R. v. Barreau, 2024 ONCJ 522

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to 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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

DATE: October 16, 2024

ONTARIO COURT OF JUSTICE Toronto

BETWEEN: HIS MAJESTY THE KING — AND — KEVIN BARREAU

For the Crown M. Newhouse For the Defendant K. Doyle Heard: August 15, 2024

SENTENCING JUDGMENT

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

1Kevin Barreau was convicted after trial of four offences committed against A.D. during the summer of 2017. They can be paraphrased as follows:

(1) recruiting, transporting, receiving, holding, concealing, harbouring and exercising control over A.D. for the purpose of facilitating her exploitation, contrary to s. 279.01;

(2) receiving a financial or other material benefit, namely a sum of money and sexual services, knowing that it was obtained by the commission of an offence under s. 279.01(1), contrary to s. 279.02

(3) procuring A.D. to offer or provide sexual services for consideration, contrary to s. 286.3

(4) knowingly advertising an offer to provide sexual services for consideration, contrary to s. 286.4

B. THE CIRCUMSTANCES OF THE OFFENCES

2The trial judgment, R. v. Barreau, [2023] O.J. No. 2264, sets out my detailed findings of fact as concerns the circumstances of the offences committed by Mr. Barreau.

3Briefly put, in the summer of 2017, Mr. Barreau, then 20 years old, met A.D. who was 19 years old at the time. He convinced her to begin selling sexual services. He told her how lucrative it was and sold the notion to her as a sort of partnership.

4He began advertising her services, often offering services she did not want to perform. He threatened violence and humiliation if she did not perform up to his expectations and he kept all the proceeds of her work. On one occasion he slapped her when she reached out to touch his face.

5Mr. Barreau arranged where she would work and to whom she would sell her sexual services and for how much. He pressured her to work even when she was ill.

6Whenever she complained he would get angry. Mr. Barreau imposed a “three strike” system where after three strikes A.D. would be punished. One such punishment involved forcing her to do 20 push ups and then suck his toes. He threatened to stick her face in his feces.

7Mr. Barreau was the boss of the sex work operation, and A.D. felt she needed his permission to spend any of the money she had earned, even for condoms or a cheap dress. She would sometimes ask permission to take a shower. In referring to a particular text she wrote to him, A.D. explained that she felt she had to ask Mr. Barreau for permission to take a break from working. He forbade her from having any black clients.

8This “relationship” between Mr. Barreau and A.D. lasted approximately one month.

C. THE IMPACT OF THE OFFENCES ON THE VICTIM

9A.D. prepared a Victim Impact Statement and read it aloud at the sentencing hearing.

10She describes how her involvement with Mr. Barreau left her broken and alone. She was unable to properly enrol in what was supposed to be her first year of university. Her school performance has suffered from an inability to concentrate. She wants to become a lawyer but fears that her compromised academic performance may make that impossible.

11She suffers lasting anxiety and shame. She is untrusting and unable to develop normal social or intimate relationships. She has required counselling, which is ongoing.

12She has been diagnosed as having borderline personality disorder. She has self-harmed and contemplated suicide. She is on a course of anti-depressant medication. She also suffers from genital herpes which she attributes to her sex work in the summer of 2017.

D. THE CIRCUMSTANCES OF THE OFFENDER

13Mr. Barreau’s personal history and current circumstances were fully presented by way of counsel’s submissions and a report entitled “Impact of Race and Culture Assessment” re Kevin Barreau, prepared by Dr. Camisha Sibblis, which was made an exhibit on the sentencing hearing. Dr. Sibblis explains the role and objectives of such a report as follows:

An Impact of Race and Culture Assessment (IRCA) evaluates how systemic racism and cultural factors impact an individual’s experiences and interactions with the criminal justice system. IRCAs were developed in recognition of the need to understand the unique challenges faced by individuals from racialized communities, particularly in the context of the criminal justice system. These assessments provide context to the court, highlighting the influence of racial and cultural dynamics on the individual's behavior and circumstances.

The objective of this IRCA is to explore and document the cultural and racial context of Kevin Barreau's life. This includes an examination of his personal history, family dynamics, community environment, and experiences with systemic racism. The report aims to provide a comprehensive understanding of how these factors have influenced Kevin's behavior and interactions with the criminal justice system.

14Ms. Newhouse does not dispute the factual and statistical findings in the report.

15The reader of this judgment should consult the report for a complete understanding of Mr. Barreau’s personal circumstances. I merely highlight the following:

16Mr. Barreau was 20 years old and with no criminal record when he committed these offences. He has not been convicted of any crimes since and is now 27 years old. Mr. Barreau currently lives with his mother in Pointe-aux-Trembles, Quebec, and they have a good relationship.

17He was born into the Congolese community in Montreal on January 15, 1997. His biological father was murdered in March of that year. This left his Haitian born mother to raise her children alone until she got married in 2013 to a man who, it is reported, was unkind to her and her children. Mr. Barreau also suffered as he witnessed his mother withdraw emotionally from the family.

18Mr. Barreau’s family at first lived in Lachine, which was a healthy and supportive environment. During his elementary school years, they moved to Montreal North, also known as “the Block”, an area perceived as a “ghetto” due to the presence of violent gangs and socio-economic disadvantage. He experienced anti-black racism at school and in the community.

19Mr. Barreau was exposed to community violence, drug use, prostitution, and theft. He also witnessed a heavy police presence. His mother had cancer. Over the ensuing years Mr. Barreau experienced significant poverty but began to excel at basketball as early as the third grade. His aspirations were thwarted at the CEGEP level, however, by academic shortfalls caused by financial instability at home that forced Mr. Barreau to work two jobs while going to school. He also suffered from a bad relationship with one certain basketball coach.

20At age 18 years, economic pressure caused Mr. Barreau to resort to credit card fraud as a significant source of income.

21Mr. Barreau is currently employed at a barbershop, handling marketing, and finding celebrity or wealthy clients for the business. He aspires to start an online home hardware business.

22Mr. Barreau has been diagnosed as clinically depressed and has been prescribed medication to treat it. He has also been diagnosed with ADHD and has developed a dependence on alcohol over the course of his extended trial process. He has been seeing a therapist (Joanne Smith) for the last several months.

23Friends and members of Mr. Barreau’s family speak highly of him, saying he is religious, kind, and generous. They all believe that Mr. Barreau requires guidance and mentoring, neither of which he had growing up.

24It is worth excerpting some of the concluding remarks of the report:

The influence of anti-Black Racism through factors such as socio-economic disadvantage: immigration, living in social housing, growing up primarily with a single parent, struggling in school, and hardships in relationships and everyday life have shaped Mr. Barreau’s life and his experiences. These experiences are interconnected and consistent with the experience of many Black people in Canada in the following ways:

• one quarter of Black women in Canada live below the poverty line (as compared to 6% white Canadians) and 47% of continental African children live in poverty- which speaks to the systemic disadvantage of Black people, Black women, and Black immigrants
• low-Income neighbourhoods have poorer access to community health services/hubs and Recreation/community programming
• Black students are largely disengaged by the Canadian curriculum which does not reflect their identities or affirm their presence in an integrated, positive or substantial manner

Due to the systemic and institutional impediments listed above, Black males like Mr. Barreau are particularly vulnerable to poor academic outcomes, unemployment, lower wages, and criminalized behaviour. These factors are consistent with the broader issue of systemic discrimination in the lives of Black people in particular and reveal the largely normalized anti-Black racism entrenched in Canadian institutions, policies, and practices. The disproportionality of Black persons affected by similar, intersecting, issues, including early onset of violence and the resulting lack of confidence in police, and systemic discrimination, serves to affirm their place on the margins and stifles their imagination for other possibilities.

In addition to the many criminogenic factors in Mr. Barreau’s life, it is important to note that Mr. Barreau was 20 years old at the time of his engagement with 19-year-old A.D. They were both young, impressionable, and naive. Popular discourse about Black males prevents them from being regarded and addressed as young and innocent, ascribing to them an inherent malevolence, cunning, deviance, and culpability generally not associated with their young white counterparts. This phenomenon, coined the adultification of Black males, averts the compassion, empathy, and associated lenience or tolerance that would otherwise be extended to them as youth with limited experience, wisdom, and brains that are still in the process of development.

E. THE POSITIONS OF THE PARTIES

25Ms. Doyle seeks a conditional sentence of two years less a day with a $10,000 restitution order in favour of A.D.

26Ms. Newhouse argues for a global sentence of seven (7) years.

F. THE PRINCIPLES OF SENTENCING

27The principles of sentencing are set out in Part XXIII of the Criminal Code.

28According 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.

29Further, 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."

30Section 718.2 of the Code also dictates that, in imposing sentence, the court must also apply a number of principles including the following:

• A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,
• 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.

G. THE AGGRAVATING CIRCUMSTANCES

31A.D. was a very young woman when she suffered Mr. Barreau’s indignities. Moreover, Mr. Barreau’s conduct had a very serious and lasting impact on her.

H. THE MITIGATING CIRCUMSTANCES

32Mr. Barreau has expressed some remorse, both to his therapist and to the Court, although he continues to wrongly believe that his behaviour towards A.D. was well intentioned.

33Overall, I find that his current attitude towards his offending is very mildly mitigating. While Dr. Sibblis’s report reveals that Mr. Barreau believes that the prosecution was biased against him because he is black, I do not believe that this attitude diminishes the mitigating nature of his remorse, such as it is.

34While he did strike A.D. once and threatened her with further punishment, his violent behaviour was far less serious than is seen in many offenders guilty of similar conduct.

35Mr. Barreau had no criminal record at the time he committed these offences, and he was certainly quite young at the time. Moreover, he has been offence-free during the roughly seven years he has been on bail.

36I accept Dr. Sibblis’s and Ms. Smith’s assessment to the effect that Mr. Barreau’s prospects of rehabilitation are strong.

37As detailed in Dr. Sibblis’s report, Mr. Barreau is a young black man who has experienced significant racism throughout his upbringing. That racism bears some responsibility in Mr. Barreau’s decision to embark on the criminal conduct towards A.D., although it does not reduce the seriousness of the crimes committed.

38I find that there is not a significant risk that Mr. Barreau will reoffend.

I. THE RELEVANT PRECEDENTS

39It is a well settled principle of criminal law that similar sentences should be imposed on similar offenders for similar offences in similar circumstances. Criminal Code, s. 718.2(b); R. v. Lacasse, 2015 SCC 64 at para 2.

40There is a wealth of relevant jurisprudence in Ontario. The parties submitted several decided cases for my consideration. None of the cases is entirely on point but taken together they help define a range of sentence for the offences committed by Mr. Barreau. The range is a broad one because of the myriad ways these offences can be committed. Generally speaking, human trafficking will attract a sentence in the range of 4-8 years with departure from that range where circumstances support it. R. v. Gardner, 2020 ONSC 5954; R. v. Jordan, 2019 ONCA 607; R. v. A.E., 2018 ONSC 471; R. v. McEwan, 2023 ONSC 1608; R. v. Lacasse, supra.

41I note that the Crown concedes that the statutory minimum sentence of four years for human trafficking is unconstitutional. R. v. McEwan, supra.

42Ms. Doyle relies principally on the following cases: R. v. Joseph, 2020 ONCA 733; R. v. Williams, 2023 ONSC 4648; R. v. Meshreky, 2019 ONCJ 374 and R. v. Musara, 2023 ONSC 97.

43Ms. Newhouse relies principally on the following cases: R. v. Myers, 2023 ONSC 1015; R. v. Gardner, 2020 ONSC 5954; R. v. Mascoe, 2020 ONCA 706; R. v. Senoubari Abedini [2019] O.J. No. 6947, aff’d 2020 ONCA 520; R. v. Jean, 2020 ONSC 624; R. v. Jordan (unreported, Brampton SCJ, 2018) aff’d 2019 ONCA 607; R. v. Salmon, 2019 ONSC 1547; R. v. Lopez, 2018 ONSC 4749; R. v. A.E., 2018 ONSC 471.

44Helpful summaries of these cases were provided and filed by both parties.

45Ms. Doyle argues that the authorities relied upon by the Crown share common aggravating features that are absent in Mr. Barreau’s case, including accused with lengthy criminal records, lengthier periods of exploitation, sexual violence and more serious/sustained physical violence, and the involvement of guns and drugs.

46Ms. Newhouse points out that none of the cases presented by Ms. Doyle are human trafficking cases and thus deal with sentencing of less serious offences.

J. DISCUSSION

47As the Court of Appeal recognized in R. v. Gallone, 2019 ONCA 663, at paras. 91-93, Parliament has chosen to treat the commodification of sexual services as criminal on the basis that prostitution is inherently exploitive and "those who sell their own sexual services [are] victims who need support and assistance, rather than blame and punishment".

48In R. v. Lopez, 2018 ONSC 4749, Justice Ken Campbell summarized the "inherently exploitive, coercive and controlling actions of pimps in relation to prostitutes" in this way (at para. 52):

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 traffick in the human resources of prostitutes, callously using their sexual services as an endlessly available commodity to be simply bought and sold in the marketplace. Accordingly, pimps have been aptly described as a "cruel, pernicious and exploitive evil" in contemporary society.

49Also in Lopez, Campbell J. listed (at para. 53) the various factors, gleaned from the sentencing jurisprudence, that are to be considered in arriving at an appropriate sentence that fits the circumstances of the case. Those factors include:

1. The degree of coercion or control imposed by the pimp on the prostitutes' activities;
2. The amount of money received by the pimp and the extent to which the pimp allowed the prostitutes to retain their earnings;
3. The age and number of the prostitutes;
4. Any special vulnerabilities of the prostitutes;
5. The working conditions in which the prostitutes were expected or encouraged to operate, including their physical surroundings in terms of soliciting and servicing customers;
6. The degree of planning and sophistication, including whether the pimp was working in concert with others;
7. The size of the pimp's operations, including the numbers of customers the prostitutes were expected to service;
8. The duration of the pimp's exploitative conduct;
9. The extent of the violence, if any, apart from that inherent in the pimp's parasitic activities;
10. The extent to which inducements such as drugs or alcohol were employed by the pimp;
11. The effect on the prostitutes of the pimp's exploitation;
12. The extent to which the pimp demanded or compelled sexual favours for himself from the prostitutes;
13. The age of the customers attracted to the services of the prostitute
14. Any steps taken by the pimp to avoid detection by the authorities; and
15. Any attempts by the accused to prevent the prostitute from leaving his employ.

50The overriding fundamental principle of sentencing is proportionality. The sentence must be proportional to the gravity of the offence and the offender's degree of responsibility. Proportionality "ensures a sentence reflects the gravity of the offence and is closely tied to the objective of denunciation, promoting justice for victims and ensuring public confidence in the justice system" while also ensuring "that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender, serving a limiting or restraining function, ensuring justice for the offender. In our criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other" R. v. Ipeelee, 2012 SCC 13 at para 37.

51There can be little doubt that the sentencing principles of paramount consideration in cases of this kind are deterrence, general and specific, and denunciation. R. v. Abedini, [2019] O.J. No. 6947 at para. 35 (aff’d 2020 ONCA 520).

52Because Mr. Barreau is a youthful first offender who has expressed some remorse, rehabilitation is also an important sentencing objective, and enhanced restraint should be used in imposing any sentence of incarceration: R. v. Priest (1996), 30 O.R. (3d) 538, [1996] O.J. No. 3369, 110 C.C.C. (3d) 289 (C.A.), at pp. 294-296; R. v. Borde (2003), 63 O.R. (3d) 417, [2003] O.J. No. 354, 172 C.C.C. (3d) 225 (C.A.), at para. 36.

53Considering the factors set out above as well as the characteristics of the offence and the offender, Mr. Barreau, I see this as a case that lies at the less serious end of the spectrum. Indeed, in the circumstances I am of the view that a sentence somewhat below the 4–8-year range is called for.

54A notional global sentence of 3 ½ years (42 months) is appropriate.

K. SENTENCE CREDIT FOR A CHARTER BREACH

55When Mr. Barreau was first apprehended by the police in Hamilton, Ontario, he was eventually released without charges some 40 minutes later. But, as I found at trial, he was denied access to counsel, even though he expressly asked for access to counsel when informed of his 10(b) Charter rights.

56A sentence reduction is an available remedy for a violation of an accused’s Charter rights during investigation and arrest. See R. v. Nasogaluak, 2010 SCC 6.

57Depriving Mr. Barreau of his right to access counsel was a serious Charter breach, but in my view, the sentence credit for the breach must be proportional to the impact of the breach on Mr. Barreau. It is important to note that no evidence was collected from him during the 40-minute period he was deprived of access to counsel. There was no attempt by the police to interrogate him. That said, I have no doubt that Mr. Barreau suffered some anxiety and anguish as a result of being deprived of the advice of counsel while in police custody. This impact constituted an additional punishment of Mr. Barreau such as to support some credit on sentence. R. v. Griffith, 2021 ONCA 302 at paras. 82-89.

58Mr. Barreau will receive a two-month credit for this Charter breach.

L. CONCLUSION

59The global sentence of 40 months will be apportioned as follows:

Count 1 (Human Trafficking): 40 months Count 2 (Receiving a material benefit): 12 months concurrent Count 3 (Procuring): 12 months concurrent Count 5 (Advertising): 6 months concurrent

60The parties agree that the following ancillary orders should be made:

• A restitution order to A.D. in the amount of $10,000;
• Forfeiture of Mr. Barreau’s cell phone and $1600 in cash and the other items of identification in someone else’s name seized from him;
• A non-communication order under s. 743.21 re A.D.; and
• A s. 109 order for 10 years.