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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

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

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

Court Information

Ontario Court of Justice

Date: May 30, 2019

Court File No.: Halton 18-785

Between:

Her Majesty the Queen

— and —

Andrew Meshreky

Before: Justice D.A. Harris

Heard on: May 3, 2019

Reasons for Sentence released on: May 30, 2019

Counsel:

• Elise Quinn, counsel for the Crown
• Androu Gerges, counsel for the accused Andrew Meshreky

Reasons for Sentence

D.A. HARRIS J.:

INTRODUCTION

[1] Andrew Meshreky pled guilty to:

(1) Procuring C.C. to be a prostitute contrary to section 286.3(1) of the Criminal Code;

(2) Receiving a financial benefit from C.C. contrary to section 286.2(1);

(3) Advertising the sexual services of C.C. contrary to section 286.4.

[2] All of these offences occurred between February 20 and 28, 2018.

[3] The first two are indictable offences. Crown counsel elected to proceed by indictment with respect to the third one.

[4] Mr. Meshreky is before me today to be sentenced.

[5] Counsel made the joint submission that I should sentence him to imprisonment for two years.

[6] Crown counsel suggested that this should be followed by probation for 18 months. Counsel for Mr. Meshreky suggested that probation was unnecessary and even inappropriate.

[7] Both counsel agreed that I should make a DNA order.

[8] I find that a sentence of imprisonment for two years, followed by probation for 18 months is the appropriate sentence here.

[9] My reasons for this are set out under the following subject headings:

1. The fundamental purpose and principles of sentencing;
2. The offences;
3. The impact on the victim;
4. The background of Mr. Meshreky; and
5. Analysis.

FUNDAMENTAL PURPOSE AND PRINCIPLES OF SENTENCING

[10] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[11] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[12] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

[13] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.

[14] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

[15] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[16] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[17] The offence had a significant impact on the victim, considering her age and other personal circumstances, including health and financial situation. Section 718.2(a)(iii.1) of the Criminal Code provides that this is an aggravating circumstance, and that the sentence should reflect that.

[18] Section 718.2(c) provides that where consecutive sentences are imposed the combined sentence should not be unduly long or harsh.

[19] The totality principle requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. I must review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate". A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects.

[20] In doing this, I should first fix appropriate individual sentences to arrive at a total sentence and then adjust the total sentence to ensure that it does not exceed what is just and appropriate.

[21] With respect to consecutive sentences, section 718.3(4)(b)(i) provides that "The court that sentences an accused shall consider directing … (b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively including when (i) the offences do not arise out of the same event or series of events".

[22] There is a broad discretion to impose consecutive sentences if separate legal interests are implicated in the various offences.

[23] I must specifically consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[24] I must also consider the impact of section 718.2(e) which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

[25] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

[26] In R. v. Priest, supra the Ontario Court of Appeal made it clear that much of this is simply a codification of the existing law, especially with respect to youthful first offenders. That case made it clear however that this principle is of less importance in cases involving very serious offences and offences involving violence. The offences in this case are very serious ones.

[27] The Supreme Court also noted in Gladue that section 718 requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. A sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender.

[28] The maximum sentence for procuring C.C. to be a prostitute contrary to section 286.3(1) of the Criminal Code is imprisonment for 14 years.

[29] The maximum sentence for receiving a financial benefit from C.C. contrary to section 286.2(1) is imprisonment for 10 years.

[30] The maximum sentence for advertising the sexual services of C.C. contrary to section 286.4 is imprisonment for five years when Crown counsel proceeded by indictment.

[31] Before I can apply the above principles however I must examine the offences here, the impact that they had on the victims and the background of Mr. Meshreky.

THE OFFENCES

[32] Mr. Meshreky was 26 years of age when the offences occurred in February 2018.

[33] C.C. was 17 years old at the time. At the age of 4, she was involved in a serious motor vehicle collision resulting in permanent brain damage, which caused developmental delays. These things were not previously known to Mr. Meshreky.

[34] She first met Mr. Meshreky via Instagram in February 2018. He added her to his Instagram account, which she accepted. They spoke for approximately two days over various social media platforms and by telephone, before they met in person.

[35] Eventually he asked her if she would like to "hang out". She agreed. He picked her up at her residence. She was under the impression they were going to "hang out" and smoke weed.

[36] While she was in his vehicle, he inquired if she was willing to make money by having sex with men. He said that he would take care of finding the men, that she would get most of the money and that he would only keep a small amount. At first, she was hesitant, but eventually she accepted. He made her think it was okay.

[37] When they first started hanging out, he was very nice and sweet; he offered to take care of her and buy her things; he made her feel good about herself.

[38] On February 20, 2018, after she agreed to start working as an escort, he drove her to the Motel 6 in Mississauga. There, he took approximately three photographs of her. She was clothed and he told her to lay face down on the bed. The photographs zoomed in to focus on her buttocks.

[39] She asked what the photographs were for. He told her they were for her advertisements on the website Backpages.com. He also told her he would pay and post the advertisement for her. She had never heard of Backpages.com before this.

[40] When he posted her ads, he also set the prices. The rate was $80 for a half an hour with a client at a hotel. He asked her which sexual acts she was prepared to do, she responded "not anal". He taught her how to speak with clients, and taught her to take the money up front.

[41] That first night at Motel 6, she received two clients. After that, he drove her home but did not give her any money. He continued to contact her regularly and ask if she wanted to make money.

[42] Approximately two days later. He told her that he did not want to go to hotels anymore. Instead, he took her to private residences in Mississauga and Toronto. He set the rate of $180 for seeing clients at their residence.

[43] She saw three or four clients that night. He collected the money after each client and put it in his wallet. Afterwards, he dropped her off near her home and gave her $60.00 cash.

[44] Every time she saw a client, she turned the money over to him. Sometimes while working, clients shortchanged her. When he found out afterward, he would become angry, stating "you can't let people walk all over you". She thought to herself that was what he was doing to her.

[45] During this time, he also told her that if she was asked, she could say she was an escort, but that she could not say she has a pimp because "pimping is illegal".

[46] C.C. did not recall telling him that she was only 17, however, she did recall him saying that she needed to tell clients that she was older, which she did.

[47] The third and last time she worked for him, he picked her up at her residence. He drove her to each client's residence. She saw three or four clients on that night. When he dropped her back at home, she asked how much money he would give her. He stated $50. However he did not have a $10 bill, as a result, he said he would give her $60.00. She asked for more but he said that he needed it more than she did, so he only gave her $40. This caused her to become angry. She got out of the car and slammed the car door. This was the last time she ever saw him, however, he continued to contact her to see if she would work again.

[48] During the time she worked in the sex trade for Mr. Meshreky, C.C. had unprotected sex with at least two clients. On one occasion, a client gave her cocaine.

[49] Mr. Meshreky was very nice to C.C. in the beginning, but as soon as he was making money he began treating her badly. He told her not to tell her mother about her doing this kind of work, which scared her. She felt like she could not call for help, nor would she have a ride home if she left and she often did not know where she was.

[50] She eventually did report all of this to the police and Mr. Meshreky was arrested.

THE IMPACT ON THE VICTIMS

[51] I received Victim Impact Statements from C.C. and her mother.

[52] C.C. wrote:

The impact of what Andrew has done to me has caused me horrific feelings of disgust and shame in myself and who I am as a person. It is so hard for me to go and do things or even going out on a daily basis when all I can feel is this constant disappointment and anger in myself, that has made me think about suicide because I can't deal with or live with all the memories that are so disgusting. I never wanted to have gross older men have sex with me or even touch me or do the terrible things I had to do with these men but Andrew really made me trust him and he said it was all for us so we could be together and he was watching me and taking care of me so I believed him.

[53] C.C. spent five months in a residential treatment center away from her home.

[54] She now attends at hospital from 9 am to 2 pm daily as an out-patient for daily therapy and coping strategies.

[55] She has been diagnosed with post-traumatic stress disorder and has been prescribed four different medications.

[56] She lives with flashbacks. Anytime she sees an older man it reminds her of some of the men and she breaks down or completely closes herself off.

[57] She has nightmares so bad that it has affected her sleep. She wakes up crying in a panic, re-living what took place with the men.

[58] She has extreme guilt, shame, disgust and a hate for herself and is embarrassed of it all and has a very hard time talking about it.

[59] She concluded her Victim Impact Statement with the following:

I hate thinking about all of this so this has been really hard to write. I can never trust anyone again, and I will never be the same again.

[60] Her mother described the effect that these offences had on C.C.

[61] She also described the impact on the family, writing:

We all as a family live so differently since it happened, as all of us including C.C.'s older sisters live with so much worry and stress. My husband and myself both had to take time off work when this first happened as we were devastated and overwhelmed with sadness that this was now something our daughter has to live with and where do we begin to start to repair the damage that has been caused to her and how could this happen when she has already been through so much in her life. We all just held on to whatever hope we could feel and started the process of setting up all and any help that was out there and available to her and stayed right by her side. My husband had to go back to work as we needed at least one form of income for the family as I was not working, I did end up trying to go back to work a month after it all happened for financial reasons but it did not last long, as my boss noticed I was crying often at work and came to talk to me, so I confided in him what was happening, which really upset him to hear, he then told me to leave work to go to see my doctor and take a leave of absence from work, he was worried about me and said I should be at home with my daughter. I, now to this day have not returned to work again, financially it is harder but C.C. needed me more at home with her then any amount of income I would make at work. I cry at night when I go to bed asking myself how will I ever be able to help make my daughter feel whole again or take away her pain, how our once little girl could grow up and be used for human trafficking and have to carry the scars of it and I was not able to fix it all for her.

BACKGROUND OF MR. MESHREKY

[62] I have been provided with the following information.

[63] Mr. Meshreky is currently 27 years old. He was 26 at the time of the offences.

[64] He resides with his mother and his brother. His father is in Egypt.

[65] He completed high school and then obtained a bachelor of engineering degree. He was a good student. He intends to pursue further studies in the future.

[66] Since graduating he has held a number of jobs although he is currently unemployed. The charges against him are partly responsible for this.

[67] He had no prior criminal record.

ANALYSIS

[68] Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton, supra by stating:

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge.

[69] Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is "a highly individualized exercise that goes beyond a purely mathematical calculation."

[70] General deterrence and denunciation are clearly the most important principles of sentence in this case, but I must not lose sight of the other principles.

[71] I must craft a sentence that is proportionate to the gravity of the offences committed and the degree of responsibility of Mr. Meshreky and yet, at the same time, one that is responsive to his unique circumstances.

[72] I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence here.

[73] I have identified the following as factors in this case.

Aggravating Factors

[74] Mr. Meshreky courted or groomed C.C. before convincing her to become involved in prostitution.

[75] He then created the rules and controlled the clients and services. He instructed C.C. on what to say and do. She was able to come and go as she wanted but Mr. Meshreky exerted considerable control over her.

[76] I was not advised of exactly how much money was made but it was clear that most of it went to Mr. Meshreky and C.C. received very little.

[77] C.C. was the only young woman exploited in this case.

[78] She was only 17 years old, but the agreed facts make it clear that Mr. Meshreky did not know this. Nor did he know that she was developmentally delayed. It would have been clear to him however that she was a relatively naïve young woman and he took full advantage of that fact.

[79] All of the sexual acts occurred in a hotel room or the residence of the customer. Condoms were provided, although on two occasions C.C. engaged in sexual intercourse with a customer and a condom was not used.

[80] This was a relatively small operation, with little planning involved and was not particularly sophisticated. It was not however something that was arranged or carried out on the spur of the moment.

[81] C.C. engaged in sexual acts with eight to ten men over three days.

[82] No explicit threats were made, no implied threats were referenced in the agreed statement of fact and no actual violence was used.

[83] As noted above this offence had a huge impact on C.C. She lost her childhood and her innocence.

[84] Mr. Meshreky did not engage in any sexual acts with C.C.

[85] His conduct was motivated by greed.

Mitigating Factors

[86] There are a number of mitigating factors in this case.

[87] Mr. Meshreky is a young man.

[88] He had no prior criminal record.

[89] He pled guilty. I take this to be an acceptance of responsibility as well as an expression of remorse. Most importantly, it made it unnecessary for the victim to testify. She was spared the ordeal of revisiting her victimization in a public courtroom.

[90] He has repeatedly expressed remorse for what he has done.

[91] He has the support of his family which improves his prospects of rehabilitation.

Conclusion on Sentencing

[92] After considering all of the above, I am satisfied that the joint submission for a sentence of imprisonment for two years is reasonable.

[93] All three offences arose out of the same series of events and I am satisfied that the sentences should run concurrently.

[94] I am further satisfied that this should be followed by a period of probation.

[95] In that regard, I note that the relevant portions of section 732.1(3)(h) of the Criminal Code reads as follows:

732.1 (3) The court may prescribe, as additional conditions of a probation order, that the offender do one or more of the following:

(h) comply with such other reasonable conditions as the court considers desirable….for protecting society and for facilitating the offender's successful reintegration into the community.

[96] The Supreme Court of Canada has stated that reasonable conditions will generally be linked to the particular offence but need not be. What is required is a nexus between the offender, the protection of the community and his reintegration into the community.

[97] The residual power to craft individualized conditions of probation is very broad. It constitutes an important sentencing tool. The purpose and principles of sentencing set out in ss.718 to 718.2 of the Criminal Code makes it clear that sentencing is an individualized process that must take into account both the circumstances of the offence and of the offender. A sentencing judge is to craft conditions that are tailored to the particular offender to assist in his rehabilitation and protect society.

[98] In this case, a probation order will prohibit Mr. Meshreky from contacting or communicating with C.C. Counsel for Mr. Meshreky argued that he will stay away from her in any event. I find that his assurances are not enough. C.C. is entitled to the added protection that the probation order will provide.

[99] Further, I am satisfied that it is appropriate to ensure that Mr. Meshreky will follow through with appropriate counselling following his release.

[100] With respect to the duration of the order, I will simply say that had Crown counsel requested a longer period of time, I would have been inclined to grant it.

SENTENCE

[101] For the above reasons, I sentence Mr. Meshreky as follows.

[102] With respect to each of the charges, I sentence him imprisonment for two years, concurrent.

[103] That will be followed by probation for 18 months.

[104] The terms of the probation will require that Mr. Meshreky:

(1) keep the peace and be of good behaviour;

(2) appear before the court when required to do so by the court;

(3) notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;

(4) report in person to a probation officer within two working days of his release from custody and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in his supervision;

(5) cooperate with his probation officer. He must sign any releases necessary to permit the probation officer to monitor his compliance and he must provide proof of compliance with any condition of this order to his probation officer on request;

(6) not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with C.C., her parents or her siblings;

(7) not be within 20 metres of any place where he knows them to live, work, go to school, frequent, or any place he knows them to be;

(8) attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer.

[105] I also make the following ancillary orders.

[106] The procuring offence, and the receive material benefit offence are both primary designated offences and I make an order pursuant to section 487.051 of the Criminal Code, authorizing the taking from Mr. Meshreky of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

[107] Finally, I make an order pursuant to section 743.21 of the Criminal Code prohibiting any contact or communication by him with C.C., her mother or father or any siblings during the custodial portion of his sentence.

Released: May 30, 2019

Signed: Justice D.A. Harris