Court File and Parties

Court File No.: CR-15-1247

Superior Court of Justice

Her Majesty The Queen

v.

N.J.

Reasons for Sentence

Before The Honourable Justice C. Hill

on April 18, 2017 at Brampton, Ontario

Information contained herein is prohibited from publication pursuant to section 486 of the Criminal Code by order of The Honourable Justice C. Hill.

Appearances

Counsel for the Crown: K. Holmes Counsel for N.J.: C. Assie

Reasons for Sentence

Hill, J. (Orally):

Introduction

On April 3rd, 2017, N.J. pled guilty to six counts of a 17-count indictment.

The counts upon which the offender now stands to be sentenced are as follows:

• Count No. 4: Assault N.G.
• Count No. 6: Procuring, s.212(1)(h), P.F.
• Count No. 9: Procuring, s.212(1)(h), A.A.
• Count No. 11: Procuring, s.212(1)(h), K.C.
• Count No. 12: Assault K.C.
• Count No. 15: Procuring, s.212(1)(h), D.T.

It falls to be determined what a fit and just sentence is for these crimes.

The Facts

The background facts described in an agreed statement of facts entered as Exhibit 1 on these proceedings were read into the record on the April 3rd appearance.

The crimes described in Counts 4, 6, 9, 11, and 12 occurred in the approximate three-month time period of October 21st, 2010 to January 31st, 2012.

The assault on Ms. D.T., Count No. 15, occurred in the time period of August 6 to 11, 2012.

The four complainants, aged 15 to 19, worked as prostitutes in the sex trade.

The offender engaged in driving the complainants, effecting linkages between some of them relating to work in the sex trade, and in renting rooms for the purposes of the complainants engaging in sexual acts for money with a significant portion of the monies in turn being given to the offender.

Mr. N.J. had a romantic intimate relationship with at least, Ms. N.G. and Ms. K.C., and had sexual relations as well with the other complainants.

The assault of Ms. N.G., Count No. 4, occurred during an argument when the offender slapped her across the face. The assault that Ms. K.C. described in Count No. 12, again, during an argument, involved the offender pulling the victim downstairs, her falling, and then being slapped in the face a few times.

The Offender

Mr. N.J.’s date of birth is May 19th, 1982. He is currently 34-years-of age, and was aged 29 to 30 years at the time of commission of the offences.

He was born in Jamaica and is currently a Canadian citizen. Mr. N.J. has no prior criminal record. He completed high school, on his evidence, prior to his August 28, 2012 arrest. He resided with his mother and her husband, as well as his uncle.

Mr. N.J. testified that he had been working as a DJ. The offender is a father of four-year-old boys.

The Victim Impact Statements

Victim impact statements, entered as Exhibit 2, were filed by the complainants. Unfortunately, the statements were not in the prescribed Form 34.2 format required by the Criminal Code.

That said, the contents of the statements, which vary of course, expressing a range of reported information including recognition of the loss of dignity and self worth from participation in illicit prostitution, emotional trauma, resulting relationship difficulties, and the particulars of their healing process and recovery.

In Ms. P.F.’s case, she became pregnant and contracted herpes during the course of her prostitution activities.

The Offender’s Post-Arrest Bail Status

In his testimony this morning, Mr. N.J. informed the court of the circumstances of his custody and bail in the over four and a half years since arrest. This evidence was supplemented by Exhibit Number 3, a Maplehurst Correctional Complex lockdown summary, describing such matters as the offender’s custody at that institution, and including cell size, double occupancy, and 44 occurrences of full lockdown restricting liberty and shower availability.

Counsel are agreed that Mr. N.J. has served 335 days of presentence custody, and 1369 days have been served on house arrest bail conditions — this included absence from the dwelling-house only being permissible in the company of a surety, effectively negating any opportunity for lawful employment and frustrating Mr. N.J.’s opportunities for full child access or the ability to provide child support for his sons.

Positions of the Parties

On behalf of the Crown, Ms. Holmes submitted that a fit global sentence would be 10 years with 7-year sentences for some of the offences to which Mr. N.J. pled guilty with individual sentences totalling approximately 21 years, but worthy of reduction to ten years on the totality principle.

Ms. Holmes emphasized deterrence and denunciation as the dominant sentencing principles of concern for a number of reasons, including the nature of the crimes, the number of complainants, and their ages, and the societal views respecting offences of pimping out young girls, as reflected in the 2014 Code amendments which upgraded significant mandatory minimum sentences of incarceration.

Crown counsel emphasized a number of factors including the vulnerability of the young women, their youth, the nature of the work they performed to compensate the offender, and the impact of the crimes upon their lives.

On the offender’s behalf, Mr. Assie recommended that a sentence of two years less one day of incarceration would be a fit disposition, having regard to the presentence custody and strict bail terms to which the offender has been subject.

Mr. Assie further emphasised, in support a recommended sentence, the lack of a prior criminal record, the guilty pleas, sparing the complainants from testifying a second time, and avoiding a lengthy jury trial with justiciable issues, as well as Mr. N.J.’s status as a father.

Counsel explained that the overall delay in this case with adjournments of both the preliminary inquiry and an earlier trial date to have been contributed to by medical issues of two defence counsel and not the offender’s manipulation of the system.

The Fit Sentence

The aggravating circumstances of this case are manifestly apparent, including:

1. The number of crimes for which the offender stands convicted, and the nature of these offences, which as acknowledged by Crown counsel involved violence in the two assault counts, but much less violence than we ordinarily see in the s.212 offences coming before the court;
2. The number of young women with whom the offender engaged in the procuring crime;
3. Mr. N.J. acted as a pimp for teenagers;
4. The impact of the crimes upon the complainants; and
5. The assaultive behaviour against two of the complainants had a domestic violence context.

In the balance in mitigation, these factors fall to be considered:

1. Mr. N.J. is a first-offender.
2. The offender pleaded guilty, though not an early plea and the complainants did not have to testify again and a lengthy jury trial was unnecessary.
3. For a significant period of time, the offender was subject to highly restrictive bail conditions of house arrest.
4. The delays since the crimes and arrest.
5. The offender is a father with young children and is said to be motivated for rehabilitative change.

On the subject of the Downes adjustment for harsh bail conditions as a mitigatory factor, it does not lend itself to a mathematical calculation such as presentence custody under s.719 of the Criminal Code. That said, in the present case, this is, however, to be weighed as a substantial mitigating factor having regard to the terms and conditions, and their duration.

The offender operated as a pimp. Although working as a DJ, ordinarily a form of part-time employment, the offender was able to supplement any such income by servicing a number of young women in various phases securing compensation in return for their work.

There is a predatory character to the crimes before the court. Although the complainants may not have been directly recruited into prostitution by the offender, except, perhaps Ms. D.T., his measure of direction, control and influence was in such a manner as to aid and abet the youthful sex trade workers serving to encourage their ongoing participation in the sex trade, an occupation which can be dangerous from many respects, including violence and negative health implications.

Even without full control or the expressed cohesive use of threats of violence, an offender operating as Mr. N.J. did, living parasitically upon vulnerable teenagers alone and away from their families and having at best modest education and employable skills and little or no funds of their own, amounts to engagement in an exploitive relationship.

Apparent acts of kindness or romantic involvement with his income sources, effectively doubling as boyfriend and pimp, simply served to further the existence of the employment relationship from which he benefitted.

The section 212(1)(h) crime is punishable by a maximum term of incarceration not exceeding ten years and the assault offences attract the maximum punishment of five years.

While it is “not an offence to sell sex for money,” various crimes set out in Part VII of the Criminal Code target parasitic relationships associated with prostitution. See, Canada Attorney General v. Bedford, 2013 SCC 72, at paras. 1, 5, 61, 66.

In this straddle period of dealing with cases prior to the sentencing amendments, the court must exercise caution not to escalate the sentencing floor for pre-amendment crimes to conform with the new and separate sentencing regime which exists today.

Given the highly individualized nature of sentencing, having regard as it does to particular circumstances of an offender and his crimes, reference to other cases of varying similarity is of only general assistance.

In R. v. Bennett (2004), 184 C.C.C. (3d) 290 (Ont. C.A.), the Court considered a six-and-half-year total sentence to be fit in circumstances of an offender convicted after trial of a number of prostitution-related crimes involving three complainants under 18 years of age.

At paragraph 77, Moldaver, J.A., as he then was, observed that:

...[t]he appellant’s crimes were despicable and he deserved to be severely punished. He engaged in a pattern of pimping and preying on young vulnerable girls for personal financial gain.

In R. v. Rose, [1997] O.J. No 1947 (C.A.), the court upheld a five-year sentence for an offender who, after a trial, was convicted of nine prostitution-related charges. The circumstances included assaults of two of the young women.

Ms. Holmes agreed that the 335 days of presentence custody could be assessed on a 1.5:1 basis. Mr. Assie sought to have 44 of those days of presentence assessed on a 2:1 basis in recognition of the harsh nature of the 44 full lockdown occurrences, with the remainder of the days credited at 1.5:1.

An offender held in presentence custody, who was subsequently convicted, is generally entitled to credit on sentence for presentence custody at the rate of 1.5:1. R. v. M.O., [2016] ONCA 236, at para. 22. This is not an invariable rule — “[t]he applicable principle comes from [Summers, 2014 SCC 26, [2014], 1 S.C.R. 575]: 1.5 for 1 credit can be denied if the possibility of early release or parole is highly unlikely:” R. v. Beckworth, 2015 ONCA 588, at para. 2; See also R. v. Summers, at para. 71; and more generally as to presentence custody credit, See R. v. Mawout, 2017 ONCA 168, at para. 3; R. v. Perkins, 2017 ONCA 152, at para. 7.

And I note that in R. v. R.R.S., 2017 ONCA 141, at para. 14, the court stated:

...a principal focus of credit for presentence custody must be on the conditions in detention centres: see, R. v. Summers, 2014 SCC 26, at para. 70. The trial judge properly applied this focus in her consideration of the appellant’s detention from conviction to sentence, and gave a 1.5:1 credit.

In R. v. Tulloch, 2014 ONSC 6120, I discussed the exceptional circumstances in which a court may afford mitigatory credit for particularly harsh conditions of presentence custody. Applying the principles discussed in that case, and not being aware of all the reasons for the full lockdowns in Mr. N.J.’s case, I am not persuaded that any presentence custody enhancement beyond that provided for in s.719(3.1) is warranted in the circumstances of this case.

In the circumstances of six crimes before the court, the global or total or effective sentence must itself be a fit disposition, having regard to the nature of the offences committed, the moral blameworthiness of the offender and his personal circumstances.

In R. v. Ahmed, 2017 ONCA 76, at paras. 79, 81, 84-85, the court stated:

[79] The totality principle is a particular application of the general principle of proportionality.... It 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...

[81] The Crown says that the trial judge erred in his approach to totality: first he should have fixed an appropriate sentence for each offence without regard to totality, and then he ought to have looked at the total sentence to assess whether or not it was excessive as to Mr. Ahmed’s overall culpability, using the combined maximum sentences of 24 years as the standard. This, according to the Crown, is what is anticipated by s.83.26 of the Criminal Code. The Crown contends that the trial judge, in invoking the totality principle before setting out the sentences for the individual offences, frustrated the will of Parliament expressed in the requirement to impose consecutive sentences, and in effect imposed the equivalent of a concurrent sentence.

[84] First, I address the Crown’s argument that sentences should initially be fashioned for each count and then subsequently adjusted (if necessary) in accordance with the totality principle. This approach has been endorsed in certain appellate decisions from other provinces: R. v. Punko, 2010 BCCA 365, 258 C.C.C. (3d) 144, at paras. 93-96, leave to appeal to SCC ref’d (2011), 303 B.C.A.C. 320 (note); R. v. Hutchings, 2012 NLCA 2, 282 C.C.C. (3d) 104, at paras. 20-26, and 84; R. v. Adams, 2010 NSCA 42, 255 C.C.C. (3d) 150, at paras. 23-28; and R. v. Draper, 2010 MBCA 35, 253 C.C.C. (3d) 351, at para. 30. See also the trial level decision in Ontario in R. v. M.E., 2012 ONSC 1078, 100 W.C.B. (2d) 610, at paras. 63-69. The Crown says that, if the judge had first determined Mr. Ahmed’s individual sentences for each offence, and then adjusted the sentence, looking to an available range of 24 years, he would have sentenced Mr. Ahmed to a much longer sentence of imprisonment.

[85] I disagree with the Crown’s submission that the trial judge made a legal error in his application of the totality principle. The approach taken by the trial judge here is consistent with the decision of this court in R. v. Jewell (1995), 100 C.C.C. (3d) 270 (Ont. C.A.). In Jewell, this court said that the trial judge should first identify the gravamen of the conduct giving rise to all of the criminal offences, and next determine the total sentence to be imposed. “Having determined the appropriate total sentence, the trial judge should impose sentences with respect to each offence which result in the total sentence, and which appropriately reflect the gravamen of the overall criminal conduct:” p. 279. See also R. v. R. B., 2013 ONCA 36, 114 O.R. (3d) 465, at para. 30, where this approach to totality was followed, and R. v. Smith, 2011 ONCA 564, 274 C.C.C. (3d) 34, at fn. 2, where this court, referring to the differing approaches in the appellate courts (citing Jewell, Adams and R. v. Wozny, 2010 MBCA 115, [2011] 2 W.W.R. 630 (C.A.)), noted that the “proper approach to sentencing an offender for multiple offences is unsettled.”

Having regard to all the circumstances, the offender is deserving of a sentence approaching five years.

Having regard to the Downes factor in this case, and the duration of a house arrest term, and with credit for 502 days of presentence custody, a period just shy of 17 months, the offender is sentenced as follows:

• Count No. 6: three years.
• Count Nos. 9, 11, and 15: three years concurrent on each count and concurrent to the sentence imposed on Count 6.
• Count Nos. 4 and 12: three months concurrent to one another, and concurrent to the sentence imposed on Count No. 6 with an effective total further sentence of three years’ incarceration.

In addition, there will be a s.110(1) weapons prohibition order for a period of ten years, and a DNA order as signed on this date.

Ms. Holmes, I take it all other counts in the indictment will be withdrawn at your request?

MS. HOLMES: Yes, please.

THE COURT: To be so endorsed on the indictment. Any questions arising out of what I have read?

MR. ASSIE: No, Your Honour.

THE COURT: Ms. Holmes, on your part?

MS. HOLMES: No, thank you.

THE COURT: Thank you very much.

...WHEREUPON THESE PROCEEDINGS CONCLUDE.

Certificate of Transcript

Form 2

Certificate of Transcript (Subsection 5(2)) Evidence Act

I, Rosemarie Hall certify that this document is a true and accurate transcription of the recording of R. v. N.J. in the Superior Court of Justice held at 7755 Hurontario Street, Brampton, Ontario, taken from Recording No. 3199_406_20170418_084432__30_HILLCAS.dcr which has been certified in Form 1.

[Original to be signed by]

July 6, 2017 (Date) Signature of Authorized Person Rosemarie Hall Authorized Court Transcriptionist ACT ID No. 9001646627 Rosemarie5hall@aol.com