COURT FILE NO.: CR-16-1549-00 DATE: 20170615

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN V. Puls, for the Crown

• and -

D.A. D. Johnson, for the defence

HEARD: May 18, 2017, at Brampton

REASONS FOR SENTENCE

RESTRICTION ON PUBLICATION By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

André J.

[1] A jury convicted D.A. on March 14, 2017 of the offences of exercising control, direction or influence over K.L. for the purpose of exploiting her; unlawfully receiving money, knowing it came from the commission of a Criminal Code offence and exercising control, direction or influence over K.L.’s movements thereby aiding, abetting or compelling her to engage in prostitution. The jury acquitted D.A. of using a handgun while robbing K.L., unlawful confinement, sexual assault and gang sexual assault. The Crown seeks a sentence of 6 years imprisonment and a number of ancillary orders, while D.A.’s counsel submits that the appropriate sentence is a 30-month term of imprisonment.

FACTS

[2] D.A. met K.L. sometime in 2014 and developed a relationship with her. She then came up with a plan in which he would be her protector while she engaged in prostitution. She proposed that she would give him 50% of the money which she received from her clients. She had previously made similar arrangements with other males.

[3] Two days after this financial arrangement, D.A. brought a second male into the arrangement. Thenceforth, D.A. and this male kept all of K.L.’s earnings from prostitution. On one occasion, the male repeatedly struck K.L. because he mistakenly believed that she had stolen $250 from him. D.A. was in the hotel room when this happened but did not intervene.

[4] On another occasion, D.A. and his companion struck and kicked K.L. after she had gone to a nearby Tim Hortons restaurant for something to eat. She suffered a broken finger as a result. A police officer observed bruises on her forearm. Another police officer later arrested D.A. in the area where the assault occurred and found K.L.’s identification card in his possession.

PRE-SENTENCE REPORT

[5] D.A. is the elder of two children from his parents’ union. He has three paternal half-sisters and one paternal half-brother. D.A. came to Canada from Jamaica when he was 5 or 6 years old.

[6] D.A.’s upbringing was uneventful. He was placed in a special class for “slow” learners. He was diagnosed with Attention Deficit Hyperactivity Disorder. He did not graduate from high school. He was expelled after an altercation with another student. Prior to that he had been suspended several times for fighting and for “rude” behaviour.

[7] D.A. is employed at a warehouse. He is a social drinker. He smokes marijuana occasionally.

[8] About the incident, D.A. told the probation officer that he was in the wrong place at the wrong time. His mother advised that D.A. could benefit from anger management counselling. D.A. has no criminal record.

GENERAL PRINCIPLES

[9] Section 718 provides that 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; (b) to deter the offender and other persons from committing crimes; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparation for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

[10] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[11] Section 718.2 provides that in sentencing an offender the court shall take into consideration a number of principles including the following:

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (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 shall be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

ANALYSIS

[12] The determination of a proportionate sentence, having regard to the gravity of the offence and the personal circumstances of D.A., necessarily involves a consideration of the aggravating and mitigating factors in the case.

[13] The aggravating factors include the following:

(1) K.L. was subjected to physical violence and suffered bruises and a broken finger; (2) D.A. took all of K.L.’s money and only gave her $5 a day for food; (3) D.A. took K.L.’s ID to maintain control over her; (4) The sexual exploitation lasted approximately ninety days.

[14] The mitigating factors include the following:

(1) D.A. has no criminal record; (2) D.A. enjoys the support of his family; (3) D.A. did not recruit K.L. into prostitution; (4) D.A. was a relatively unsophisticated person who was introduced to the sex trade by K.L.; (5) D.A. did not compel or coerce K.L. to engage in illegal sexual activity; and (6) D.A. has been on a restrictive recognizance since the incident and has not reoffended since his release.

[15] In R. v. Miller, [1997] O.J. No. 3911 (Q.L.), per Justice Casey Hill at para. 38 (Ct. J. (Gen. Div.)), referred to the case of R. v. Tang, 1997 ABCA 174, [1997] A.J. No. 460 (Q.L.) (C.A.), which listed the following factors as relevant to the sentencing of an offender convicted of living off the avails of prostitution:

1. The degree of coercion or control imposed by the pimp on the prostitute's activities;
2. The amount of money received by the pimp and the extent to which the pimp allowed the prostitutes to retain their earnings;
3. The age of the prostitutes and their numbers;
4. Any special vulnerability on the part of the prostitutes;
5. The working conditions in which the prostitutes were expected or encouraged to operate, including their physical surroundings in terms of soliciting customers and servicing customers, and safety concerns, in addition to whether appropriate health safeguards were taken;
6. The degree of planning and sophistication, including whether the pimp was working in concert with others;
7. The size of the pimp's operations, including the numbers of customers the prostitutes were expected to service;
8. The duration of the pimp's exploitative conduct;
9. The degree of violence, if any, apart from that inherent in the pimp's parasitic activities;
10. The extent to which inducements such as drugs or alcohol were employed by the pimp;
11. The effect on the prostitutes of the pimp's exploitation; and
12. The extent to which the pimp demanded or compelled sexual favours for himself from the child prostitutes.

[16] Hill J. further noted at para. 39 that sentences within the range of four to five years are reserved for offenders who have coerced a woman into becoming or remaining a sex trade worker and exercised a significant degree of control over her activities. Where the element of coercion is lacking and the offender “merely” relies on the earnings of the sex trade worker, the appropriate sentence range is two to three years imprisonment. A sentence of twelve to eighteen months imprisonment is appropriate where the offender receives money from the sex trade worker but the relationship cannot be characterized as one of exploitation. Justice Hill noted in Miller, at para. 40 that these categories “serve to provide some general guidance as to the degree of seriousness of prostitution-related criminality.”

[17] One of the cases which the Crown relies on is R. v. R.R.S., 2017 ONSC 642, [2017] C.C.S. No. 802. In that case, the accused was convicted of human trafficking, receipt of material benefits, withholding documents to facilitate trafficking, assault, uttering a threat and breach of undertaking. The complainant had been an exotic dancer who had worked as an escort under the accused’s direction. She testified that he beat her regularly and kept virtually all the money she earned from her escort services. The judge sentenced him to a global five years imprisonment; a sentence upheld by the Court of Appeal.

[18] In R. v. Mfizi, [2008] O.J. No. 2430 (Q.L.) (Sup. Ct.), a jury convicted the accused of a number of prostitution-related offences and assault. The complainant was 17 when she met the accused. She testified that he controlled her through violence and intimidation and forced her to engage in prostitution. The accused had a criminal record for violence. The court sentenced the accused to a global sentence of 8 years. The facts of that case however, are clearly more egregious than those in the instant case.

[19] Defence counsel relies on a few cases for his submission that the Crown’s position of six years is extraordinarily high.

[20] For example, in Tang, the Alberta Court of Appeal upheld a five year term of imprisonment for an offender convicted of living off the avails of prostitution. Although there was no violence or intimidation, the facts were statutorily aggravating given that the offender had solicited and provided customers for two children aged 13 and 14 while they engaged in acts of prostitution.

[21] In R. v. McPherson, 2013 ONSC 1635, [2013] O.J. No. 1254 (Q.L.) Justice Baltman sentenced an offender who had been convicted of procuring his 19-year-old girlfriend to become a prostitute and controlling her movements, to a global sentence of three years imprisonment. She worked for him as a prostitute for one and one-half years during which she turned all her earnings over to him. Unlike this case however, there was no evidence that the accused had been violent to her.

[22] In R. v. Estrella, [2011] O.J. No. 6616 (Q.L.) (Sup. Ct.), Justice Corbett sentenced Ms. Estrella who had been convicted by a jury of four counts of prostitution-related charges, including living partly on the avails of prostitution, and aiding, abetting or compelling a person to engage in prostitution, to a global sentence of 30 months imprisonment. The victim had been a 16-year-old high school student when she was procured into prostitution. Ms. Estrella had also coached her into becoming a prostitute and had placed her photos on the internet.

[23] Defence also submits that a 30-month sentence is justified given the Crown’s failure to prove beyond a reasonable doubt that D.A. assaulted K.L. He suggests that the jury acquitted D.A. on all the charges where violence was involved.

[24] The jury convicted D.A. of exercising control over K.L. and directing and influencing her movements. K.L. testified that in addition to keeping all the money she made through prostitution, D.A. assaulted her on one occasion in July 2014. She suffered bruises and a broken finger. It is unknown whether the jury found that the Crown had proven this assault beyond a reasonable doubt.

[25] In R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 18, the Supreme Court of Canada cautioned that “when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts”. To rely on this factor as an aggravating factor, I must be convinced of its existence beyond a reasonable doubt.

[26] K.L. testified that D.A. and his companion repeatedly struck and kicked her in July 2014. The police were summoned. An officer took a videotaped statement from K.L. He observed bruises on both her arms. She had a broken finger. A medical report dated a few days later confirmed the injury. K.L. told the police that her finger had been broken following a fall. She attributed the bruising to her skin bruising easily.

[27] K.L.’s statement to the police regarding the origins of her injury must be viewed in the context of her relationship with D.A. She feared him. He held her identification card. She was therefore reluctant to implicate D.A. and his companion in the injuries.

[28] Based on the totality of the evidence, I find that the Crown has proven beyond a reasonable doubt that D.A. assaulted K.L. in July 2014, and caused the injuries which she complained about.

[29] In my view, the facts of this case straddle categories one and two set out in Miller at para. 39. While there was violence in this case, neither D.A. nor his companion coerced K.L. into becoming a sex trade worker. To the contrary, she approached him and requested that he act as her protector. However, the element of coercion is present in this case given that D.A. retained virtually all of K.L.’s earnings and even her identification card. The cases of Tang and Estrella involve underage girls. In McPherson, the accused received a three year term of imprisonment despite the fact that she worked for the accused as a prostitute for one and a half years, as opposed to three months as in this case. However, there was no allegation of violence in the McPherson case. The accused in Mfizi, who had a criminal record, forced the victim to engage in prostitution, unlike D.A.

[30] In my view, the appropriate sentence range in this case is three to four years imprisonment.

[31] There is no doubt that general deterrence is of paramount importance in this case. Irrespective of K.L.’s life choices, she has the unfettered right to live her life free from abuse, coercion or exploitation. The fact that she made a proposal to D.A. did not give him a licence to physically abuse her or deprive her of virtually all her earnings. D.A. took advantage of K.L.’s vulnerability and presumably her reluctance to contact the authorities. Indeed, when K.L. spoke to the police in July 2015, she attributed her broken finger to a fall.

[32] That said, D.A. has no record. He enjoys a great deal of family support particularly from his mother. His world has been rocked by the recent discovery that she has been diagnosed with breast cancer. This will hopefully have a salutary effect on D.A. and serve as a catalyst for positive changes in his life. D.A. should receive credit for the 3 days he spent in pre-trial custody and additional credit for the strict recognizance which he was on despite its variation in March 2016.

[33] In my view the appropriate sentence in this case is one of three and a half years imprisonment. The sentence will be broken down as follows:

1. Three and a half years on the charge of human trafficking (Count 4);
2. Two years concurrent on the charge of receiving a financial benefit from prostitution (Count 5);
3. Two years concurrent on the charge of exercising control thereby aiding, abetting or compelling K.L. to engage in or carry on prostitution (Count 6);

ANCILLARY ORDERS

(1) There will be a DNA order. (2) There will be a SOIRA order for 20 years. (3) There will be a s. 110 prohibition order. (4) Victim fine surcharge.

André J.

Released: June 15, 2017