WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(3) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(3), read as follows:
486.4(3) CHILD PORNOGRAPHY — (1) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Christian Crosdale
Reasons for Judgment on Sentence
Before: Justice Marcella Henschel
Heard on: December 5 and December 12, 2018
Reasons for Judgment delivered orally: December 12, 2018
Released in writing: January 4, 2019
Counsel:
- Michael Ventolla, counsel for the Crown
- Michael Caroline, counsel for the defendant Christian Crosdale
HENSCHEL J.:
A. Introduction
1Following a trial, on October 19, 2018, I found Mr. Crosdale guilty of a number of human trafficking, prostitution, and child pornography offences committed against M.C. and T.T., a person under the age of 18 years. Mr. Crosdale was also convicted of one count of assault against M.C. The full circumstances of the offences are set out in detail in my reasons for judgment of November 2, 2018, released as 2018 ONCJ 800. I have outlined the offences only briefly below.
2The Crown seeks a global sentence of 9 years together with a number of ancillary orders. The defence proposes a sentence of 3 to 5 years. I have concluded that a sentence of 6 years is appropriate. These are my reasons for sentence.
B. The Nature of the Offences
3Mr. Crosdale was convicted of two counts of human trafficking. I found that Mr. Crosdale recruited M.C. in August and December 2016 for the purpose of exploiting her contrary to s. 279.01 of the Criminal Code. At the time that he recruited M.C. she was vulnerable. She was 19-years-old and was working with another pimp, JP, who was violent and abusive. Although Mr. Crosdale was less physically violent towards M.C. than JP, Mr. Crosdale took advantage of M.C.'s vulnerability in order to exploit her. He contacted her and persuaded M.C. to work with him by convincing her that things would be better with him than with JP. M.C. agreed to work with Mr. Crosdale after she was attacked by JP and suffered serious injuries, including a concussion.
4After recruiting M.C., Mr. Crosdale became M.C.'s pimp and she worked for him in August 2016 and between December 2016 and March 8, 2017. Mr. Crosdale exploited M.C. for his financial benefit. He pocketed all of the money she made working in the sex trade. M.C. estimated that she made approximately $5000 a week and that he obtained approximately $60,000 from her. M.C. believed that Mr. Crosdale was going to put the money in a safe for her. However, when she asked for her money following her arrest, Mr. Crosdale returned only $500 to her. Mr. Crosdale exploited M.C. and took the money for his own benefit. While she was working for him, M.C. had to ask Mr. Crosdale for money for the necessities of life, including food, clothing, and for the hotels she was working out of.
5Mr. Crosdale used physical violence, threats and coercion to exercise control, direction, and influence over M.C.'s movements to cause her to continue to work in the sex trade for his benefit. He physically assaulted M.C. on one occasion after she went out on New Year's with a friend without his permission. He considered this to be "acting out of pocket" and came to her hotel room, removed his rings, and backhanded her in the face in order to teach her a lesson. He threatened her and told her that the next time she did something wrong it would not only be a slap, that he would break her jaw or her nose. After he hit her he wrote "honesty", "loyalty", "respect" and "teamwork" on a piece of paper, language that has a clear and coercive message in the context of the sex trade.
6After the New Year's incident, Mr. Crosdale took possession of M.C.'s identification in order to control her. He isolated her from others, restricting who she could see and spend time with. He moved her frequently from hotel to hotel. He instructed her to obtain a tattoo that included his name. Throughout their relationship, Mr. Crosdale posted M.C.'s advertisements offering sexual services for money on backpage.ca.
7In March 2017, Mr. Crosdale manipulated M.C. to participate in recruiting another young woman, T.T., to work for him. Between March 6-9, 2017, Mr. Crosdale recruited 16-year-old T.T. for the purpose of exploiting her, knowing or being wilfully blind to the fact that she was under 18 years-old. He procured T.T. to offer sexual services for consideration, and exercised control, direction and influence over her movements in order to facilitate her provision of sexual services for money.
8Mr. Crosdale and M.C. arranged for T.T. to meet M.C. at a condominium and paid for T.T.'s taxi ride to the condominium. Shortly after T.T. arrived, Mr. Crosdale directed T.T. and M.C. to take photos to post on backpage.ca to advertise their sexual services. Mr. Crosdale participated in the creation of photos. He brought T.T. jewelry to wear in the photos, chose and edited the photos, and posted her advertisements on backpage.ca. The photos of T.T. constituted child pornography, and in receiving them via Instagram from M.C., selecting the photos to be posted, participating in their creation and editing them, and posting them on backpage.ca, Mr. Crosdale accessed, possessed, made, and distributed child pornography.
9After first meeting T.T. in the early morning hours of March 7, 2017, over the next two days Mr. Crosdale communicated with T.T. via Blackberry messenger and exercised control, direction, and influence over her movements including when she should wake up and sleep, when she should work, the sexual services she should provide, the amounts she should charge, the goals she should set for the amounts she could earn from the provision of sexual services, what she could spend her money on, who she could speak with, what she should post on Instagram, and when she could come and go from the condominium. He encouraged her to participate in the sex trade, and when she expressed doubts he persuaded her to continue to work in the sex trade. The BBM messages also contain coercive comments and implied threats. As a result of his contact with T.T., she engaged in the provision of sexual services for consideration with at least two men, and would have continued to do so but for the intervention of the York Regional Police. Although T.T. never gave any money to Mr. Crosdale, I have no doubt that but for the intervention of the police, she would have done so.
C. Personal Circumstances of Mr. Crosdale
10Mr. Crosdale is now thirty-three years old. He has no prior criminal record.
11The pre-sentence report, Exhibit 3, established that:
Mr. Crosdale grew up in Kitchener, Ontario and he and his siblings were primarily raised by his mother. His father lived in Toronto and he saw him occasionally. He had a close, loving, and supportive relationship with his mother and siblings.
Mr. Crosdale is in a long-term relationship and has acted as the father of his fiancée's 17-year-old son. He also has a 13-year-old daughter from a prior relationship. He has an amicable relationship with the mother of his daughter and he sees his daughter regularly on weekends. He is in arrears with his child support obligations to his daughter.
Mr. Crosdale does not have any difficulties with alcohol or drugs.
Mr. Crosdale is currently unemployed and is supporting himself by social assistance. Previously, for three years he worked as a mortgage agent and prior to that he had his own moving company.
Mr. Crosdale completed high school and is one credit short of completing a Business Foundations certificate program. He is taking real estate courses by correspondence.
During the time frame that the charges were outstanding, Mr. Crosdale volunteered most Fridays at the food bank at his church. He has also been participating in couples and individual counselling with the pastor of his church.
12Mr. Crosdale does not agree with the indications in the pre-sentence report that he takes no responsibility for his offending behavior and denies doing anything whatsoever that is illegal. Mr. Caroline indicates that he accepts that he engaged in wrong and illegal behavior, although Mr. Caroline did not specify the nature of the conduct that Mr. Crosdale admits.
13Mr. Crosdale provided 19 letters of support from family members, friends, and his church community. As noted in the presentence report, in the letters Mr. Crosdale is described as a family oriented man of faith. He is described as someone with a history of helping in the community, an encourager, and an advocate for friends and family. He is described as respectful and caring towards women.
14It is clear that Mr. Crosdale's conduct will have a profound impact not only on the victims of the offences, but on the members of his family and community, who will be left to attempt to reconcile the man they knew with the serious offences for which he has been convicted. While I accept that the letters set out how Mr. Crosdale presented to his family and friends, Mr. Crosdale was living another life, and was a different man when he interacted with M.C. and T.T. The evidence that Mr. Crosdale was T.T.'s and M.C.'s pimp in the sex trade was overwhelming.
15Contrary to the picture painted by those who support him, the evidence established that Mr. Crosdale's conduct towards M.C. and T.T. was exploitative and self-serving. His conduct was reprehensible involving the repeated, planned, and deliberate exploitation of the vulnerable for personal gain. His conduct and offences were a part of a counterculture that commodifies and accepts as permissible the violent and coercive domination of vulnerable women and children, primarily by men, for financial gain. It is conduct that is a pervasive and shameful blight on our community.
D. Victim Impact
16As expressed in her victim impact statement, the offences had a significant impact on M.C. In her statement M.C. indicated that she thinks of the offences daily and that following the offences she suffered from post-traumatic stress disorder, depression, and anxiety. She described feelings of aloneness and being left with nothing following the offences, undoubtedly a symptom of the isolation Mr. Crosdale created for his benefit in order to control M.C.
17Although T.T. did not provide a victim impact statement, and I do not know directly from her the extent of the impact of the offences, given her youth, and the fact that this was her first involvement in providing sexual services for consideration, it is not unreasonable to infer that these events will have a significant impact on her life.
E. Pre-Sentence Custody
18Mr. Crosdale spent 108 days in pre-sentence custody. The parties agree that he is entitled to credit on a 1.5 to 1 basis. This results in credit for 162 days in custody.
F. Statutory Parameters
19No constitutional challenge was made to the mandatory minimum sentences for human trafficking in this case. As a result, the following sentences are provided for in the Criminal Code:
(a) The human trafficking offences under s. 279.01 and s. 279.011 of the Criminal Code carry minimum sentences of four years and five years respectively and maximum sentences of 14 years. In R. v. Finestone, 2017 ONCJ 22, Justice Greene considered a constitutional challenge to the mandatory minimum sentence in s. 279.011, and found the provision was grossly disproportionate and violated s. 12 of the Charter. Justice Greene concluded that the provision could not be saved by s. 1 of the Charter. However, as Justice Greene emphasized in para. 93, a judge of the Ontario Court of Justice has no jurisdiction to declare the mandatory minimum sentence unconstitutional under s. 52 of the Charter. As such in Finestone, the impact of Justice Greene's findings were applicable only to that case, such that Justice Greene did not apply the minimum sentence. Contrary to the submissions of the defence, in the absence of a constitutional challenge, I am required to apply the mandatory minimum sentences in this case.
(b) Procuring a person under the age of 18 years to offer or provide sexual services for consideration, contrary to s. 286.3(2) of the Criminal Code, has a mandatory minimum sentence of 5 years and a maximum sentence of 14 years. In R. v. Safieh, 2018 ONSC 4468, the court held that the mandatory minimum 5 year sentence in s. 286.3(2) was unconstitutional and of no force or effect. (see also R. v. Boodhoo and others, 2018 ONSC 7207). As a result, I have proceeded on the basis that the five year minimum sentence is no longer in force.
(c) Exercising control, direction, or influence over the movements of a person for the purpose of facilitating an offence under s. 286.1(1), contrary to s. 286.3(1) has no minimum sentence and has a maximum sentence of 14 years.
(d) Knowingly advertise an offer to provide sexual services for consideration, contrary to s. 286.4 of the Criminal Code has a maximum sentence of 5 years.
(e) Receive a financial or other material benefit knowing it was obtained by the commission of an offence contrary to s. 286.1(1), contrary to s. 286.2(1) of the Criminal Code has no minimum sentence and has a maximum sentence of 10 years.
(f) Withholding travel or identity documents contrary to section 279.03(1) of the Criminal Code has no minimum sentence, and has a maximum sentence of 5 years.
(g) Assault contrary to s. 266 has a maximum sentence of 5 years.
(h) Making child pornography contrary to section 163.1(2) and distribution of child pornography contrary to s. 163.1(3) both have a mandatory minimum sentence of 1 year and a maximum sentence of 14 years. In R. v. Boodhoo, 2018 ONSC 7207, the court struck down the mandatory minimum contained in s. 163.1(3), for distributing child pornography. In R. v. Joseph, 2018 ONSC 4646, the mandatory minimum sentence for making child pornography was found to be unconstitutional and of no force and effect. As a result, I have proceeded on the basis that the one year minimum sentences in s. 163.1(2) and (3) are no longer in force. (see also R. v. A.R., 2018 ONCJ 613)
(i) Possession of child pornography contrary to s. 163.1(4) and accessing child pornography contrary to 163.1(4.1) both have minimum sentences of 1 year and maximum sentences of 10 years. The mandatory minimum sentence for possession of child pornography was subject to a constitutional challenge in R. v. John, 2018 ONCA 702, wherein a 6 month minimum sentence (applicable at the time) was found to be unconstitutional and of no force or effect. (see also Joseph which held that the mandatory minimum penalty for possession of child pornography was of no force and effect). As a result, I have proceeded on the basis that the one year minimum sentence under s. 163.1(4) is no longer in force.
G. Governing Sentencing Principles
i. Relevant Statutory Provisions
20According to s. 718 of the Criminal Code, the "fundamental purpose" of sentencing is to contribute to "respect for the law and the maintenance of a just, peaceful and safe society" by imposing "just sanctions" that have one or more of the following objectives, namely:
(a) to denounce unlawful conduct;
(b) to deter the offender and others from committing offences;
(c) to separate offenders from society where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.
21Further, according to s. 718.1 of the Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender".
22Section 718.2 of the Code dictates that, in imposing sentence, the court must also take into account a number of principles including the following:
(a) A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
(b) A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
23Parliament has also deemed certain conduct to be a statutorily aggravating circumstance in s. 718.2. Section 718.2(a)(ii.i) which provides that evidence that the offender in committing the offence, abused a person under the age of 18 years and s. 718.2(a)(iii.1) which provides that "evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances including their health and financial circumstances…" are statutorily aggravating circumstances relevant in this case.
24This offence involved a victim under the age of 18 years. T.T. was only 16 years old at the time of the offences. Section 718.01 provides that "when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct".
ii. Sentencing Principles Applicable Specific to the Case
25Aside from the statutory direction in s. 718.01, it is well established that general deterrence, denunciation, specific deterrence and protection of the community are of paramount importance for the offences for which Mr. Crosdale has been convicted. Rehabilitation remains a legitimate objective and one that must be considered in crafting the appropriate sentence, particularly in light of the fact that Mr. Crosdale has no prior criminal record, and has strong family and community support.
26Recently in R. v. John, 2018 ONCA 702, at para. 41, the Ontario Court of Appeal emphasized the importance of denunciation and deterrence for any offence involving abuse of a child and emphasized that those principles are of primary importance in cases involving child pornography. See also R. v. Inksetter, 2018 ONCA 474, at para. 16.
27In R. v. Lopez, 2018 ONSC 4749, Justice Campbell effectively summarized the gravity of human trafficking and related offences stating as follows at para. 52:
For many years Canadian courts have decried the inherently exploitive, coercive and controlling actions of "pimps" in relation to prostitutes. The unfortunate contemporary reality of the sex trade is that male pimps typically are involved in the exploitation, degradation, and subordination of women. At its most basic level, it is a form of slavery, with pimps living parasitically off the earnings of prostitutes. Pimps exercise their control over prostitutes by means of a variety of tactics including emotional blackmail, verbal abuse, threats of violence and/or pure physical violence and brutality. The prostitutes that are the subject of this coercive exploitation are typically vulnerable and disadvantaged women, who have been manipulated and taken advantage of by the pimp. Even in cases where their initial participation in the sex trade is voluntary, including perhaps their business association with the pimp, and adopted for reasons of perceived increased security and safety in an inherently dangerous line of work, the relationship invariably becomes one-sided and exploitive. Prostitutes are ultimately forced, in one way or another to provide sexual services for money in circumstances where they would not otherwise have agreed to such services and the money earned from those sexual services is collected by the pimp. Accordingly, in a very real and practical sense, pimps traffic in human resources of prostitutes, callously using their sexual services as an endlessly available commodity to be simply bought and sold in the market place. Accordingly, pimps have been aptly described as a "cruel, pernicious and exploitive evil" in contemporary society. [citations omitted]
iii. Range of Sentence
28In R. v. A.E., 2018 ONSC 471, at para. 65, Justice Boswell, while emphasizing the difficulty in defining a usual range of sentence for human trafficking offences due to the variety of circumstances in which the offence may be committed, concluded that since 2014, with the introduction of mandatory minimum sentences, the range of sentence for offences contrary to s. 279.01 is roughly 4 to 8 years, depending on the aggravating and mitigating circumstances present.
29In Lopez, Justice Campbell considered the principles of sentencing in pre-2014 "pimping" cases and found that Canadian courts have generally accepted that in cases where an accused has coerced a woman into becoming or remaining a prostitute and exercised a significant degree of control over her activities, that sentences of four or five years have typically been imposed. Justice Campbell observed that while the past approach to sentencing pimps who exploit those employed in the sex trade continues to have relevance, courts must keep in mind the Parliamentary paradigm shift that occurred with the enactment of Bill C-36, Protection of Communities and Exploited Persons Act, S.C. 2014, c. 25. The legislation was designed as a "significant paradigm shift in criminal law policy regarding prostitution-related offences from treating prostitution as a type of nuisance towards treating prostitution as a form of sexual exploitation that disproportionately and negatively impacts on women and girls".
With this legislation, introduced on December 6, 2014, parliament introduced the mandatory minimum sentence of 4 years imprisonment applicable to s. 279.01. In short, the courts in A.E. and in Lopez recognized an upward movement in the range of sentences for human trafficking since the enactment of Bill C-36 and the introduction of the mandatory minimum sentence for s. 279.01 in 2014.
30The imposition of a specific sentence, of course, depends on the unique circumstances of the case. In Lopez, at para 53, Justice Campbell identified a number of factors that may be relevant in determining the appropriate sentence for an individual case. I have taken those factors into account in identifying the applicable aggravating and mitigating circumstances. Justice Campbell also noted that lesser terms of imprisonment may be appropriate in cases where coercion and or exploitation are lacking.
H. Aggravating Factors
32In this case, there are a number of significant aggravating factors including:
There were two victims. Both victims were young and vulnerable.
T.T. was only 16-years-old, and M.C., although an adult, was only 19-years-old. Due to the personal circumstances in their lives, including abuse M.C. suffered at the hands of her previous pimp, and troubled backgrounds, both were vulnerable. M.C. indicated that in the time frame she began to work with Mr. Crosdale she had nowhere else to go or to live.
Mr. Crosdale recruited and procured T.T. to become a sex trade worker. She was only 16-years-old and although she had an interest in becoming involved in the sex trade prior to meeting Mr. Crosdale, she was inexperienced and as a result of his conduct she engaged in acts of prostitution for the first time.
Mr. Crosdale posted naked or partially naked photos of both M.C. and T.T. in suggestive poses on backpage.ca to advertise their sexual services. Those photos now remain in the public domain leaving an ongoing impact for each complainant. In respect of M.C., Mr. Crosdale posted a large number of photos. In respect of T.T., the photos constituted child pornography. As noted by the court in Inksetter, the children depicted in pornographic images are re-victimized each time the images are viewed.
Although generally Mr. Crosdale exercised intimidation and control of M.C. through more subtle means, there was physical and sexual violence, during the course of their relationship on two occasions. Mr. Crosdale also threatened M.C. with the use of more significant violence if she failed to comply with his directions.
Mr. Crosdale's exploitation of M.C. was planned, deliberate, and did not arise situationally. He sought her out and recruited her and intentionally capitalized on M.C.'s vulnerability for his material benefit. The exploitation continued for months, and involved a high degree of moral blameworthiness. MC was exploited every day for a period of approximately 4 months in total.
Mr. Crosdale exercised significant control over M.C. regarding her places of work and hours of work. M.C.'s working conditions, while not of the worst seen in human trafficking cases, were harsh. She was moved from hotel to hotel by Mr. Crosdale, and was isolated and alone. She worked constantly providing sexual services to clients. Mr. Crosdale caused her to be dependent on him for the necessaries of life.
Mr. Crosdale controlled the frequency of M.C's work by controlling her postings on backpages.ca. M.C. worked almost every day for lengthy hours and serviced a large number of clients each day.
Mr. Crosdale took essentially all of M.C.'s earnings from her, an amount somewhere in the range of $60,000. His offences were purely motivated by greed.
I. Mitigating Factors
33There were also a number of mitigating factors in this case. The relevant mitigating factors include the following:
Mr. Crosdale has no prior criminal record. He has never previously been sanctioned by a court.
Although Mr. Crosdale recruited T.T., it was not a circumstance where her participation was forced through violence. She was interested in participating in the sex trade and Mr. Crosdale took advantage of her interest and persuaded her to participate and, to some extent, relied upon implied threats and coercion.
While recruiting a young person into prostitution, and taking steps that lead to a young person engaging in acts of prostitution is very serious, unlike many circumstances of human trafficking where the exploitation continues for months or years, Mr. Crosdale's involvement with T.T. was very limited, and occurred over a period of only two days. In addition, while I have found that Mr. Crosdale utilized implied threats and coercion, as noted, during this time there was no physical violence used against T.T.
Mr. Crosdale did not come into possession of any of the money obtained by T.T. from her participation in the sex trade.
Mr. Crosdale's acts of exploitation were serious, however in respect of T.T. his conduct did not involve the level or frequency of violence that are often the hallmarks of a pimp and sex trade worker relationship.
In terms of rehabilitative prospects, Mr. Crosdale continues to have the love and support of his mother, sister, fiancée, daughter, step-son, many relatives and friends and the support of his church community.
J. Position of the Parties
34The Crown seeks a global sentence of 9 years, less credit for pre-sentence custody. A number of ancillary orders are also sought including:
i.) A non-communication order under s. 742.21 in respect of M.C. and her immediate family, and T.T. and her immediate family.
ii.) A DNA databank order.
iii.) A sex offender registry order for life under s. 490.013(2.1)
v.) A section 109 Firearms Prohibition order for 10 years.
vi.) Forfeiture of $860 seized by the YRP, and release of the funds to M.C. pursuant to s. 491.1(2)(a).
35Mr. Caroline submits that I should impose a global sentence of 3 to 5 years prior to credit for pre-sentence custody being given. He does not oppose the imposition of the ancillary orders sought by the Crown.
36I have determined that a global sentence of 6 years is warranted. As in R. v. A.E., 2018 ONSC 471, the multitude of offences for which Mr. Crosdale has been convicted raises the issue of how the sentences for the offences should be structured. Specifically, whether they should be imposed concurrently or as consecutive sentences. The task is further complicated by the fact that the human trafficking offences carry significant mandatory minimum sentences, which, if they were imposed consecutively, would lead to a 9 year sentence at minimum.
37Whether sentences are imposed concurrently or consecutively is a matter of judicial discretion. However, consecutive sentences "are more generally appropriate in cases where the offences are not part of the same transaction or closely linked together, or where they impact on different legally protected interests". Consecutive sentences are imposed, the totality principle requires that a court imposing consecutive sentences ensure that the cumulative sentence does not become disproportional to the overall culpability of the offender.
38In my view, the sentences for the varying offences for which Mr. Crosdale has been convicted involving M.C. should be concurrent to each other. Similarly, the sentences for the varying offences for which Mr. Crosdale has been convicted involving T.T. should also be concurrent.
39Although there are two victims, and s. 279.011 engages additional legally protected interests than the interests protected by s. 279.01, specifically the protection of children and young persons, the underlying misconduct involving T.T. and M.C. was closely linked together. All of the allegations involving T.T. occurred in a period of three days and at the same time as the ongoing exploitation of M.C. Notably, in A.E., Justice Boswell imposed concurrent sentences in circumstances where the accused was the pimp of two separate victims, one for a lengthy period of time and one for a shorter but overlapping period.
40In the end, a sentencing judge must "fix a global sentence that reflects the specific circumstances of the offences and the unique circumstances of the offender. It would be an error of law not to consider the full impact of making sentences consecutive and whether the global sentence properly reflects the gravity of the offences and the responsibility of the offender". In my view, despite the serious nature and high moral blameworthiness of the offences, to impose consecutive sentences in this case would result in a sentence that is disproportionate to the gravity of the offences and that fails to give adequate consideration to Mr. Crosdale's rehabilitative prospects. In my view such a sentence would not reflect the principle of totality or parity with other similar offenders.
K. Conclusion: Imposition of Sentence
Human Trafficking and Related Offences
Count 1: Recruiting T.T., a person under the age of 18 years for the purpose of exploitation, contrary to s. 279.011 of the Criminal Code — 5 years in custody.
Count 2: Procuring T.T., a person under the age of 18 years to offer or provide sexual services for consideration, contrary to s. 286.3 of the Criminal Code — 5 years concurrent.
Count 3: Exercise control, direction, or influence over the movements of T.T., for the purpose of facilitating an offence under ss. 286.1(1), contrary to s. 286.3(1) of the Criminal Code — 4 years concurrent.
Count 4: Knowingly advertise an offer to provide sexual services for consideration, contrary to s. 286.4 of the Criminal Code — 2 years concurrent.
Count 5: Possession child pornography, contrary to s. 163.1(4) of the Criminal Code — 1 year concurrent.
Count 6: Access child pornography, contrary to s. 163.1(4.1) of the Criminal Code — 1 year concurrent.
Count 7: Make child pornography, contrary to s. 163.1(2) of the Criminal Code — 1 year concurrent.
Count 8: Distribute child pornography, contrary to s. 163.1(3) of the Criminal Code — 1 year concurrent.
Count 9: Recruit M.C. for the purpose of exploitation, contrary to s. 279.01 of the Criminal Code — 6 years concurrent.
Count 11: Receive a financial or other material benefit knowing it was obtained by the commission of an offence contrary to s. 286.1(1), contrary to s. 286.2(1) of the Criminal Code — 2 years concurrent.
Count 12: Knowingly advertise an offer to provide sexual services for consideration contrary to s. 286.4 of the Criminal Code — 2 years concurrent.
Count 13: Exercise control, direction or influence over the movements of M.C. for the purpose of facilitating an offence under ss. 286.1(1) contrary to s. 286.3(1) of the Criminal Code — 4 years concurrent.
Count 14: Assault M.C. contrary to s. 266 of the Criminal Code — 1 year concurrent.
Count 15: Withhold travel or identity documents of M.C. contrary to section 279.03(1) of the Criminal Code — 1 year concurrent.
Reasons for Sentencing Decisions
56In respect of my findings on count 1 and count 9, the human trafficking offences, on count 1 in finding a sentence of 5 years to be appropriate I have taken into account the amount of coercion involved, the absence of physical violence, and the short duration of the exploitation. However, Mr. Crosdale exploited a young person for no reason other than greed. It is an egregious offence. Recruiting young persons to participate in prostitution destroys lives and it destroys the youth of a young person. It is essential that significant jail sentences are imposed in such cases to denounce the conduct and harm done, to deter the offender and others like-minded from engaging in such conduct in the future. Taking into account the aggravating features in this case, the young age of T.T. and her inexperience, despite the brief period during which the exploitation occurred, even in the absence of a mandatory minimum sentence in my view a 5 year sentence is appropriate.
57Similarly, with respect to count 9, the human trafficking offence under s. 279.01 of the Criminal Code, to which I have sentenced Mr. Crosdale to a period of custody of 6 years, concurrent, Mr. Crosdale exploited M.C. repeatedly for a period of 4 months. He did so solely as a result of his own greed. He treated M.C. like a piece of property, to be used as he saw fit. He used physical violence, coercion, and threats to effect his purpose. The extent of exploitation increased throughout the period of time that he was working with M.C. and culminated in his using her to draw in a second victim, a young person. When she was arrested he left her to fend for herself. His moral blameworthiness is very high. Irrespective of any mandatory minimum sentence, denunciation and deterrence require a 6 year sentence for this offence.
58As noted above, Mr. Crosdale spent 108 days in pre-sentence custody. The parties agree that he is entitled to credit on a 1.5 to 1 basis. This results in credit for 162 days in custody. As a result that credit needs to be deducted from the global sentence of 6 years. Six years equates to 2,190 days less 162 days results in a sentence of 2028 days, which is the equivalent of 5 years, 6 months and 21 days.
L. Ancillary Orders
59The parties have agreed that the following ancillary sentencing orders are appropriate:
s. 743.21 - No Contact Condition
60First, pursuant to s. 743.21, Mr. Crosdale is prohibited from communicating, directly or indirectly with M.C. and T.T. or any member of their immediate families while he is in custody.
DNA Databank Order
61Secondly, counts 1, 2, 5, 6, 7, 8, 13, and 15 are primary compulsory designated offences pursuant to section 487.051(1) and counts 3, 9, and 11 are primary presumptive designated offences pursuant to s. 487.051(2) of the Criminal Code. Counts 4, 12, and 14, are secondary designated offences pursuant to s. 487.051(3) of the Criminal Code. As a result, I order the taking of bodily substances from Mr. Crosdale for forensic DNA analysis. The order is mandatory for the primary designated offences. In respect of the primary presumptive offences the accused does not oppose the order and there is no evidence that the order would be grossly disproportionate.
62In respect of the secondary designated offences, I am satisfied that, having regard to all of the circumstances of this case the nature of the offences including the gravity of the offences committed by the accused, and the circumstances surrounding the commission of the offences, the absence of the criminal record, and the minimal impact the order will have on the privacy and security interests of the accused, that the order should be made, as it is in the best interests of the administration of justice.
Firearms Prohibition
63Thirdly, pursuant to s. 109(1)(a), of the Criminal Code, in respect of counts 1 to 3, 5 to 9, and 11 to 13 I order that the accused be prohibited (1) from the possession of any firearm (other than a prohibited or restricted firearm), cross-bow, restricted weapon, ammunition, and explosive substance, for a period of ten years after the accused is released from his term of imprisonment, and (2) from the possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.
Sex Offender Registry
64Fourthly, pursuant to s. 490.013(2.1) I am imposing a sex offender registration order for life, Mr. Crosdale having been convicted of more than one enumerated offence under that provision.
65The Crown initially requested that I impose a s. 161 order. Section 161 orders are only available where an offender is convicted or discharged of an enumerated offence in respect of a person who is under the age of 16 years. During the offence period T.T. was not under the age of 16 and, as a result, the Crown abandoned the request, and accordingly I decline to make an order under s. 161.
Forfeiture Order
66Finally, there was a request that I make a forfeiture order with respect to the $860 that was seized by the York Regional Police from Mr. Crosdale. I order that the funds be forfeited and ordered released to M.C. pursuant to s. 491.1(2)(a).
Released: January 4, 2019
Signed: Justice Marcella Henschel
Footnotes
1R. v. A.E., 2018 ONSC 471, at para. 40. R. v. Lopez, 2018 ONSC 4749.
2Lopez, at para. 54.
3A.E., at para. 43.
4Clayton Ruby, Gerald Chan, Nader Hasan, Annamarie Enenajor. Sentencing 9th Edition, LexisNexis Canada, Toronto 2017, at p. 595.
5During the sentencing proceedings Mr. Caroline requested that I give Mr. Crosdale 4 months credit for restrictive bail conditions to further reduce the sentence. I exercised my discretion not to give additional credit for the restrictive bail conditions in light of my decision not to impose consecutive sentences in respect of the mandatory minimum sentences and my application of the totality principle in imposing the sentences as a whole.
