WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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) 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.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) 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.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(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.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

DATE: 20221208 DOCKET: C66950

Roberts, Zarnett and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

Jemaal Wilson Appellant

Counsel: John M. Rosen, for the appellant Caitlin Sharawy, for the respondent

Heard: May 18, 2022

On appeal from the conviction imposed on January 18, 2018 by Justice Grant R. Dow of the Superior Court of Justice, sitting without a jury, and the sentence imposed on October 25, 2018.

Roberts J.A.:

Overview

[1] After a five-day judge alone trial, the appellant was convicted of having committed six offences against the complainant, P.L., when she was 16 to 17 years old: trafficking a person under the age of 18 (“human trafficking”) (count 1); receiving a material benefit from the commission of an offence under s. 279.011(1) of the Criminal Code (count 2); receiving a material benefit from the commission of an offence under s. 286.1(2) of the Criminal Code (count 5); making child pornography (count 8); distributing child pornography (count 9); and procuring (count 10). He received a global sentence of seven years in custody, less 95 days pre-sentence custody, to be served consecutively to an unrelated sentence for manslaughter.

[2] The appellant appeals both his convictions and sentence. He submits that the trial judge made material reversible errors of law in his consideration of the human trafficking and procuring offences and in his treatment of P.L.’s credibility. Specifically, he argues that the trial judge erred in convicting him of the human trafficking offences on modes of conduct that were not particularized in the indictment and that he conflated “purpose” with “facilitation” when considering the mens rea element of the offence. He challenges his sentence as unfit, arguing that the trial judge erred in his consideration of a subsequent manslaughter offence as an aggravating factor and in failing to apply the totality principle and Kienapple v. R., [1975] 1 S.C.R. 729.

[3] The Crown concedes that an acquittal should be substituted for the procuring conviction and that, if the conviction appeal is otherwise dismissed, the conviction on count 5 should be conditionally stayed in accordance with Kienapple. With respect to the human trafficking conviction, the Crown submits that the offence was made out as particularized but, alternatively, that the indictment should be amended because it would cause no prejudice to the appellant. The Crown argues that the other convictions and sentence are amply supported by the trial judge’s findings and the record, and that the appeals should, except as conceded, be dismissed.

[4] These reasons explain why, except as conceded by the Crown and except to clarify that pre-sentence custody applies to each of the seven-year sentences imposed on all counts, I would otherwise dismiss the appeal on conviction and sentence.

Facts

(1) Background

[5] P.L. was born in August 1997. For many years, she has experienced epileptic seizures and takes medication to stabilize her condition. Now 25 years old, she went through very troubled adolescent years. She regularly became high on illicit drugs and began running away from home from about the age of 13 to escape parental control. When she was around 15 years old, she worked briefly in the sex trade with the assistance of “J.” before returning home. In 2012, she gave a statement to police that led to the arrest of J., who pled guilty to aiding and abetting P.L. to engage in sex work.

[6] At around the age of 16, P.L. left home again. In around October 2013, she resumed working in the sex trade with the assistance of “Brown”, the appellant’s brother. After working with him for a few months, in around March 2014, she was introduced by Brown to the appellant in a hotel room. The two went alone into the bathroom where the appellant asked her if she was serious about working as a sex trade worker and whether she “wanted to make money with him”. She agreed and started working with the appellant. She told the appellant she was not younger than 18 years of age. A few weeks after their first meeting, they became romantically involved and sexually intimate. P.L. described them as “girlfriend boyfriend”, together “24-7”. She testified that for about the first six months, their relationship felt like a “partnership”, with her keeping most of the money she earned from clients. She felt deeply in love with the appellant. During that time, while the appellant suggested quotas for the number of clients she would see, he would ask her what she thought was reasonable.

[7] P.L. described how their relationship changed after her 17th birthday in August 2014: “instead of like feeling like a princess, I kind of started to feel like, like a ho.” She testified that the appellant had less patience and became more aggressive. He started to have relationships with other women. He was “hard” on P.L. about making more money. He told her to lower her rates to get more clients and she agreed. He set quotas for the number of clients she had to see in a day. The appellant held onto all her money from clients and would buy her what she needed or only give her a small amount of money. When she tried to take her money without asking, the appellant would become angry. They had physical confrontations that she sometimes initiated where the appellant would push her and pin her down. To avoid making the appellant angry, P.L. would remain “high” on drugs provided by the appellant. The appellant sometimes told her that she “[had] to make this amount of money so [she could] eat tonight” and made her feel that she was “working for [her] survival”. It got to the point that she was “working 24-7”.

[8] According to P.L., the appellant would arrange transportation, usually taxis or buses, to the cities and the hotels and motels where he decided P.L. would meet clients, often places P.L. did not know. He stayed in the bathroom of the rented room while P.L. was with clients. On at least one occasion, P.L. tried to leave Hamilton by running away in a mall, but one of the other women in their group found her hiding in a bathroom and the appellant held P.L. while the other woman struck her.

[9] The appellant learned P.L. was under the age of 18 when they were stopped and asked for identification. He continued to take and post explicit photos of her and post advertisements offering her services to clients on Backpage. On multiple occasions, in hotel rooms, the appellant took photos of P.L. wearing undergarments or nude, instructing her to strike sexualized poses. He sent nude photos that he had taken of P.L. to potential clients. The appellant made arrangements for clients to see P.L. Once, without telling P.L., the appellant arranged for a client to carry out a “rape fantasy” which only ended when P.L. called out for the appellant’s help.

[10] On February 16, 2015, police found the appellant with P.L. and another woman who appeared to be a teenager at the Idlewood Inn Motel in Scarborough, a place known for sex trade work. The appellant and P.L. were arrested and charged. P.L. was released and returned home to her mother and stepfather.

[11] On April 16, 2015, three men came to P.L.’s house. They knocked repeatedly on the door, and one of the men insisted that P.L. return the cellphones that belonged to his brother, the appellant. P.L.’s stepfather refused to open the door. When he looked through the door’s peephole, he saw that one man had a gun in his waistband. Through the kitchen window, he also observed a champagne-coloured Mercedes-Benz vehicle, similar to the one driven by the appellant’s brother, Brown. Eventually, the men left. P.L.’s stepfather testified that P.L. was terrified and lost bladder control as a result of her fear.

[12] The next day, P.L. and her stepfather went to the police and gave video recorded statements.

(2) Convictions and global sentence

[13] The appellant did not testify. The trial judge convicted the appellant of six of the ten charged offences, largely on the basis of his acceptance of the complainant’s evidence that the appellant, knowing that she was under 18 years of age, assisted and exploited her engagement in sex trade work by providing hotel rooms, advertising, transportation, cell phones, cosmetics and food, taking her money, influencing her movements by choosing locations and modes of transportation, and taking, posting and sending to clients explicit, nude photographs of the complainant. With respect to the human trafficking charge (count 1), the trial judge was not persuaded that the Crown had made out “exercise control” but found that the appellant had “transported” the complainant and “exercised influence” over the complainant and that he had “facilitated” P.L. conducting sex trade work “by renting hotel or motel rooms for her”.

[14] The trial judge imposed a global sentence of seven years concurrent on all six convictions, less credit for pre-trial custody of 95 days (a net sentence of 79 months). He concluded that the seven-year sentence “recognizes the mandatory minimum for two of the six convictions and that the additional four convictions cannot be ignored or reduced to no additional time of imprisonment.” He found there were few mitigating factors, other than the youthful age of the appellant, his achievement of a high school diploma and one college course while in pre-trial custody, and the support of his girlfriend and sister. Among the aggravating factors that he considered, the trial judge referenced the appellant’s conviction for manslaughter on August 23, 2018, following the commission of the offences in this case. While giving primary consideration to the sentencing principles of denunciation and deterrence for offences involving a person under the age of 18, the trial judge considered the “totality” principle and recognized that “the combined sentence should not be unduly long or harsh.” He concluded that “[t]hese convictions warrant a sentence longer than just the mandatory minimum when being served concurrently.” He ordered the seven-year sentence be served consecutively to the appellant’s unrelated sentence for manslaughter.

Issues

[15] On the conviction appeal, the appellant asserts the trial judge made the following reversible errors, warranting a new trial:

i. The trial judge erred in his analysis of the elements of the offences for both human trafficking and procuring in relation to the convictions on counts 1 and 10;

ii. The trial judge failed to properly assess the credibility of the complainant with respect to all six convictions.

[16] With respect to the sentence imposed, the appellant argues that:

i. The sentences imposed were unfit;

ii. The trial judge erred by treating the manslaughter conviction as an aggravating factor;

iii. The trial judge erred by failing to apply the totality principle having regard to the 69 months remaining to be served on the manslaughter conviction;

iv. The trial judge failed to apply the principles in Kienapple to stay the conviction on count 5.

[17] The Crown concedes that the conviction on count 10 should be set aside because it was not supported by the evidence, and that the conviction on count 5 should be stayed in accordance with Kienapple if the convictions on counts 1 and 2 are upheld. The Crown agreed that count 2 would fall in the event that count 1 were overturned.

[18] It is unnecessary to further address the issues that were subject to the Crown concessions. I turn now to the remaining issues on this appeal.

Analysis

(1) Conviction Appeal

(a) Did the trial judge err in his analysis of the elements of the human trafficking offence?

[19] The appellant submits that the trial judge erred in his analysis of the human trafficking offence in two ways. First, he erroneously convicted the appellant on a mode of conduct under s. 279.011(1) of the Criminal Code that was not particularized by the Crown in the indictment. Second, he incorrectly directed himself on the fault element of the offence, conflating facilitation with purpose.

(i) Elements of the trafficking offence

[20] The relevant provisions of the human trafficking offence under s. 279.011(1) for the purposes of this appeal are as follows:

s. 279.011 (1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person under the age of eighteen years, or exercises control, direction or influence over the movements of a person under the age of eighteen years, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence [.]

[21] The Crown must prove the following elements beyond a reasonable doubt: (1) the conduct (“recruits… exercises control, direction or influence”); (2) the prohibited group (a person under the age of 18); and (3) the purpose (exploiting or facilitating the exploitation of the prohibited group): R. v. A.A., 2015 ONCA 558, 327 C.C.C. (3d) 377, at paras. 79-82; R. v. Gallone, 2019 ONCA 663, 147 O.R. (3d) 225, at paras. 17, 33.

[22] Count 1 of the indictment did not include all the statutory modes of conduct listed under s. 279.011(1) but was limited to “exercise control over the movements” of the complainant.

[23] The trial judge found that the Crown had proven all three elements of the offence beyond a reasonable doubt. However, as the following underlined portion of the trial judge’s reasons indicates, he rejected “exercise control” as a proven mode of conduct and found that the appellant had committed the offence through other statutory modes of conduct that were not particularized in the indictment:

The first count under section 279.011(1) is known as trafficking of a person under the age of 18 years. For the purposes of the facts before me, the initial element included the word “transports” as well as the phrase “influence over the movements”. Were the offence restricted to “recruits” or holds, or exercise “control”, I would have little difficulty in finding [the appellant] not guilty as [the complainant’s] own evidence was that she willingly began prostituting with [the appellant’s] assistance. However, the offence is defined more widely. As a result, my finding of fact results in the Crown having proven the first element of this offence. [The appellant] was responsible for transporting [the complainant] to different locations in Scarborough, Brampton and Hamilton to conduct prostitution. Further, I find that he exercised influence over her movements. Transportation and the choice of the location was [sic] determined by [the appellant]. [Emphasis added.]

[24] The appellant submits that the trial judge erred by relying on modes of conduct from s. 279.011(1) that were not included as particulars of the offence in the indictment. According to the appellant, the trial judge’s finding that he would have acquitted the appellant if the offence had been restricted to “exercise control” was not the product of a definitional error respecting the meaning of “control” but flowed from his assessment of the evidence in accordance with the correct test to which he was directed. The trial judge therefore found that the Crown had failed to make out the offence that was particularized to “control” in the indictment. The appellant submits that he was prejudiced by the trial judge’s reliance on the other modes under the section that were not particularized in the indictment.

[25] The Crown submits that the evidence at trial proved control as particularized beyond a reasonable doubt, and that had the trial judge applied the correct legal standard for control to the facts he accepted, control would have been made out. In the Crown’s submission, the trial judge’s focus on the complainant’s initial willingness to engage in sex trade work and the options available to her to return home set up too stringent of a test.

[26] The Crown submits in the alternative that in accordance with this court’s broad amendment powers, the indictment should be amended to include “direction or influence” over the complainant’s movements. The amendment would not change the substance of the charge in any material way and the defence strategy would not have changed. Therefore, there would be no prejudice to the appellant.

[27] I agree with the Crown that the trial judge fell into analytical error by applying an overly narrow definition of control limited to complete physical control over the movements of the complainant. On the facts the trial judge accepted, the Crown had proven the offence of human trafficking as particularized beyond a reasonable doubt.

[28] Control does not necessarily mean complete physical control over or the absence of any choice by the complainant and can also refer to psychological coercion. As this court clarified in Gallone, at para. 50, while the terms, “control”, “direct” and “influence” involve different degrees of coercion, those terms all “evoke a scenario in which a person, by virtue of her or his relationship with the complainant, has some power – whether physical, psychological, moral or otherwise – over the complainant and his or her movements.” It is not necessary that control be complete, constant and absolute: R. v. Chahinian, 2022 QCCA 499, at para. 74.

[29] Here, the evidence supports both the kind of physical and psychological control that satisfies the “control” mode of conduct under s. 279.011(1), as it did, for example, in R. v. Mascoe, 2020 ONCA 706, at para. 7. The appellant controlled the complainant’s movements including by manhandling her, giving her drugs to keep her “high”, retaining her money, pressuring her to work, becoming angry with her if she wanted money or refused to work, arranging her clients and locations, preventing her from leaving the motel and hotel rooms to which he drove her, and emotionally manipulating the complainant through their romantic relationship to keep her with him and have her return to him, notwithstanding that she did return to her parents on occasion.

[30] In any event, I would permit the Crown to amend the indictment to include “direction or influence”, because doing so would not prejudice the appellant.

[31] Section 683(1)(g) of the Criminal Code permits an appellate court to amend the indictment, “unless it is of the opinion that the accused has been misled or prejudiced in his defence or appeal.” This broad amendment power at the appellate stage promotes “the determination of criminal cases on their merits”: R. v. A.S. (1998), 130 C.C.C. (3d) 320 (Ont. C.A.), at para. 4, leave to appeal refused, [1998] S.C.C.A. No. 636. It permits an amendment on appeal “where the amendment cures a variance between the charge laid and the evidence led at trial regardless of whether the amendment materially changes the charge, substitutes a new charge for the initial charge, or adds an additional charge”: R. v. Irwin (1998), 38 O.R. (3d) 689 (C.A.), at pp. 699-700.

[32] The burden is on the Crown to convince the court that the accused “had a full opportunity to meet all issues raised by the charge as amended” and that “the conduct of the defence would have been the same”: Irwin, at p. 702.

[33] In my view, the Crown has met that burden. The evidence presented and the thrust of the Crown’s submissions at trial comprised acts of direction or influence. The substance of the allegations remains the same though the description of the appellant’s culpable conduct through the amendment changes from “control” to “direction” or “influence”. This is not a case where the amendment substitutes a different offence. It cannot be argued that the appellant is prejudiced or taken by surprise or that he would have changed the manner of his defence. It is clear from the cross-examination of the complainant and the closing submissions that the defence focussed on attacking the complainant’s credibility and reliability. Defence counsel’s position was that if the complainant’s evidence was accepted, the mode of conduct was made out.

[34] As a result, I would not give effect to this ground of appeal.

(ii) Fault element

[35] The fault element of the offence of human trafficking was explained by this court in A.A., at para. 82, as follows:

The fault element of the offence consists of two components. First, the intent to do anything that satisfies the conduct requirement in s. 279.011(1). Second, the purpose for which the conduct in relation to a member of the prohibited age group is done. Specifically, s. 279.011(1) requires that the accused act with the purpose of exploiting or facilitating the exploitation of that person. The purpose element in s. 279.011(1) extends beyond the intentional conduct that is the actus reus of the offence to what could be described as the object an accused seeks to attain, or the reason for which the conduct is done or the result intended. [Emphasis in the original.]

[36] The appellant submits that the trial judge misconstrued facilitation as purpose without determining whether the appellant did what he did in order to exploit or facilitate the exploitation of P.L. and failed to consider and apply the definition of exploitation as informed by the provisions of s. 279.04.

[37] I am not persuaded by these submissions.

[38] Per s. 279.04, a person exploits another person if they:

(1) Cause them to provide or offer to provide, labour or service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.

(2) In determining whether an accused exploits another person under subsection (1), the Court may consider, among other factors, whether the accused

(a) used or threatened to use force or another form of coercion;

(b) used deception; or

(c) abused a position of trust, power or authority.

[39] As this court observed in A.A., “[i]n cases where exploitation, as defined in s. 279.04, arises from the facts, inferring that the accused’s purpose was to exploit the victim will usually be a relatively straightforward task”: at para. 87. See also: Gallone, at para. 54; R. v. Sinclair, 2020 ONCA 61, 384 C.C.C. (3d), 484, at para. 12.

[40] The trial judge’s reasons concerning the fault element are as follows:

The third element of this offence involves exploiting the person under the age of 18 years or facilitating the exploitation. I find [the appellant] facilitated [the complainant] in conducting prostitution by renting hotel or motel rooms for her as occurred for example on February 16, 2015 when Officer Rees obtained the registration card for room 105 at the Idlewood Inn Motel as agreed on and marked as Exhibit 3.

[41] The trial judge’s reasons on this issue must be viewed in the context of the entirety of his reasons, including his findings about the appellant’s controlling conduct that went beyond merely renting hotel or motel rooms and its effect on P.L. who was financially and emotionally dependant on the appellant. The evidence clearly establishes the appellant’s actual exploitation of P.L.; inferring that his purpose by his conduct was to exploit or to facilitate the exploitation of P.L. is a “straightforward task”.

[42] The appellant further submits that the trial judge erred in finding that the fault element was made out because he failed to consider whether the appellant’s conduct gave rise to a reasonable expectation that P.L. believed that her safety or the safety of a person known to her would be threatened if she failed to continue in the sex trade.

[43] I disagree. As this court observed in A.A., at para. 70, “exploitation” does not require that a person’s safety actually be threatened. Nor is “safety” limited to being protected from only physical harm but also includes psychological harm: A.A., at para. 71. In Sinclair, at para. 15, this court set out a long list of circumstances that might be relevant when assessing whether conduct could reasonably be expected to cause a complainant to fear for their safety:

“the presence or absence of violence or threats; coercion, including physical, emotional or psychological; deception; abuse of trust, power, or authority; vulnerability due to age or personal circumstances, such as social or economic disadvantage and victimization from other sources; isolation of the complainant; the nature of the relationship between the accused and the complainant; directive behaviour; influence exercised over the nature and location of the services provided; control over advertising of services; limitations on the complainant’s movement; control of finances; financial benefit to the accused; and use of social media to assert control or monitor communications with others.”

[44] Most, if not all, of the factors outlined in Sinclair are present in this case. The trial judge was alive to them. There was no dispute that the appellant and the complainant were involved in an intimate relationship, that the complainant was underage, and that the appellant became aware of it, that the complainant had a difficult relationship with her family and suffered epileptic seizures, that the appellant advertised the complainant’s services, and that the appellant retained the complainant’s money and decided how to use it. The trial judge also found that the appellant spoke aggressively to the complainant about the need to make more money. In sum, the appellant’s controlling behaviour and his emotional manipulation of P.L. and her personal circumstances, including her physical and emotional vulnerability, her young age, and her unstable home life, gave rise to the reasonable expectation that the appellant’s conduct caused P.L. to offer the sex trade services because she feared for her safety.

[45] I would dismiss this ground of appeal.

(b) Did the trial judge err in his treatment of P.L.’s credibility?

[46] I would not accede to this ground of appeal. As the appellant’s counsel fairly conceded, the trial judge understood the issues of credibility and was aware of the frailties in the complainant’s evidence. Probably because of those frailties, he did not accept all of the complainant’s evidence and was very specific about which parts of her evidence he did accept, which resulted in the appellant’s acquittal on four charges. The appellant has not pointed to any reversible error in the trial judge’s credibility findings.

(2) Sentence Appeal

(a) Did the trial judge err in failing to apply the totality principle?

[47] In August 2018, shortly before the sentencing in this matter, the appellant had been sentenced to 10.5 years for manslaughter, less credit of 57 months for pre-trial custody, resulting in a net sentence of 69 months. The appellant submits that the trial judge erred in making the sentence for the convictions consecutive to the 69-month sentence for manslaughter because this resulted in a sentence of twelve years and six months for someone who had never been in custody, which the appellant argues is a crushing sentence. The appellant concedes that the aggravating and mitigating factors in his case warrant a seven-year sentence but argues that the application of the totality principle should reduce that sentence to five years.

[48] I am not persuaded by these submissions. The trial judge took into account the totality principle. Counsel addressed whether the sentence should be consecutive or concurrent with the manslaughter conviction. The trial judge had broad discretion to impose consecutive sentences. The sentence is not crushing. I would therefore not accept this ground.

(b) Did the trial judge err in considering the appellant’s subsequent manslaughter conviction as an aggravating factor?

[49] The appellant submits that the trial judge incorrectly treated the appellant’s subsequent conviction for manslaughter as an aggravating factor, and that the global sentence should therefore be reduced to five years.

[50] The Crown agrees that the subsequent manslaughter conviction could not be used as an aggravating factor on sentence but maintains that even if the trial judge used it as an aggravating factor, the seven-year sentence was nevertheless fit. In any event, the trial judge erred in finding as a mitigating factor that the complainant willingly entered the sex trade. This enured to the appellant’s benefit and counterbalanced any aggravating effect from the trial judge taking into account the appellant’s subsequent manslaughter conviction.

[51] I agree that it would have been an error for the trial judge to treat the appellant’s subsequent manslaughter conviction as an aggravating factor on sentencing. However, I am also of the view that even if he had, it had no impact on sentence and the global seven-year sentence is fit and should not be altered. Seven years falls within the range for human trafficking and child pornography. The Supreme Court in R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, makes it very clear that offences against children require more severe sentences and that deterrence and denunciation should be the paramount focus on sentencing for those offences: see, for example, paras. 101, 107. There were many aggravating circumstances in this case. The appellant exploited the complainant’s vulnerability, the isolation from her family, her lack of education, troubled background, young age, and romantic attachment to the appellant. The length of time of the trafficking, the high number of clients, the large sums of money taken by the appellant, the simulated rape that the appellant organized without the complainant’s knowledge, the use of psychological coercion against the complainant, and his criminal record, are all aggravating circumstances.

[52] By contrast, there were few mitigating circumstances beyond family support and the appellant’s relative youth at the time of the offences. While not aggravating, the appellant’s re-offending while in custody, as well as his subsequent conviction for manslaughter, speak to the lack of his rehabilitation potential as a mitigating factor.

[53] While this is a lengthy first penitentiary sentence, it is warranted in the circumstances of this case.

(c) Did the trial judge err in imposing a seven-year sentence for all convictions?

[54] The trial judge imposed a global seven-year sentence for all six counts to be served concurrently, reasoning that “[t]his recognizes the mandatory minimum for two of the six convictions and that the additional four convictions cannot be ignored or reduced to no additional time”.

[55] Although it appears from the indictment that the trial judge intended the credit for pre-trial custody to be applied to each sentence imposed on each count, the parties advised that due to clerical error, the credit of 95 days was erroneously applied only to the sentence on count 1. I agree that pre-trial custody should be applied to the sentences for all six counts.

[56] I would not otherwise interfere with the seven-year sentences imposed on all of the six counts.

[57] As this court stated in R. v. J.H., 2018 ONCA 245, while not necessarily an error in principle, “[t]he practice of not differentiating between the various counts in terms of the sentence imposed makes it difficult for this court, on appeal, to properly address the appropriate sentence should an appeal succeed on some, but not all, of the convictions”: at paras. 50-51. Where the conduct underlying the counts differs in seriousness such that the offences might attract different sentences, the sentencing judge ought to explain why concurrent sentences of equivalent length were imposed: J.H., at para. 51. That said, it is not an error in principle for a sentencing judge “to determine a global sentence first and then to impose concurrent sentences of equal length” because “[c]oncurrent sentences can reflect a trial judge's view that the offences were “sufficiently interrelated to merit concurrent dispositions”: R. v. Taylor, 2010 MBCA 103, 263 C.C.C. (3d) 307, at para. 12. And, the determination of whether sentences should run concurrently or consecutively is entitled to deference: R. v. McDonnell, [1997] 1 S.C.R. 948, at para. 46; J.H., at para. 50. The question is whether, absent reversible error, the global sentence is appropriate and fit: J.H., at para. 52.

[58] In this case, for the reasons already given, seven years, less pre-sentence custody, is an appropriate and fit global sentence. The success of the appeal on counts 5 and 10 does not affect the fitness of the global sentence. While it would have been preferable for the trial judge to set out his reasons for imposing concurrent seven-year sentences on each count, the failure to do so does not amount to an error in principle nor affect the fitness of the global sentence.

[59] Other than to clarify that pre-sentence custody applies to the sentences on all of the counts, I would not otherwise disturb the sentence.

Disposition

[60] The conviction under s. 286.3(2) of the Criminal Code (count 10) should be set aside and an acquittal entered.

[61] The conviction under s. 286.2(2) of the Criminal Code (count 5) should be conditionally stayed in accordance with Kienapple.

[62] I would otherwise dismiss the conviction appeal.

[63] Except to clarify that pre-sentence custody must be applied to each of the seven-year sentences imposed on all the counts, I would otherwise dismiss the sentence appeal.

Released: December 8, 2022 “L.R.” “L.B. Roberts J.A.” “I agree B. Zarnett J.A.” “I agree S. Coroza J.A.”