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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 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

(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.

Court Information

Location: Toronto

Date: 2018-03-02

Court: Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Tyrone Burton

Before: Justice Mara Greene

Reasons for Judgement released: March 2, 2018

Counsel:

• M. McRae for the Respondent
• C. Langdon for the Applicant

Judgment

M.B. Greene J.:

[1] Application for Dangerous Offender Designation

[1] This is an application by the Crown for an Order that Mr. Burton be designated a dangerous offender and that he be sentenced to an indeterminate sentence. Counsel for Mr. Burton opposes this application.

[2] Background and History

[2] This case has a very long history, much of which has been reviewed in my earlier decisions but I will briefly review some of that history here. Mr. Burton had a trial in the Ontario Court of Justice where he was found guilty on May 21, 2014 of two counts of Human Trafficking, two counts of receiving a material benefit from human trafficking, two counts of withholding documents, two counts of exercising control and one count of obstruct justice by Justice Cavion. Justice Cavion was unable to continue sitting after concluding this trial and as a result, Mr. Burton's sentencing hearing began before me. In addition to there being a change in judge on this matter for the sentencing hearing, Mr. Burton discharged his trial counsel and retained new counsel for the sentencing hearing. This also caused some delay. Further delays occurred in this case at the request of counsel while they sought to secure Mr. Burton's youth records and jail records. Time was also required to litigate a host of issues prior to commencing the actual dangerous offender application including a) whether the offences before the court are serious personal injury offences b) whether an assessment should be ordered and c) whether the doctrine of issue estoppel applies to the 1998 finding of guilt on Mr. Burton's youth record. In my decision of February 23, 2016, I found that the offences of human trafficking as committed by Mr. Burton are serious personal injury offences. In my decision of May 16, 2016 I found that an assessment pursuant to section 752.1(1) of the Criminal Code should take place. Once the order for the assessment was made, the assessment itself took some time. The case also was on hold while the Crown awaited the consent of the Attorney General. Further delay took place after this because of the unavailability of expert witnesses and due to personal circumstances of counsel for Mr. Burton. It is troubling indeed that Mr. Burton has now spent five years in custody waiting for his matter to conclude. I note, however, that there were exceptional circumstances causing much of the delay. The end result, however, is that there were lengthy gaps in hearing the evidence on the dangerous offender application which makes a review of the evidence, in particular the psychiatric evidence all the more difficult.

[3] The issue before the court now, some five years after Mr. Burton's arrest, is whether he should be designated a dangerous offender.

Review of Evidence at this Proceeding

The Predicate Offence

[4] In my reasons for judgment on whether the offences of Human Trafficking as committed by Mr. Burton met the definition of a serious personal injury offence dated February 23, 2016, I reviewed in detail the predicate offence. I stated as follows at paragraphs 16-19:

16. As noted above, Justice Cavion convicted Mr. Burton of a number of offences including two counts of trafficking in persons (otherwise referred to as human trafficking). In reaching his verdict, Justice Cavion made a number of findings of fact about what took place:

a) In the year prior to meeting Mr. Burton, V.C. and A.O. dabbled in prostitution with a single client;

b) A week before Christmas, 2012, V.C. and A.O. came to Toronto from Kingston to have sex with a different client for money;

c) During the above interaction, V.C. and A.O. drank a lot of alcohol;

d) Upon leaving the hotel where the act of prostitution took place, V.C. and A.O. met Mr. Burton;

e) Both V.C. and A.O. smoked cocaine with Mr. Burton;

f) After this first night, A.O. returned to Kingston but V.C. remained with Mr. Burton and fell in love with him;

g) The following day, A.O. returned to Toronto to be with V.C., who was already under Mr. Burton's control as she had fallen in love with him;

h) The day after A.O.'s arrival, the atmosphere of fear had started. Both A.O and V.C. provided their passports to Mr. Burton, were forced to clean the apartment and were advised that there were rules they had to follow;

i) During the week that followed, A.O. and V.C. worked for Mr. Burton as prostitutes at a number of different hotels;

j) Mr. Burton took all the money earned by both women;

k) Mr. Burton parsed out food, cigarettes and alcohol to the two women at his sole discretion;

l) The women had to call him "daddy" and kiss his ring;

m) The time with Mr. Burton caused V.C. to be physically ill;

n) That Mr. Burton created an atmosphere of fear and control over the women; and,

o) That the exploitation by Mr. Burton ended when a client took both women away from Mr. Burton and then a different client called the police.

17. In reaching his conclusion that Mr. Burton was guilty of the charge of human trafficking pursuant to section 279.01(1) of the Criminal Code, Justice Cavion wrote:

The question is: Did Mr. Burton exercise control, direction or influence over the movements of [A.O.] and [V.C.] for the purpose of exploiting them. No consent is valid in this charge.

18. Justice Cavion further held that the word exploitation as defined in section 279.04(1) imports "an issue of threats to safety". Later in his judgment, Justice Cavion wrote:

In section 279.04(1) the word "exploitation" is defined as "engaging in conduct that, in all 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 the…service. Clarification is provided in subparagraph 2) in determining whether an accused exploits another person…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.

He further wrote:

In my opinion, Mr. Tyrone Burton's behaviour, by any reasonable criteria adopted, showed his intention to control and did control the two girls with the concomitant element of threats and, additionally, in the case of [V.C.] by his use of deception in permitting her to think he was her boyfriend.

19. Justice Cavion ultimately concluded that while no overt threats or use of violence was imposed on V.C. and A.O. to originally encourage them to work for him, as V.C. did so out of love and A.O. did so to protect V.C., he found that once under Mr. Burton's control, he "created a context of fear and control over them, it was impossible for them to think they could walk away safely. They had no money, no place to go". He further concluded that "this was an arrangement motivated by fear of unspoken consequences of possible harm".

[5] During the hearing to determine whether or not the offence is a serious personal injury offence, I heard additional evidence from A.O. and V.C. about the harm they suffered at the hands of Mr. Burton. During this hearing, A.O. testified that she felt coerced to have sexual intercourse with Mr. Burton during this time frame. A.O. testified that Mr. Burton would comment that she must have sex with him or else he would "do anal" with her. This portion of A.O.'s evidence was not explored any further by either the Crown or the defence.

Prior Criminal History

[6] In my judgment dated May 16, 2016, I reviewed in detail Mr. Burton's prior criminal history. Much of this evidence did not change at the dangerous offender hearing and will only be summarized. The Crown did, however, call viva voce evidence about the 1998 sexual assault and failing to comply findings of guilt from when Mr. Burton was 14 years old. This is because while Mr. Burton had entered a plea of guilty to these offences back in 1999, the recording/transcript of the plea and what facts Mr. Burton actually admitted in support of the plea have been destroyed. As a result it is unknown what facts Mr. Burton admitted at the time. The Crown sought to prove a number of aggravating factors at this hearing. In support of this, the Crown called the victim of the 1998 sexual assault (A.C.), her sister (S.C.) and some police officers involved at the time.

[7] A.C. testified that on the day in question she was walking home from school with chocolates that she had planned to sell. She was 13 and new to the area, although she had already made some friends and in fact had been walking with some friends prior to being approached by Mr. Burton. According to A.C., she did not know Mr. Burton. S.C. testified, however, that Mr. Burton, while not a friend, was known to them. There was also some additional evidence that Mr. Burton and A.C. had a number of friends in common. A.C. testified that Mr. Burton approached her and knocked the chocolates out of her hand and then proceeded to open a box of chocolates. Mr. Burton then followed her home walking a few feet behind her. A.C. felt scared and intimidated. A.C. testified that Mr. Burton followed her into her building despite her attempt to close the door and prevent him from entering. Mr. Burton then followed her up the stairs and while in the stairwell he took hold of her arms, turned her towards him and touched her breasts over her clothing. He also attempted to touch her vagina but A.C. managed to escape before this could happen. She then ran to her apartment.

[8] S.C. testified that she saw A.C. walking home from school and that Mr. Burton was a few steps behind her. She further testified that her sister looked scared. S.C. further testified that a short time later, A.C. came home. Mr. Burton was with her and handed A.C. her keys. A.C. then entered the apartment and went to her room. I am unable to accept S.C.'s evidence on these points. This is because her evidence at the hearing was significantly different from her statement to the police back in 1998. In 1998, S.C. told the police that it looked to her like Mr. Burton was walking with, as opposed to behind, her sister. Moreover, back in 1998, S.C. did not tell the police that her sister looked scared when she was walking home. These important inconsistencies suggest that over time, S.C.'s recollection of the events from that day have changed significantly and have become more consistent with her sister's memory of events. This raises sufficient reliability concerns that I cannot accept S.C.'s evidence on these points.

[9] In relation to A.C.'s evidence, while it is clear that A.C. was sexually assaulted by Mr. Burton and that she suffered greatly because of it, I am unable to accept all of her evidence about how the sexual assault started. Firstly, A.C. testified that she did not know Mr. Burton, but S.C. testified that they were known to each other even though Mr. Burton was one year older. It appears they had a number of friends in common. There is also the issue of A.C.'s house keys. Mr. Burton had A.C's keys and returned them to A.C. at her door, in front of S.C., right after the sexual assault took place. A.C. did not originally mention the keys to the police and only did so after S.C. mentioned this incident. It was only upon hearing S.C. mention the keys that A.C. stated that he took her keys from the door. This contradicts her original statement of running into her apartment and slamming the door. All these inconsistencies leave me with a reasonable doubt about what took place prior to the sexual assault. I note that it is unfortunate that the transcript of Mr. Burton's plea has been destroyed. It is difficult for people to remember events 20 years after they took place, in particular when the witness was a young person at the time. I recognize that much has happened in A.C.'s life over the past 20 years and that memories fade with time. It may be that back in 1999 the above inconsistencies could have readily been explained. I cannot speculate on this, however, and am left with the record that I have now.

[10] Counsel for Mr. Burton argued that I should find that the sexual assault started as consensual kissing but became non-consensual as the event progressed. I am unable to reach this conclusion. Mr. Burton did not testify at the hearing and present this position. In some statements to prison authorities he made utterances that suggest this position, but it was not explored in detail nor was it subject to cross-examination. Given Mr. Burton's long history of being deceptive and manipulative, I place no weight on this out of court, untested assertion. When I consider all the evidence, I am unable to conclude the Mr. Burton preyed on a stranger while she was walking home from school, intimidated her and stole her chocolates before following her into a stairwell and sexually assaulting her. Given the passage of time and the record that now exists, the only finding of facts I can make beyond a reasonable doubt is that Mr. Burton and A.C. somehow ended up in a stairwell together where Mr. Burton touched A.C. in a sexual manner without her consent and that Mr. Burton followed A.C. up to her apartment to return her keys. I can also find beyond a reasonable doubt that A.C. suffered severe psychological harm because of this offence.

[11] In addition to the above findings of guilt as a young person, Mr. Burton has three additional findings of guilt as a young person including two assaults and one count of carry concealed weapon. He received short sentences for each of these offences. The assaults were both on the lower end of seriousness for this type of offence.

[12] In 2003 and 2004 Mr. Burton was charged and convicted of drug related offences.

[13] In 2004, Mr. Burton was charged with possessing a loaded firearm and other gun related offences. In relation to this latter offence, Mr. Burton was found in possession of a loaded firearm while in public. He was convicted of this offence in May of 2005 and received what was effectively a one year sentence.

[14] In 2005 Mr. Burton was also convicted of a driving related offence where he received effectively a sixty day sentence. Mr. Burton pled guilty to one count of assault in November 2005 and received a sentence of 52 days jail. In relation to this offence, Mr. Burton attended at the residence of a drug user to assist with the collection of a drug debt. To that end, he wore a shirt with a picture of a gun on it and pointed to his waistband suggesting that he had a weapon.

[15] In December of 2005, Mr. Burton was charged with using counterfeit money and failing to comply with a probation order. He was convicted of these offences in January of 2006.

[16] Approximately six months after being released from custody on the above offences, Mr. Burton was charged with a very serious sexual assault. The offence involved Mr. Burton sexually assaulting a woman while she baby-sat three children aged 6, 3 and 1. Mr. Burton dragged the victim into the washroom of the apartment and forced unprotected vaginal intercourse on her. All the while, the children were outside of the bathroom banging on the door. Mr. Burton was arrested for this offence and held in custody pending his trial. While awaiting trial, Mr. Burton's girlfriend confined the victim in a basement of a residence. Mr. Burton telephoned from the jail and spoke to the victim through a three way call with another male. While on the telephone Mr. Burton asked if the victim was going to attend court. The other male on the three-way call advised the victim that putting Mr. Burton in jail could get her killed.

[17] Mr. Burton was found guilty of sexual assault and attempting to obstruct justice. He was sentenced to three years in custody in addition to his pre-trial custody for the sexual assault and two years consecutive in relation to the offence of attempting to obstruct justice.

[18] In January of 2012, while in custody, Mr. Burton committed the offence of carrying a concealed weapon. A screwdriver that was sharpened on one end with electrical tape around the handle was found in his cell. In October 2012, Mr. Burton was released from custody at the end of his sentence (at warrant expiry). Upon his release, he was placed on an 810.2 recognizance. Within a month, Burton was charged with breaching the recognizance. The following month Mr. Burton was found guilty of the breach and sentenced to 15 days in jail.

[19] The predicate offence took place in late December 2012, two months after his sentence ended for the sexual assault and attempting to obstruct justice charges.

Other Criminal/Quasi Criminal Conduct

[20] In addition to his criminal record, Mr. Burton has amassed a number of misconduct findings of guilt from the penitentiary and from the detention centre. Many of the misconducts are relatively minor in nature, involving disobeying orders or having non-violent contraband in his cell. Other misconducts were more serious involving weapons being found in his cell or some lower level violence. These are outlined in detail in my judgment dated May 16, 2016.

Past Risk Assessments and Psychological Information

Mr. Burton's Childhood

[21] Mr. Burton had a difficult childhood that included lack of care by his mother, physical abuse by both his mother and stepfather and a failure by his mother to follow through with recommended treatment. It would appear from the records that many state actors were aware of the physical abuse suffered by Mr. Burton and that his mother refused to get him the necessary treatment, but little was done to intervene – much to Mr. Burton's detriment. For example in 1992, the Catholic Children's Aid Society (CCAS) closed their file on Mr. Burton noting that it was clear that Mr. Burton's mother was not going to get the necessary treatment for her son regardless of CCAS's recommendations. Another example is from 1995. There was evidence that Mr. Burton's mother was hitting him with a belt. The police cautioned his mother about this conduct to which she responded that she would nonetheless continue to engage in this kind of punishment. Despite this information, Mr. Burton largely remained in his mother's care. One final example of note is that when Mr. Burton was placed on probation in 1999, the probation officer spoke to Mrs. Burton many times about programs that Mr. Burton should attend, but she failed to take him to these programs and the probation officer failed to take steps to intervene and make sure that Mr. Burton received the counselling that the court ordered.

[22] There is also some suggestion in the material that Mr. Burton was sexually abused as a child. This was investigated at the time and it could not be substantiated. More recent reports suggest that this is a real likelihood. Whether or not Mr. Burton was sexually abused as a child remains factually unclear.

[23] During his childhood, Mr. Burton was periodically put in the care of CCAS. During these state interventions, documents were kept about his behaviour and mental health. All these documents were provided to the court. In a report from Dr. Alter when Mr. Burton was six years old, he was noted as being "out of control" at times and engaging in inappropriate sexual behaviours.

[24] Despite this notation, Mr. Burton did well while in care, and after some time he was returned to his mother where he quickly began to deteriorate.

[25] In 1996 when Mr. Burton was put in care of CCAS again because of allegations that his step father was hitting him with a belt, Mr. Burton was diagnosed with a conduct disorder, depression and anxiety. It was noted that intensive treatment was necessary but at that time, Mr. Burton was not interested in treatment. Mr. Burton was transferred to a group home in Oshawa where he received some treatment and his overall behaviour improved.

[26] Mr. Burton was returned to his mother's home in late 1997. She continued to refuse to obtain treatment for Mr. Burton and sent him to Jamaica instead.

[27] The next period of state intervention was when Mr. Burton was placed on probation in 1999. At that time the court ordered that Mr. Burton attend counselling. One probation officer that worked with Mr. Burton testified at this hearing. According to the probation officer, Mr. Burton never attended counselling during his probation. The probation officer attempted to encourage Mr. Burton's mother to access treatment but she did not and the probation officer took no steps to intervene. As a result, Mr. Burton did not receive any of the court ordered counselling that was imposed when he was a young person.

Psychiatric Assessments from the Jails/Penitentiary

[28] The vast majority of the written assessments and reports on Mr. Burton arise from his time in the penitentiary following his sexual assault conviction in 2008. Dr. Fernandez conducted a psychological assessment on February 26, 2009 while Mr. Burton was in the Millhaven Assessment unit. Dr. Fernandez testified that the assessment took place without Mr. Burton's participation. Mr. Burton was in the process of appealing his conviction and as result chose not to participate in the assessment. Dr. Fernandez concluded that Mr. Burton was a moderate-high risk to re-offend. As a result of the assessment, Dr. Fernandez recommended that Mr. Burton participate in the six month sex offender program.

[29] During the first portion of his sentence, Mr. Burton refused to enter into any treatment programs and was eventually released at his statutory release date without having received any treatment. Mr. Burton was placed on very strict conditions including having to notify his supervisor in advance of forming any relationship with a woman. Mr. Burton was breached soon after his release and he was returned to the penitentiary. Upon his return to the jail, Mr. Burton finally agreed to attend a sexual offender program at Warkwarth Institution. In the report filed with the court from this program it is noted that Mr. Burton attended all program sessions and participated appropriately. It was also noted by the author of the report that Mr. Burton always offered appropriate feed-back to other members of the group and completed all his assignments. During this program many risk factors were noted including hostility towards women, lack of concern for others, impulsivity and sex drive/sex preoccupation. The author of the report noted that Mr. Burton made gains with respect to all his areas of risk. He appeared to have a better understanding of the impact of his behaviour on others as well as a good understanding of empathy. It was also noted that Mr. Burton had become more cognizant of his distorted thinking related to his offending behaviour and was able to replace the distorted thoughts with appropriate thoughts. He was also respectful and cooperative with all female facilitators and staff involved in this program. While Mr. Burton made gains during this program, it was recommended that he participate in a sex offender maintenance program. He never did.

[30] Mr. Burton's work sheets from this program were also filed with the court. These worksheets suggest that Mr. Burton was taking responsibility for his 2007 offences and that he was actively working on identifying his areas of risk and how to address his criminal behaviour.

[31] In the month after the sexual offender program ended, Mr. Burton was charged criminally with carrying a concealed weapon in relation to a sharpened screwdriver found in his cell. Mr. Burton was convicted of this offence. The details were noted already above.

[32] Dr. Stirpe, a psychologist who saw Mr. Burton while he was on parole in 2012 testified at this hearing. According to Dr. Stirpe, Mr. Burton appeared eager and keen during their first meeting but as time progressed became less interested, denied needing any more help and lacked insight. Mr. Burton completely missed his last appointment with her and lied about where he was. Dr. Stirpe testified that eventually she recommended his parole be suspended and it was. Mr. Burton was drinking, was late for curfew and was sending text messages to women which violated his conditions of release. All these factors increased his risk to re-offend and she could not support him remaining on parole.

[33] Dr. Stirpe also conducted a risk assessment for Mr. Burton while he was on parole. Using the Static-99R, Dr. Stirpe found that Mr. Burton was a high risk to re-offend sexually. Dr. Stirpe wrote in her report that offenders with scores similar to Mr. Burton's score have been found to re-offend sexually at a rate of 18% at 5 years. Mr. Burton also scored as having high needs on the Stable 2007 test. Dr. Stirpe wrote in her report that combining these two scores, Mr. Burton posed a very high risk overall. Men with the same risk profile as Mr. Burton have been found to reoffend sexually at a rate of 25.2% over 3 years.

[34] Other prison reports were filed with the court including placement reports and updates for release considerations. In many of the reports filed, Mr. Burton is noted as presenting a high risk to re-offend. The authors reference his numerous misconducts in the jails, his lack of insight into his offending behaviour and his general negative view and sexualisation of women.

Risk Assessment by Dr. Pearce

[35] Pursuant to this court's order, Dr. Pearce conducted an extensive risk assessment of Mr. Burton. In doing so, he identified the present source of Mr. Burton's ongoing conflict with the law and treatment options for Mr. Burton. Dr. Pearce also provided his opinion of Mr. Burton's risk of offending using both clinical and actuarial measures.

(i) Diagnosis and Treatment Prospects

[36] Dr. Pearce testified that Mr. Burton presently suffers from anti-social personality disorder, substance abuse disorder and psychopathy. In relation to the anti-social personality disorder, this is a long standing issue that is difficult to treat. Those suffering from anti-social personality disorder cannot follow rules and cannot follow societal expectations. Moreover, the fact that Mr. Burton suffered from early onset conduct disorder caused Dr. Pearce to conclude that Mr. Burton's anti-social behaviours are very ingrained and therefore very difficult to change. It is Mr. Burton's anti-social personality that provides the backdrop for much of Mr. Burton's offending behaviour.

[37] Given the sexual nature of the offending conduct, Dr. Pearce was asked if Mr. Burton suffered from a sexual paraphilia or deviancy. Dr. Pearce testified that he was unable to make a diagnosis of this nature.

[38] Dr. Pearce also tested Mr. Burton on the PCL-R to determine if Mr. Burton has psychopathic traits. Mr. Burton scored a 33 which meets the criteria for a psychopath. Dr. Pearce testified that Mr. Burton's score on the PCL-R combined with his diagnosis of anti-social personality disorder and his diverse criminal history makes Mr. Burton very hard to treat and manage in the community.

[39] According to Dr. Pearce, there is no known treatment for psychopathy or anti-social personality disorder. The best psychiatrists can do is attempt to manage the behaviours associated with the disorders. Dr. Pearce testified that treatment considerations for Mr. Burton would include: group therapy, anger management, attitudes and values training and vocational programming. He also recommended gradual re-integration into society. Dr. Pearce explained these types of programs would target reducing and managing risk as opposed to treating the personality disorder.

[40] Dr. Pearce canvassed treatment readiness with Mr. Burton. In outlining Mr. Burton's response, Dr. Pearce noted that it was difficult to determine the truthfulness of Mr. Burton's comments due to his history of manipulating and deceiving others. Mr. Burton told Dr. Pearce that he would be agreeable to treatment but he did not appear to be enthusiastic about it. Dr. Pearce went on to state, however that Mr. Burton's willingness to attend treatment is a positive first step.

(ii) Risk to the Public

[41] Dr. Pearce addressed risk in two ways. Firstly, he addressed risk that was determined from the actuarial instruments. Second, he assessed risk from a clinical perspective taking into account all the information he had about Mr. Burton.

(a) The Actuarial Instruments

[42] Dr. Pearce used two main actuarial instruments to assess risk, the SORAG and the STATIC-99R. On the SORAG Mr. Burton scored a 33. According to Dr. Pearce this score represents a risk of reoffending at nearly 100%. Dr. Pearce noted, however, that this score is likely an overstatement as the data in support of this instrument is old. He further noted that Mr. Burton was hard to score on this particular scale because his predicate offences were not traditional sexual offences.

[43] In relation to the static-99R, which is used to predict the likelihood of future sexual offending, Mr. Burton scored a +7. This score suggests a high risk of sexual re-offending at a rate of 33% - 49% over 10 years of opportunity (Dr. Pearce did concede that these numbers could be slightly lower depending on how one scores the prior offending conduct). When asked for more details about what this meant, Dr. Pearce explained that the actuarial tools provide overall risk to re-offend sexually within a set number of years. Using these tools, Dr. Pearce could not estimate whether Mr. Burton would re-offend sexually imminently or how severe the offence would be. Mr. Burton's diverse criminal history and long gap between traditional sexual assaults provide a further barrier to making a clear assessment about severity and imminence.

[44] In explaining the significance of these figures, Dr. Pearce testified that these scores are based on years of opportunity to offend where the offender has not had any treatment.

[45] In light of these scores, Dr. Pearce concluded that Mr. Burton is likely to re-offend sexually if he does not receive significant intervention.

(b) Clinical Assessment

[46] Dr. Pearce commented throughout his testimony that this was a difficult assessment in some respects because Mr. Burton's offences are all different. Using both the actuarial tools and his clinical assessment, Dr. Pearce nonetheless was able to confidently conclude that Mr. Burton poses an overall high risk to reoffend. While there is a high risk of sexually re-offending, in particularly in light of the 2007 sexual offence, Dr. Pearce noted that there are significant gaps in the typical sexual offending conduct. He also indicated that it was significant that the predicate offences, while having a sexual component to them, was based more on greed and power than libido which distinguishes it from other sexual offences on his record.

[47] In looking at risk over all, Dr. Pearce highlighted that the actuarial tools, the diverse criminal acts, Mr. Burton's anti-social personality disorder, his substance abuse issue, his lack of vocational training, his lack of motivation and lack of success on earlier releases make Mr. Burton a high risk to re-offend.

[48] In relation to whether or not Mr. Burton's risk could be attenuated with treatment or supervision, Dr. Pearce testified that it would be challenging to reduce Mr. Burton's risk to even a medium risk of reoffending. He allowed for the possibility of a reduction of risk but only if Mr. Burton was truly committed to change. There was nothing in Dr. Pearce's meetings with Mr. Burton or the file information that could lead Dr. Pearce to conclude that Mr. Burton was so committed. To be successful Mr. Burton requires significant treatment, a commitment to treatment, avoidance of all substances and vocational training. A longer sentence with gradual release to the community along with supervision would be the best process for success but Dr. Pearce was not "reasonably comfortable that he will be a manageable risk at end of LTSO". Dr. Pearce testified that while Mr. Burton could benefit from treatment, he could not be confident that treatment would be successful.

Analysis

General Legal Principles

[49] A determination as to whether an offender should be designated a dangerous offender requires the court to first consider the purpose behind the legislation. The dangerous offender provisions exist to protect the public against offenders who present an ongoing danger to the community. While it is based on protecting the community, it cannot be forgotten that the consequence of such a designation is serious in that it involves the potential of loss of liberty for the rest of a person's life. Given the serious consequence to liberty that flows from a dangerous offender designation, the Crown must prove beyond a reasonable doubt that the offender falls within the criteria established by the Code. (R. v. Newman). Recently the Supreme Court of Canada re-iterated that the Dangerous Offender provisions is a preventative sanction that can be "imposed only upon offenders for whom segregation from society is a rational means to achieve the overriding purpose of public safety." (R. v. Boutilier, 2017 SCC 64. See also R. v. Steele, 2014 SCC 61 and R. v. Johnson, 2003 SCC 46).

[50] Section 753 which governs the designation of dangerous offenders states:

753. (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing

(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or

(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.

[51] To summarize, pursuant to section 753 of the Criminal Code, the court must first be satisfied that the defendant has committed a serious personal injury offence (this pre-requisite has been met). The court must then be satisfied beyond a reasonable doubt that Mr. Burton poses a threat to the life, safety or physical or mental well-being of other persons. The Criminal Code further states that the threat to life and/or safety of others will be established by evidence of different types of conduct including:

a) A pattern of repetitive behaviour showing failure to restrain one's behaviour;

b) A pattern of aggressive behaviour showing indifference to the consequences; or,

c) Brutal conduct.

[52] If the offender is found to be a dangerous offender, then the court must go on to consider whether an indeterminate sentence is required.

[53] In the case at bar, as can be readily seen from the summary above, there is a substantial body of evidence indicating that Mr. Burton is a high risk to re-offend. The actuarial assessments and Dr. Pearce's clinical assessment all indicate that Mr. Burton falls in the "high risk" to reoffend category. It is not all offenders, however, that pose a high risk to re-offend that are captured by this provision. The provision is narrower than that. The legislation requires the court to make a finding that the offender is likely to re-offend in a particular manner taking into account his pattern of past conduct. The court is not required to conclude that the offender will definitely reoffend nor is the court required to identify the particular offence the offender will commit. This is too high a standard. The pattern of past conduct, however, is a key component of the inquiry into whether the offender will likely in the future cause death or injury or inflict severe psychological damage on other persons through his failure in the future to restrain his or her behaviour. In light of the general tenor of the evidence presented at this hearing, in my view, the complicated issue in this case is not whether Mr. Burton generally poses a high risk to re-offend, but whether or not the requisite pattern is made out.

Pattern of Repetitive Behaviour Under Section 753(1)(a)(i)

[54] Section 753(1)(a)(i) can be broken down into three components:

a) that the offender has engaged in a pattern of repetitive behaviour that includes the predicate offence

b) that the pattern establishes that the offender has failed to restrain his behaviour in the past; and,

c) that the pattern must show a likelihood of injury or severe psychological damage in the future by the offender's failure to restrain his behaviour.

[55] In my judgment of May 16, 2016, I reviewed in detail the law on pattern. Instead of repeating myself, I will only summarize it here. The essence of a pattern is that there are a number of significant similarities between each example of that pattern. The different offences must have some similarities but they need not be so similar as to meet the test for similar fact evidence. (R. v. Dow, 1999 BCCA 177).

[56] The pattern of repetitive behaviour must be sufficiently similar to allow the prediction that the offender will offend in the same way in the future (R. v. Hogg, 2011 ONCA 840, at paragraph 40). The offences, however, need not be the same in every detail and they may even be different in kind as long as there are sufficient other similarities between the different offences. The fewer the incidents, however, the greater the number of similarities that are required. (R. v. Akbar, 2014 ONSC 1946)

[57] In R. v. Dorsey, [2009] O.J. No. 5368 (S.C.J.), pattern was described as follows at paragraph 98:

I agree that in order to satisfy paragraphs (i) and (ii), the Crown must establish, among other things, that the predicate offences form part of a pattern of repetitive or persistent behaviour. A pattern of behaviour is something more than a mere history of criminal activity. To constitute a pattern, there must be something that connects prior incidents together in a manner that justifies considering them as a whole. Similarity can supply the requisite degree of connection, and where the number of prior incidents is low, similarity may be crucial; R. v. Smyth, [2007] O.J. No. 1546 (Sup. Ct.). However, "similarity… can be found not only in the types of offences but also in the degree of violence or aggression threatened or inflicted on the victims… [and] similarity in terms of kinds of offences is not crucial when the incidents of serious violence and aggression are more numerous": R. v. Neve, 1999 ABCA 206, 137 C.C.C. (3d) 97, at paragraph 113 (Alta.C.A.).

[58] In the case at bar, the Crown relies on the predicate offences and the two previous sexual assaults to establish a pattern under 253(1)(a)(i). These offences are as follows:

i) The sexual assault and corresponding Fail to Comply with the offence date of 1998;

ii) The sexual assault and corresponding obstruct justice conviction with the offence date of 2007; and,

iii) the predicate offences of human trafficking and the corresponding obstruct justice offence.

[59] In my decision of May 15, 2016, I found that while there were significant differences between the three offences, there was sufficient evidence of a pattern to meet the relatively low standard required to order an assessment. I described the pattern as involving the sexual exploitation and violation of women in a manner that will likely cause his victims physical harm or severe psychological damage.

[60] In my earlier judgment, I noted the similarities between the offences to be as follows:

• All three offences involved the sexual exploitation and sexual violation of a female victim that led to severe injury (although the mechanism of exploitation was different in the predicate offence);

• All three offences involve some intimidation of the victims post offence, albeit the evidence of intimidation with respect to the 1998 offence is quite weak as it is limited to Mr. Burton following A.C. for a very short period of time a month after the offence and the intimidation of V.C. in the predicate offence was less overt;

• The latter two offences involve some kind of confinement, albeit in a very different way and to very different degrees.

When I consider the additional evidence in relation to the 1998 sexual assault presented at this hearing these similarities remain.

[61] Crown counsel argued that there are additional similarities including:

• All victims were vulnerable

• All victims were younger that Mr. Burton

• Mr. Burton used intimidation and threats in all three offences

[62] Despite Crown counsel's very able argument, I do not consider the above facts as having a meaningful similarity between the three offences. Firstly, most people have some vulnerability. This does not make them a "vulnerable victim". A.C. was new to the area and was small in size, but she had already made friends. In fact she had been walking with her friends just before Mr. Burton met up with her. She was also with a friend when Mr. Burton breached his recognizance by being near A.C. Moreover, while A.C. was small, she was clearly able to break free from Mr. Burton. Either she was quite strong which contradicts the Crown's assertion of A.C. being vulnerable because she was frail, or Mr. Burton did not try very hard to restrain A.C. once she pushed him away. The victim of the 2007 offence was in a vulnerable position in that she was babysitting three young children when Mr. Burton attacked her. While she had other vulnerabilities these do not appear to have played a role in Mr. Burton's motivation to attack her. In my view, it was only the predicate offence that really establishes Mr. Burton capitalizing on the vulnerability of his victims. Similarly, while all the victims were younger than Mr. Burton, this is not a significant issue in the 1998 sexual assault since the age difference was one year. The difference between 13 and 14, is not in my view significant enough to make age a factor in the analysis. Finally in relation to the use of threats, Mr. Burton did not use threats in the 1998 sexual assault and did not use any overt threats in the predicate offences. While intimidation was at play in the 2007 offence and predicate offences it was not present in the 1998 sexual assault.

[63] While there are very few similarities between the offences, there are numerous differences. First of all, the 1998 offences took place years before the other two offences. Secondly, Mr. Burton was only 14 years old at the time of the first sexual assault. Thirdly, the first sexual assault was of a short duration whereas the more recent two were protracted. Fourthly, the first two offences involved sexual gratification while the most recent offence was for financial gain. Fifthly, the level of violence used was very different. In the predicate offence no actual violence was used nor were there any overt threats of violence. The trial Judge found only the presence of implied threats and an atmosphere of oppression. The nature of the harm suffered is also different. While all the offences led to a violation of the victim's sexual integrity, the nature of the violation is very different. Moreover, the physical harm suffered was different. Finally, while all the offences involved the use of power, control and intimidation, the degree to which each of those factors was present in each of the three sets of offences differs substantially.

[64] One final difference that is worth noting is that the predicate offences do not involve a sexual assault by Mr. Burton on his victims. Instead, using intimidation and implied threats, he forced or coerced them into engaging in prostitution. I appreciate that during her victim impact evidence, A.O. testified that she felt coerced to have sexual intercourse with Mr. Burton, but as I stated in my previous decision, Mr. Burton was not charged with sexual assault and furthermore, the issue was not explored in detail during the trial given the context in which this evidence came out an earlier hearing. I therefore was not and am not able to make a finding beyond a reasonable doubt that A.O. was sexually assaulted by Mr. Burton.

[65] All the differences outlined above make for a compelling argument that the requisite pattern does not exist. I nonetheless, in my judgment of May 15, 2016, found that while it was a close call there was sufficient evidence of pattern to order an assessment. I left open the issue of whether or not there were sufficient similarities to prove the presence of the requisite pattern as per section 753(1) (a)(i) of the Criminal Code beyond a reasonable doubt.

[66] When I consider all the evidence presented at this hearing, there are some significant issues with the pattern I had previously identified in my judgment of May 16, 2016. Firstly, the pattern identified is very broad and could include any number of different offences. It is arguably so broad that it fails to really identify what general type of future offences Mr. Burton might commit. In R. v. Hogg, the court identified a pattern based on motivation which led Mr. Hogg to engage in criminal and harmful acts. In R. v. Hogg, however, there were so many offences motivated by the same factors that this similarity was sufficient to meet the definition of pattern as contemplated by the provision. In the case at bar, there are only three offences that are said to form part of the pattern.

[67] I further find that the gap in time between the 1998 sexual assault and the 2007 sexual assault to be significant. Mr. Burton was only 14 years old in 1998 as compared to being 21 years old in 2007. In R. v. G.T. (1998), 124 C.C.C. (3d) 384 (B.C.C.A.), the British Columbia Court of Appeal commented on the reality that some childhood offending can be distinguished from adult offending conduct because of "social realities". I appreciate that in R. v. P.G., 2013 ONSC 589, Code J. found that a pattern existed despite a 16 year gap between the offences. In P.G., however, in concluding that there was nonetheless sufficient similarity between the offences so as to make out a pattern as per section 753(1)(a)(i), Code J. noted that the predicate offences were numerous and sufficiently similar that the predicate offences themselves made out a pattern and that all the offences were "striking similar". The facts in the case at bar are very different in that the offences in the case at bar are not strikingly similar. As previously noted, while striking similarity is not necessary, the fewer the offences in the pattern, the greater the similarity must be.

[68] In assessing whether the offences in the case at bar are sufficiently similar to meet the requirement of pattern under section 753(1)(a)(i), the existence of a pattern is crucial in that it is deemed to be part of the analysis in predicting future offending. The Saskatchewan Court of Appeal stated in R. v. Knife, 2015 SKCA 82, "Thus, the pattern/repetition analysis provides the evidentiary basis for assessing the future threat" (at paragraph 72). It is the connection between the past offences and the predicate offences that help guide the risk analysis regarding future offending. To that end, the evidence of Dr. Pearce is helpful in considering the issue of pattern.

[69] Dr. Pearce did not provide an opinion on the issue of pattern. He did, however, provide some evidence about what inferences can be drawn about Mr. Burton's future offending based on his past offences. Dr. Pearce testified about some key differences between the three offences and how these differences impact the risk assessment process. I note that unlike many of the dangerous offender cases involving sexual offences, Mr. Burton's offending conduct is not linked to any identified sexual paraphilia. This is relevant when assessing what types of offences Mr. Burton might commit in the future. Dr. Pearce also testified that motivation for committing the offence can assist in predicting the future offending conduct. In the case at bar, the motivating factors between the predicate offence and other offences is different. The motivating factor of the two sexual offences appears to have been libido and potentially power where the motivation for the predicate offence was linked to money and power. Dr. Pearce also identified the gap in time between the 1998 offence and the 2007 offence as being significant in that it impacts the ability to determine the timing of future sexual offending. He could not conclude that Mr. Burton's sexual re-offending would be imminent. Dr. Pearce further testified that predicting the severity of the re-offending conduct is also difficult in this case given the differences between the offences. Finally, Dr. Pearce conceded in his evidence that to some extent Mr. Burton's predicate offence is more similar to his drug dealing than it is to his sexual offences. Dr. Pearce was clear, however, that Mr. Burton was a high risk to re-offend sexually. It appears, however, from all the material filed, in particular the reports from the penitentiary, that Mr. Burton was a high risk to re-offend sexually after the 2007 offence. The predicate offences appear to have added little to his risk of re-offending sexually except to confirm his overall risk of re-offending.

[70] When I consider the prior three offences that the Crown argues forms the relevant pattern in the case at bar along with the additional evidence about the 1998 sexual assault, and the evidence from Dr. Pearce, it is my view that the Crown has not proven the relevant pattern beyond a reasonable doubt. While Mr. Burton Cleary poses a high risk to re-offend generally due to his failure to restrain himself, the prior offences do not provide a sufficient pattern as is required by section 753(1) (a)(i) of the Criminal Code. While the fact that Mr. Burton is a high risk to re-offend is of great concern to this court and needs to be addressed in sentencing Mr. Burton, the court is bound by the confines of the section and in the absence of a finding of the requisite pattern, the court cannot designate Mr. Burton a dangerous offender.

Section 753(1)(a)(ii) – Pattern of Persistent Aggressive Behaviour

[71] In my decision of May 16, 2016, I found that there was no basis to conclude that there was a pattern of aggression that shows a substantial degree of indifference by the offender. The Crown argues that I ought to reconsider my decision in light of Dr. Pearce's evidence that Mr. Burton suffers from anti-social personality disorder and is a high risk to re-offend because of his inability to conform to societal norms and follow society's rules.

[72] In my earlier decision I provided detailed reasons for why he did not meet this standard. I am mindful that there is additional evidence before the court that speaks to Mr. Burton's general risk to re-offend, but this evidence, does not cause me to revisit my finding on this point. In particular, I note that Dr. Pearce, when asked about general violence did not note this as a big component of Mr. Burton's past conduct.

Likelihood of Causing Harm or Severe Psychological Damage by Failure to Control His Impulses

[73] Having found no pattern, the inquiry should end here. I will nonetheless briefly address the remaining issues as they relate to likelihood of causing harm to others by his failure to control his impulses.

[74] Mr. Burton has an extensive criminal record. Dr. Pearce has diagnosed Mr. Burton with personality disorders for which at this point in time there is no known treatment. These personality disorders make Mr. Burton a high risk to re-offend because the disorders are grounded in criminality and noncompliance with societal rules. It is equally concerning that Mr. Burton has spent almost his entire adult life in custody, and when he is released from custody he either quickly re-offends or breaches terms of his release that are linked to his risk of re-offending.

[75] Dr. Pearce testified that Mr. Burton needs significant intervention to reduce his risk. Even with this intervention there are no guarantees that Mr. Burton can be meaningfully managed in the community. Dr. Pearce testified, however, that a slow re-integration into society coupled with significant supervision would help reduce Mr. Burton's risk and that if Mr. Burton is truly committed to his own rehabilitation, there is some potential for a reduction in his risk to re-offend.

[76] Mr. McCrae forcefully argued that using the actuarial tests, Mr. Burton's risk of re-offending is less than 50%. In light of this fact, Mr. McCrae argued that the test for "likelihood" is not met as likelihood is only achieved if the risk of re-offending is greater than 50%. Despite his very able argument and very skilled cross-examination of Dr. Pearce, I disagree. Dr. Pearce was clear, it was the actuarial assessments in conjunction with his clinical assessment which included the psychiatric diagnosis, potential for successful treatment and Mr. Burton's past criminal conduct that formed the foundation for his conclusion that Mr. Burton poses a significant risk to re-offend and is likely to re-offend in a manner that poses a real risk of harm or severe psychological injury because of his failure to control his impulses. I note that Dr. Pearce's evidence is uncontradicted on this point. In light of all the evidence presented at this hearing, I have no difficulty in finding that had a pattern been made out, this second piece of the analysis would have been made out as well and that a dangerous offender designation would have been appropriate.

Long Term Offender

[77] Section 753.1(2) of the Criminal Code allows for a court to make a finding that an offender is a Long Term Offender where the offender has engaged "in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted", and where the offender has shown a likelihood of causing injury, pain or other evil to other person in the future through similar offences.

[78] In the case at bar, the present offence, while not a traditional sexual offence, is serious conduct of a sexual nature. The two victims were sexually exploited by Mr. Burton who, through implied threats and deception, coerced the two victims into prostitution. This satisfies the first prong of section 753.1(2). The second prong requires the Crown to prove that there is a likelihood that Mr. Burton will cause injury, pain or other evil to other persons in the future through similar offences. While I have found that there is insufficient evidence to establish a pattern of repetitive behaviour, in my view the Crown has met her onus on this prong. As stated above, Dr. Pearce provided a comprehensive opinion outlining Mr. Burton's likelihood of re-offending generally and sexually. According to Dr. Pearce, Mr. Burton poses a high risk to re-offend in both categories. Dr. Pearce's opinion is grounded not just in the actuarial tests (which alone would not meet the test for likelihood). Instead, Dr. Pearce's opinion is based on the results of the actuarial tests, the clinical assessment, Mr. Burton's prior criminal and aggressive acts and Mr. Burton's personality disorders. All these factors cause this court to conclude that Mr. Burton poses a significant risk to re-offend both generally and sexually and that in re-offending he will cause injury, pain or other evil to persons through the commission of similar offences. I therefore find that Mr. Burton is a Long Term Offender.

[79] Having found that Mr. Burton is a Long Term Offender pursuant to section 753.1(2) of the Criminal Code, the court may impose a sentence for the offences before the court in addition to a longer term supervision order for a maximum of 10 years. In the case at bar, counsel for Mr. Burton argued that a sentence in the range of 6-8 years for the human trafficking related offences and a sentence of 2 years consecutive for the obstruct justice offence for a sentence of 8-10 years. Crown counsel argued that a five year sentence should be imposed for each count of human trafficking, to run consecutively to each other. She further argued that an additional 2 years ought to be imposed for the obstruct justice charge for a total of 12 years.

General Principles of Sentencing

[80] The overarching principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is best determined by considering all the aggravating and mitigating facts while keeping in mind the objectives of sentencing which include:

a) General and specific deterrence

b) Denunciation

c) Rehabilitation

d) Reparation to society and/or the victim

e) Separation from society where necessary

f) The need to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.

[81] The Criminal Code does not place these objectives in any hierarchy of importance. How much weight a sentencing judge places on any given objective will depend on the facts of each case. Generally, where the offence involves violence, in particular sexual violence and exploitation, the objectives of denunciation and general deterrence are paramount. Moreover, where there are real concerns about risk of harm to members of the public, protection of the public through separating offenders from society must also be given significant consideration. The sentence in the case at bar must also take into consideration the ongoing concern around human trafficking and pimping and the extreme harm this type of offending has on its victims. The horrors and evils of prostitution are well documented and beyond dispute. As Justice Trotter noted at paragraph 10 of R. v. Burton, 2013 ONSC 3021:

The social ills and dangers associated with prostitution and juvenile prostitution in particular, are well-recognized and accepted by social science and reflected in the legal literature.

[82] In determining the appropriate sentence, the court must consider both the aggravating and mitigating factors. In R. v. Tang, 1997 ABCA 174 and R. v. Miller, [1997] O.J. No. 3911 (SCJ), the courts articulated a number of factors that serve as a guide in assessing the aggravating factors as they relate to pimping related offences. It is useful to consider each of these factors in assessing the gravity of the offence in the case at bar.

a) Degree of coercion or control by Mr. Burton on his victims;

b) The amount of money received by Mr. Burton and his victim;

c) The number of victims;

d) The age and vulnerability of the victims;

e) The working conditions and health safeguards

f) The degree of planning, sophistication and size of organization;

g) The duration of the exploitative conduct;

h) The degree of violence, if any, apart from that inherent to the pimp's parasitic acts;

i) the extent inducements were used;

j) the harm suffered by the victims; and,

k) The extent to which the pimp demanded sexual favours from the victim.

[83] Mr. Burton did not physically assault or overtly threaten either of his victims. He did, however exercise a significant degree of control over both V.C. and A.O., albeit in different ways. Mr. Burton took advantage of V.C.'s love for him and her vulnerability to control her and coerce her into prostitution whereas Mr. Burton used intimidation to coerce A.O. into prostitution. Moreover, Mr. Burton controlled almost everything that A.O. and V.C. did during the week or so that he was their pimp. He controlled how much food they received and when they ate. He controlled when they worked, which clients they saw, how much the clients were charged and how that money was spent. In addition to controlling all aspects of their prostitution, including receiving all the material benefits of their prostitution, Mr. Burton also restricted A.O. and V.C.'s movements. This all suggests a high degree of control by Mr. Burton over both victims.

[84] It is unknown how much money Mr. Burton made but he did pimp out two victims for over a week where he received all the profits. This did not appear, however, to be a sophisticated enterprise.

[85] Both victims were 19 years old at the time of the offences. They were vulnerable given their lack of family and connection in Toronto. As noted in my judgment of February 23, 2016 both women suffered significantly as a result of Mr. Burton's criminal acts.

[86] All the sexual acts occurred in a hotel room. Condoms were provided, although not always used. A.O. was in fact physically harmed by one customer. The working conditions and stress of the situation was sufficiently poor that V.C. became physically ill while working for Mr. Burton. Moreover, Mr. Burton demanded sex from both A.O. and V.C. every morning and every night.

[87] In light of the above facts, it is clear that there are a number of aggravating factors in the case at bar which clearly place this offence outside the lower end of the offending conduct captured by this offence. There were multiple victims, the victims were vulnerable and suffered severe harm by Mr. Burton's conduct, Mr. Burton exercised a significant degree of control over the victims, retained all the profits and demanded sexual favours from both victims. In addition to the above aggravating factors, the court must also consider Mr. Burton's criminal record and the fact that he had just been released from custody when he committed these offences. He also obstructed justice through his continued communication with V.C. after his arrest.

[88] There are not many mitigating facts in this case. In my view, the fact that Mr. Burton was abused and neglected as a child is a mitigating factor. It is also mitigating that despite the fact that Mr. Burton obviously needed intense intervention at a young age, his mother and the state failed to ensure that he had access to this intervention.

General Range of Sentence

[89] The final step in assessing the appropriate sentence is to consider the range of sentence normally imposed for this type of offence. The general range for human trafficking is anywhere from a sentence of five years' incarceration to thirteen years. For example, in R. v. R.R.S., 2016 ONSC 2939, a sentence of five years was imposed for the offence of human trafficking, receiving a material benefit and uttering threats to cause death. In R.R.S., the offender was in a relationship with the victim during the relevant time and he took 60 per cent of the victim's profits. R.R.S. had a significant record and attempted to evade the police. In my view, the facts in the case at bar are more aggravating in that there are two victims and Mr. Burton retained all the profits. Moreover, Mr. Burton exercised a significant degree of control over both his victims.

[90] In R. v. M.C.D. [2017] O.J. No. 3174 (S.C.J.), Kelly J. imposed a global sentence of eight years for one count of human trafficking, one count of kidnapping, one count of receiving a material benefit and one count of using an imitation firearm. I note, however, that she imposed only five years for the human trafficking count. Despite the increased level of violence in M.C.D., in some respects the facts in M.C.D. are nonetheless less aggravating as there was only one victim in that case. Moreover, Kelly J. specifically stated that she was reducing the sentence by one year to take into account M.C.D.'s plea of guilty.

[91] In R. v. A.D.S. [2017] O.J. No. 531 (SCJ) a 13 year sentence was imposed for the offence of human trafficking. The facts in A.D.S. are significantly more aggravating than the case at bar as the victim was physically assaulted by the offender.

[92] When I consider all the aggravating and mitigating factors, I am satisfied that an eight year and a half year sentence ought to be imposed concurrent on both counts of human trafficking. I appreciate the Crown's position that there should be consecutive sentences for each victim, but when I look at all the facts of this case, I am satisfied that imposing elevated concurrent sentences that take into account the aggravating factor of their being multiple victims is appropriate. The offenses occurred at the same time and the conduct for each victim was intertwined. The fact that there were two victims is a significant aggravating factor and is properly addressed in an eight year and a half year sentence. This also serves to take into account the principle of totality.

[93] In addition to the eight and a half year sentence, I further impose a sentence of two years, to run consecutively to the human trafficking sentences, for the offence of obstruct justice. Both counsel agree that a two year sentence to run consecutively is the appropriate sentence for this offence.

Pre-Sentence Custody

[94] Mr. Burton has spent five years and 3 months in pre-sentence custody. Counsel for Mr. Burton argued that Mr. Burton should be credited at a rate of 1.5 days for every real day spent in pre-sentence custody for a total of seven years, ten months and fifteen days pursuant to R. v. Summers, [2014] S.C.J. No. 575. He further argued that it should be further reduced by 12-18 months pursuant to R. v. Duncan, 2016 ONCA 754, to account for the harsh conditions he has had to endure while in pre-trial custody.

[95] In the case at bar, the Crown took the position that Mr. Burton should be credited for his pre-sentence custody at a rate of 1.5 to 1 but nothing more. She argued that Mr. Burton's long history of non-compliance with court orders and parole in conjunction with his numerous institutional offences make Mr. Burton a poor candidate for early release. Crown counsel argued that enhanced credit should nonetheless be granted to account for the harsh conditions that Mr. Burton was exposed to while in pre-sentence custody.

[96] During Mr. Burton's five years in pre-sentence custody, the jail had 350 days of full lock downs and almost two hundred days of partial lock downs. Moreover, Mr. Burton was placed in segregation many times while in pre-sentence custody for a total of 290 days. While Mr. Burton's placement in segregation was often a response to Mr. Burton's own behaviour, the time spent in segregation was clearly excessive. There have now been numerous studies about the impact of long placements in segregation and new standards on how long an inmate may remain in segregation have been released in response to these studies. On six occasions Mr. Burton was placed in segregation for longer than 15 days. On one occasion, he was in segregation for 51 days, on another occasion he was in segregation for 48 consecutive days and on another occasion he was in segregation for 31 days. I am satisfied that I can take judicial notice of the harm this would cause.

[97] I agree with the Crown that Mr. Burton is not likely to receive early release or parole due to his past breaches, his lack of success on parole and his ongoing risk to the public. For this reason, the general practice of granting the maximum enhanced does not apply. In R. v. Summers, supra, the Supreme Court of Canada held that in most circumstances the maximum enhanced credit should be granted. There will be rare cases, however, where enhanced credit is not appropriate. The Court stated at paragraph 79:

The onus is on the offender to demonstrate that he should be awarded enhanced credit as a result of his pre-sentence detention. Generally speaking, the fact that pre-sentence detention has occurred will usually be sufficient to give rise to an inference that the offender has lost eligibility for parole or early release, justifying enhanced credit. Of course, the Crown may respond by challenging such an inference. There will be particularly dangerous offenders who have committed certain serious offences for whom early release and parole are simply not available. Similarly, if the accused's conduct in jail suggests that he is unlikely to be granted early release or parole, the judge may be justified in withholding enhanced credit. Extensive evidence will rarely be necessary. A practical approach is required that does not complicate or prolong the sentencing process.

[98] In my view, while Mr. Burton is not likely to obtain early release or parole, Mr. Burton should still receive some enhanced credit at a rate less than the standard 1.5 to 1 to take into account some loss of eligibility for parole. He should also receive some enhanced credit for the harsh conditions in the jail. While it is unclear what effect the lock downs had on Mr. Burton as Mr. Burton was in segregation for some of this time, Mr. Burton was often brought to court late by the jail causing additional stress to Mr. Burton, he spent extended time in segregation and was frequently placed in segregation in the court cells. In my view, crediting Mr. Burton at a rate of 1.5 to 1 for his pre-sentence custody, given his unique circumstances gives appropriate weight to both these issues and is consistent with both R. v. Summers and R. v. Duncan.

[99] In relation to the Long Term Supervision Order, in light of Dr. Pearce's evidence, the maximum order of ten years will be imposed. The evidence is that Mr. Burton is going to need significant supervision and treatment for a long time in order to properly manage and reduce his risk of re-offending and in order to protect the public. In my view, in light of this evidence, the only meaningful way to protect the public is to impose the maximum long term supervision order. The only recommendation I could make at this stage is that the order include the treatment and supervision recommendations made by Dr. Pearce in his report to the court.

[100] Mr. Burton is therefore sentenced to 10 ½ years' incarceration to be reduced by seven years and eleven months. The remaining sentence is 2 years and seven months followed by a ten year long term supervision order. The sentences will be apportioned as follows:

Human trafficking x 2 – 8 ½ years concurrent

Exercising Control x2 – 5 years concurrent

Receiving material benefit from trafficking in persons x2 – 5 years concurrent

Withholding passports x2 - 3 years concurrent

Obstruct Justice – 2 years consecutive

[101] There will also be a SOIRA order for life in relation to the counts of human trafficking, a DNA order and a weapons prohibition pursuant to section 109 of the Criminal Code for life. There will also be a non-communication order with the victims of these offences, the victim from the 2007 sexual assault and the victim and her sister from the 1998 sexual assault.

Released March 2, 2018

Justice Mara Greene