R. v. Barrett, 2022 ONCJ 468

ONTARIO COURT OF JUSTICE DATE: 2022·10·19 NEWMARKET

BETWEEN:

HIS MAJESTY THE KING

— AND —

JUSTIN BARRETT

SENTENCING

Evidence and Submissions Heard: 12 September, 2022. Sentence: 19 October, 2022.

Counsel: Ms. Kellie Hutchinson............................................................................. counsel for the Crown Mr. Brian Crothers............................................................................ counsel for the defendant

KENKEL J.:

Introduction

1This case began when the parents of a 16-year-old girl found their daughter deceased in her bed. She’d died from a drug overdose. A Coroner’s investigation revealed that JS had been romantically involved with Justin Barrett. Although he knew she was 16, during their relationship he procured her to provide video services, intimate images and in-person sexual services to other persons for money.

2Mr. Barrett pleaded guilty to one count of Procuring a Person Under 18 – s 286.3(2) of the Criminal Code. The mandatory minimum sentence of 5 years set out in that section was found to be unconstitutional by the Ontario Court of Appeal – R v Safieh, 2021 ONCA 643. The Crown submits that a sentence in the range of 4 to 5 years is required. The defence submits that the court should consider one of two sentence options: a conditional sentence for the maximum term or a custodial sentence of 15 to 18 months.

The Offence

3Mr. Barrett created a false story about owing money to a group in the United States where he was attending school. He told JS that he would suffer harm if she did not help him. He then used that story with further embellishments to manipulate JS into work in the sex trade over a period of months.

4The police data extraction report from the victim’s phone generated 5,294 pages of text messages from the summer of 2019 to December 15, 2019. The majority of those communications were between the victim and Mr. Barrett. A brief summary of messages was appended to the Agreed Statement of Fact marked as Exhibit 4.

5The Agreed Statement of Fact and the text messages show that Mr. Barrett lied to the victim about their relationship. He repeatedly lied to her about being in trouble and needing money to compel her into providing various sexual services for his profit. The messages show that the victim JS was more than reluctant. At times she begged him to allow her to stop. “I can’t do this much longer. I can’t believe I’m even doing it”. His response was consistently indifferent and he continued to pressure her. All she wanted was a normal relationship. “I wish you could talk to me how normal people do and I wish you didn’t hate me. I’m scared of you”.

6JS told Mr. Barrett that she was “Not ok at all” but he simply replied, “Do you want to lose me?”. Even when she said, “I just want to die. Everything would be easier if I died” he continued to urge her to engage in the sex trade. The day before she died, she again begged Mr. Barrett to stop demanding her to engage in prostition. “Everything I’m stressed I want this all to be over … Is there another way I can make you money? … This is just a huge weight on my shoulders ….. Like I’m begging you.” His response was to suggest that she steal money from her grandmother. He continued to tell her that if she didn’t do as he directed, he would be “jumped” by people he owed money to.

7She never sent that last money he demanded. When she stopped responding to his texts he sent further messages including, “i … I hate u so much … there’s no coming back from this …. makes 0 money …. bitch”.

Aggravating Factors

8The factors that aggravate sentence:

• The offence was planned and deliberate
• The duration of the offence
• The breach of trust
• The special vulnerability of the victim
• The impact of the offence on the victim and her family

9To commit the offence Mr. Barrett invented a false story and then persisted in adding to the false narrative in an effort to compel the victim to work in the sex trade for his benefit. He manipulated her romantic feelings for him and used their relationship simply as a means to make money. He maintained that scheme and that pressure over a number of months until JS died.

10The text messages show that during those months Mr. Barrett became aware that JS was specially vulnerable. There were numerous references to her mental health issues. She also told him she didn’t want to continue working for him. She was “not ok” with what she was doing and she was having thoughts about ending her life. Despite that and despite the fact that JS literally begged him to let her stop, he continued to pressure her to engage in sex work by threatening to end their relationship and by repeating the lies about things that would happen to him.

11Mr. Barrett is being sentenced for the offence of procuring and not for any role he played in the death of JS. That doesn’t mean though that the impact of the offence on JS and her family isn’t relevant on sentence. JS’s mother explained that JS was a vulnerable girl who desperately wanted a boyfriend like her other friends had. She wanted and deserved to meet someone who was interested in her, but unfortunately she met a predator. The loss of JS has devastated her family.

12Her close friend told the court that she saw how JS’s relationship with Justin Barrett destroyed JS’s self confidence. JS became isolated, numb and filled with hopelessness. Her death has been traumatic for her friends and this witness said she’d lost her trust in other people.

Mitigating Factors

13There are several mitigating factors:

• The guilty plea
• Positive antecedents and a positive Pre-Sentence Report (PSR)
• Employment while on bail
• Family support
• A youthful offender

14Mr. Barrett pleaded guilty and that is a mitigating factor despite the strong Crown case. There was also a statement of remorse.

15The PSR shows that Mr. Barrett comes from a loving home with two supportive parents. He continues to enjoy the support of his family and extended family as shown by their attendance in court. His childhood was unremarkable. He graduated high school. He’s a gifted athlete and went to university in West Virginia on a soccer scholarship. He’s been employed while on bail and has abided by the conditions of his release.

16Mr. Barrett is now 21. He was 19 at the time of the offence.

Analysis

17The defence is right that all of the evidence including the Pre-Sentence Report does not reveal any factor that might lead someone to commit this type of offence. Mr. Barrett did not have an abusive or traumatic childhood. There’s no evidence he was otherwise involved in crime. He was not involved in drugs, gambling or other activity that could have affected his judgment. He didn’t even need the money.

18The defence submits that those positive aspects show there is a low risk of recidivism, but one would have said that prior to his committing the offence. Those same circumstances would have made it highly unlikely that he would have engaged in procuring a young girl over a prolonged period in the manner described above.

19The family suggested to the probation officer that Mr. Barrett’s drinking at university may have affected his judgment. It’s plain that the typical partying that often accompanies university life could not possibly explain Mr. Barrett’s conduct in this case which goes well beyond a temporary lack of judgement. The family is understandably grasping at straws, trying to explain why a person who had no reason to engage in any of this conduct would commit such a serious offence.

20The primary goal of sentence in this case is general deterrence. The sentence must denounce the conduct and the harm done by that conduct to the victim in this case. Mr. Barrett must also be specifically deterred from committing further offences. The sentence must assist in Mr. Barrett’s rehabilitation including the promotion of a sense of responsibility for his offence and the harm caused.

21This was an offence of cruelty, continued over a period of months. Mr. Barrett showed a complete disregard for the impact of his deception and his scheme on his young victim. Even when he received messages that showed her vulnerability and the impact the offence was having upon her, he continued to manipulate her to perform sexual services simply to satisfy his own greed.

22The fact that Mr. Barrett chose to manipulate a 16-year-old for months simply for greed shows an ongoing risk to the community that has not been identified or addressed. The fact that he was able to lie for months with no empathy for his victim and that he continued to pressure her despite her begging to be allowed to stop shows another significant risk factor that has not been identified or addressed. It’s not sufficient that this offence simply remains a mystery with no identified cause or reason. Despite the positive aspects of Mr. Barrett’s life both before and after the offence, I find that he poses a significant, ongoing risk to the public until those issues are addressed.

23I find that the defence submission of a conditional sentence or a reformatory sentence would give effect to the principle of rehabilitation, particularly for a youthful offender, but would not address the remaining principles of sentence. A reformatory sentence would not be proportionate to the gravity of the offence or the degree of responsibility of this offender.

24I find that the least restrictive sentence that would meet the principles of sentence discussed is a sentence of 4 years imprisonment. While the Crown’s submission of 5 years would not be unfit given the circumstances of the offence, I find that a 4-year term better acknowledges the guilty plea, the fact that Mr. Barrett was a youthful offender and the positive circumstances set out in the PSR.

25I’ve considered the defence submission that the sentence should be reduced for time spent on restrictive conditions of bail, but the principal term was an 11 p.m. to 6 a.m. curfew. There’s no evidence that the bail was restrictive in any meaningful way, and I find to reduce the term further would render the sentence unfit.

Sentence

26Mr. Barrett is sentenced to 4 years imprisonment.

27Procuring a person under 18 years is a primary compulsory designated offence s 487.04(a) of the Criminal Code. Mr. Barrett will provide a sample of his DNA for registration on the national databank.

28This is also a designated offence under the Sex Offender Information Registration Act, SC 2004 c 10 (SOIRA). Mr. Barrett will be subject to a SOIRA order for 20 years – s 490.013(2) of SOIRA.

29The phone and computer Mr. Barrett used to commit the offence is ordered forfeit to His Majesty to be disposed of or otherwise dealt with by law – s 490.1 of the Criminal Code.

Delivered: 19 October, 2022.