitate and reintegrate the young person into society; see subsection 38(2)(e)(ii).
59The sentence is to be proportionate to the seriousness of the offence and to A.'s degree of responsibility; see subsection 38(2)(c).
60It must also promote a sense of responsibility in A. and acknowledge the harm done to the victim and the community; see subsection 38(2)(e)(iii).
61Enumerated factors set out in subsection 38(3) that are particularly relevant in this case are A.'s degree of participation in the offence, the harm inflicted, the time spent in pre-sentence detention and her criminal record.
Application of Sentencing Principles to the Offender
62The procuring of a young child into the seedy and dangerous world of prostitution is a very serious offence. H was but 12 years old when she was procured. Although A. was not the directing mind of the overall prostitution enterprise, it was A. and not her boyfriend who recruited H and facilitated her introduction into "the business".
63Although I do not have a Victim Impact Statement (VIS) from H, her mother's VIS speaks of the profound impact H's procurement had not only on her but on her entire family; an impact that continues until this day.
64A.'s youth record is aggravating as it includes recent offences of violence.
65A. had been in custody at Syl Apps since November 2015.
66A. has not done well while in detention which may reflect both attitude as well as possibly cognitive limitations or learning disabilities. She has made minimal effort to engage in treatment programming. She has developed a limited report with her workers from Central Toronto Youth Services and the Elizabeth Fry Society. The one ray of hope is her stated willingness to continue to engage with these workers should she be released.
67I do not share counsels' guarded optimism for A's rehabilitation. A.'s rehabilitative potential is very bleak given her lack of remorse, lack of empathy, lack of insight into her behaviour, unwillingness to take responsibility for her negative behaviours and most importantly, her unwillingness or lack of recognition that she needs to change. She has little interest in counselling. All of this puts her at risk of getting into trouble as she attempts to navigate completion of school or to conform to rules and routines should she be employed. Her endorsement of anti-social attitudes does not speak well of her chances of being rehabilitated.
68A's only hope of rehabilitation is to continue to develop trust and respect with her service providers and to engage in some meaningful self-reflection, to engage in counselling and to be open to addressing some of the underlying issues such as her lack of impulse control and possible learning difficulties or cognitive limitations.
69If A. is to make any real progress she is going to need a lot of professional support over an extended period while established in a stable home environment. It is recommended by a number of her workers that A. should reside with her mother. Being that A. is now 18, she will make her own decision, but I endorse strongly residing with her family for the time being.
The Sentence
70The limitations of the YCJA make it a challenge to satisfy the applicable sentencing principles when the Court is confronted with someone like A., who needs supervision and counselling over a long period of time but which she is not yet prepared to embrace.
71I have given considerable thought of extending A.'s incarceration at Syl Apps given the offence, her role and importantly her lack of insight and willingness to engage in counselling to date in any meaningful way. Her continued refusal to engage in any form of rehabilitation means not only is she a high risk for reoffending, but she continues to pose a threat to the long term safety of the public. I am very cognizant this plea comes to me as a joint submission. A. entered the plea believing she would be released from custody. Bar concluding the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest, I must accede to it.
72I have raised with counsel my concerns with the joint position and have given them additional time on two occasions to address those concerns. I thank them for their submissions on what is collectively agreed to be a difficult sentencing.
73I have reluctantly come to the conclusion that a discharge for this offence, for this offender, where the period of supervision being proposed is one year is inappropriate. The proposed sentence would be contrary to the public interest and would bring the administration of justice into disrepute. The applicable principles of the YCJA, particularly s. 38(2)(e)(ii), cannot be satisfied by one year of probation.
74A. has been at Syl Apps for 1 year receiving the most intensive rehabilitative intervention available for youths in the Province. Her progress has been minimal at best. She is presently is not prepared to engage in counselling.
75Despite the minimal progress at Syl Apps, I do not believe additional time in custody is necessary to satisfy the applicable principles of sentencing. However, if the sentence is to be one that most likely contributes to the rehabilitation of A. and to promote reintegration of A. into society, and contributes to the long term protection of the public, the sentence must be the longest possible period of supervision including mandatory conditions of counselling. Anything short of that will not satisfy the applicable sentencing principles.
76The joint position proposes that A. be credited for 8 months of pre-trial custody credited at a rate of 1.5 to 1, for the equivalent of 12 months of pre-sentence custody. Credit for time spent in pre-trial detention is frequently at an enhanced rate in part to reflect the fact most detention centres do not offer any programs. Another reason is detention centres are harsh conditions where overcrowding and institutional lockdowns are common.
77A. has had a very different experience in incarceration. A. has had the benefit of the opportunity to engage in very intense counselling at Syl Apps, which to use defence counsel's words, is the gold standard of institutions, equipped with staff, professionals and resources to address the myriad of issues faced by young persons. It provides the best rehabilitative opportunities for youth in the Province. Syl Apps is a very different type of 'detention' centre where young people are housed in very humane population controlled conditions. Despite the availability of therapeutic programming and counselling, A has made the most minimal of effort and has largely refused to engage in any meaningful way with her therapeutic team.
78I decline to grant pre-sentencing custody on an enhance basis. A. will be credited for 8 months of pre-trial credit.
79By granting pre-sentence custody for only the exact time served, the length of the probation period can be extended. Both the parties agree that the maximum time of probation supervision is appropriate.
80As for the issue of discharge or probation, I am not convinced that a discharge is appropriate given A.'s previous and recent record, including crimes of violence. Also the index offence is a very serious offence involving virtually a child. The stigma associated with the extension of the record access period for an additional 6 months by the granting of probation is not a significant factor given the minimum additional time.
81A. will be placed on probation for 16 months on the following terms:
Report to your probation officer within 24 hours of release
Reside at an address approved of by your probation officer
Be amenable to the rules set out by your mother should you reside with her
Have no contact or communications directly or indirectly by any means with H, Kahmal Paris or Alico Allen except through counsel
Not to be within 200 metres of any of the above named people, nor be within 200 metres of any place you know them to live, work, go to school or happen to be
Not to possess any weapons as defined by the Criminal Code
Not access Facebook, Twitter or Backpage
Contact Ms. Lindsay Heller of Central Toronto Youth Services (CTYS) or her designate and Ms. Candice D'Souza of Elizabeth Fry Society (EFS) or her designate, within 72 hours of release and arranged appointments
Continue to attend for all appointments, counselling sessions and assessments as arranged by CTYS or the EFS
Take counselling as directed by your probation officer; counselling to be co-ordinated with CTYS and EFS to avoid duplication
Sign any and all releases as required by Probation to monitor your progress in counselling and/or assessments
Attend school as directed by your probation officer, as arranged in consultation with CTYS or seek and maintain employment
82I direct that a copy of this judgment be sent to Youth Probation to be forwarded to A.'s probation officer.
83My final word is one of caution. It is clear on the review of the s. 34 assessment and the pre-sentence report, Ms. T., perhaps out of misguided love, has often sheltered A. from the results of her bad decisions. A. acknowledges she has manipulated her mom on occasion into removing any consequences for her own actions. This likely has contributed to A.'s failure to accept responsibility for her behaviour and to blame others for things that happen as opposed to taking responsibility for her actions or reflecting on her behaviour. If A. chooses to reside with Ms. T., which is recommended by everyone, rules should be clearly set out and enforced. If A. chooses to assert her wish to live in her own apartment, she should be required to be responsible for what that entails, and it certainly does not include having her expenses paid for my her mother. To do otherwise would continue to perpetuate the long standing problem of A. not being responsible for her own life.
84A., you are now an adult and will be treated as such in the future.
NOTE: A DNA and a s. 51 order for two years were also made.
Released: November 3, 2016
Signed: "Justice Robertson"