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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2019-07-16

Court File No.: Central East - Newmarket 4911-998-17-08314, 4911-998-18-10614

Between:

HER MAJESTY THE QUEEN

— AND —

SHAMAR MORGAN

Before: Justice P.N. Bourque

Counsel:

• Michael Ventola for the Crown
• Shane Martinez for the Defendant

Reasons for Sentence

Released on July 16, 2019

Overview

[1] The defendant has pled guilty to an offence under s. 286.2(1) of the Code in that he took a material benefit from a person who was involved in the commission of an offence under s. 286.1(1). Stated simply, he encouraged a young woman (not under 18 years) to be involved in the sex trade. They had been boyfriend and girlfriend. He originally assisted her in the web site advertisement. For a period from June to October 2017, he received various benefits from her in the form of gifts of clothing and jewelry and he assaulted her several times. In one of the assaults he first had a knife on his person and struck her on the face several times with his fist.

[2] There has been filed a victim impact statement where the young woman sets out some of her physical injuries but also the psychological trauma and torment she was under and continues to be under as a result of the actions of the defendant.

[3] The defendant has no criminal record. The defendant filed a comprehensive assessment by Dr. Krystol Kelly dated July 18, 2019. It sets out his family history. He is a young man (born April 14, 1997). He had a difficult childhood and did not know his father. His mother had difficulty meeting his needs. He did not do well in school and is lacking a secondary diploma. He has worked and expresses the wish to work. He has worked at several labour jobs and has done volunteer work.

[4] With regard to recidivism, the doctor expressed that he is in the moderate risk range. The report also expresses that he has a mood disorder.

[5] The defendant has pled guilty and I accept it as a sign of remorse. I also take note of the fact that by pleading guilty, he has spared the complainant the further trauma of attending in court to tell her story. He has expressed his remorse in a letter to the court. I accept it at face value.

[6] The Crown seeks a period of custody of four and-a-half years (before a calculation of time served). The Crown points out the following aggravating factors:

(i) Violence to the Complainant: one incident where he was frustrated and leaves the hotel and he returns with a knife and finds her sleeping in bed with the third party. He takes her across the hall and punches her in the face numerous times, causing her eye to swell; pulls out knife again;

(ii) After being charged he attended at the residence of her boyfriend with a sword;

(iii) June to October 2017 – four months;

(iv) Boyfriend and girlfriend;

(v) She began to get into the business after a drug party with him;

(vi) He was benefiting;

(vii) He encouraged her to work at a discounted rate;

(viii) Arranged to work for another man in Mississauga;

(ix) Involved with posting her advertisements at the beginning;

(x) Impact upon complainant.

[7] The defence seeks a period of custody of between one year and 18 months before a consideration of time served.

[8] The defence points to the following mitigating factors:

(i) Guilty plea;

(ii) Youthful first offender;

(iii) He did not control the money – no evidence of money other than gifts – it signifies a much less degree of control;

(iv) Not a situation of coercion and control;

(v) No suggestion that she was doing this against her will;

(vi) Victim was an adult;

(vii) Not a sophisticated matter;

(viii) He did not compel sexual favours for himself.

The Law

[9] The offence carries a maximum term of imprisonment of 10 years.

Section 718 — The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct; (and the harm done to victims or to the community that is caused by unlawful conduct)

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and,

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

Section 718.1 — A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 — A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances (and consistent with the harm done to victims or to the community) should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[10] Both counsel cited several cases to me. Unfortunately, none are from the Ontario Court of Appeal. All are decisions of trial judges in the Ontario and Superior Courts.

[11] The Crown urges upon me a series of cases starting with R. v. Miller, [1997] O.J. No. 3911, that the facts of this case are such that a sentence in the range of 4 to 5 years is appropriate. As an initial matter, the facts of our case, and circumstances of this offender are quite different from the Miller case. The defendant in Miller had a long criminal record, was found guilty of 10 offences and was involved in a rather large and sophisticated bawdy house scheme. I also note that in that case the defendant had much more control over the income of the women. The Crown also cites the decisions in R. v. D.A., 2017 ONSC 3722, and R. v. Ellis, 2017 ONSC 3812. In D.A., the defendant was convicted of human trafficking which drew a sentence of 3-1/2 years, but the "living off the avails" conviction drew a sentence of 2 years, concurrent. In R. v. Ellis, there was no conviction for "living off the avails". I am reluctant to apply sentencing principals for an offence that was not pled to.

[12] The defence cites a similar line of cases (R. v. Tang, 1997 ABCA 174, [1997] A.J. No. 460) and cited in R. v. Miller, which discuss a series of 12 factors, most of which are a reflection of the individual facts in each case.

[13] For the purpose of my decision in this matter I take into account the following aggravating factors:

(i) In the course of this relationship, he committed a serious assault upon the complainant;

(ii) The matter went on for many months although I note that he did not control her money nor derive any substantial income from her activities;

(iii) The facts are not determinative that he undertook any coercive activities or violence to encourage her to begin prostitution. He did encourage her to do so.

(iv) As her boyfriend, he was in a position of trust; and,

(v) The victim impact statement indicates a significant psychological trauma to the complainant.

[14] The following are the mitigating factors:

(i) The defendant is a youthful first offender;

(ii) He has no criminal record;

(iii) He has expressed remorse;

(iv) He did not control her money; and,

(v) The complainant is an adult.

Pre-Trial Custody Credit

[15] The defendant has spent 218 days in pre-trial custody. At a credit of 1.5 to 1 = I would consider pre-trial custody as 329 days.

[16] The defendant applies for an enhanced credit. The application for enhanced credit concerns several issues arising from his custody. The first is the number of lockdowns, which the defendant says is 77 of the 213 days in pre-trial custody.

[17] The defendant was assaulted and suffered a broken jaw. For many days the toilet in his cell did not work. The defendant was extensively cross-examined upon his affidavit setting out these issues. I find that notwithstanding some discrepancies in his affidavit, he was attempting to have an honest recollection not only of the lockdown issues, but also the assault and the "toilet malfunction". With regard to these issues, I believe the injury he received to his jaw and his hearing as a result of an assault upon him, is the most important factor I will consider.

[18] I can, as per R. v. Dunce, 2016 ONCA 754, consider giving him enhanced credit beyond the 1.5 to one. On the facts of this case, I choose not to do so. However I will consider these issues in arriving at an appropriate sentence before applying the pre-trial credit of time served on a 1.5 to one basis.

Sentencing Decision

[19] Taking all of these factors into account and mindful that denunciation and deterrence is a primary consideration, I would sentence the defendant to an initial period of custody of 3 years. However taking into consideration the conditions in custody which in total I accept as being "harsh treatment", I sentence the defendant to a period in custody of 1000 days, less time served of 329 days for a total net sentence from this day forward of 671 days, which will be served in a Provincial reformatory. During his time in custody, there will be a no-contact order with regard to the complainant.

[20] Upon completion of his time in custody, the defendant will abide by the following conditions:

(i) Keep the peace and be of good behaviour;

(ii) Probation for a period of 36 months; report to probation within 72 hours of your 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 your supervision. Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer on request;

(iii) Live at a place approved of by the probation officer and do not change without obtaining the consent of the probation officer;

(iv) Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means with the complainant.

(v) Do not be within 100 meters of any place where you know the complainant to live, work, go to school, frequent or any place you know the complainant to be;

(vi) Do not possess any weapon(s) as defined by the Criminal Code;

(vii) Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer. You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed. You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed;

(viii) Make reasonable efforts to seek and maintain suitable work and provide proof of same as required by the probation officer or supervisor. Attend school or an educational or training program approved of by your probation officer or supervisor and provide proof as required by your probation officer;

(ix) DNA Order;

(x) Section 109 Firearms prohibition for 10 years.

Released: July 16, 2019

Signed: "Justice P.N. Bourque"