COURT FILE NO.: CR-20-00011327 DATE: 20230308

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – TYRONE DWAYNE MCEWAN Defendant

COUNSEL: Kellie Hutchinson, for the Crown Jeffery Couse, for the Defendant

HEARD: December 22, 2022 and February 3, 2023

PUBLICATION BAN Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada.

REASONS FOR SENTENCE

DI LUCA J. :

[1] Following a judge alone trial, Mr. Tyrone McEwan was found guilty of the following Criminal Code (the Code) offences:

Count 1 - Human Trafficking – s. 279.01 Count 2 - Material Benefits from Human Trafficking – s. 279.02 Count 3 - Withhold Documents – s. 279.03 Count 4 - Material Benefits – Commodification of Sex – s. 286.2 Count 5 - Procuring – Commodification of Sex – s. 286.3 Count 6 - Fraud Under $5000 – s. 380

[2] Mr. McEwan is now before me for sentencing. The sentencing hearing commenced on December 22, 2022, when I heard the Crown’s motion for directions on the continued viability of the mandatory minimum sentence for the offence under s. 279.01 of the Code.

[3] That motion was dismissed, and the matter proceeded on the basis that the mandatory minimum sentence under s. 279.01 had been struck down as unconstitutional and was therefore no longer applicable.

[4] The evidence and submissions on sentence were heard on February 3, 2023, after which I reserved my decision to today’s date.

[5] In what follows, I will set out the reasons for the sentence I will impose on Mr. McEwan. I will also provide brief reasons on the Crown’s motion for directions.

The Facts of the Offences

[6] The facts of the offences have been set out extensively in my Reasons for Judgment. Apart from a brief overview, I will not repeat them here in great detail.

[7] The victim, M.M., grew up in difficult circumstances. She left home at age 16. She had limited financial resources and was estranged from her family. At some point she started working in the sex trade in order to support herself.

[8] When she was approximately 18 years old, she met Mr. McEwan through a mutual friend, Mika, while they were working at the Pure Pleasure Spa. At the time, M.M. had no stable residence. She had just managed to get out of an abusive relationship with a former boyfriend. She had no money and no ID.

[9] Mr. McEwan presented himself as a savvy businessperson who was financially stable. Over the course of several encounters with Mr. McEwan and Mika, M.M. came to believe that Mr. McEwan could help her obtain the trappings of financial security and a stable lifestyle.

[10] Mr. McEwan arranged for M.M. to rent a room in a basement apartment inside a house owned by his father. Mr. McEwan collected the rent from her, ostensibly on behalf of his father.

[11] With Mr. McEwan’s assistance, M.M. also obtained two ID documents, a passport and a birth certificate. Mr. McEwan maintained control over M.M.’s ID documents. When she needed her ID, he would give her one form of ID but never both. Mr. McEwan also helped M.M. open a bank account.

[12] M.M. gave the money she made providing sex services to customers at the spa to Mr. McEwan. She was told that the money would be used towards a down payment on a condo purchase. Her understanding was that she needed to invest $10,000 which would be matched by Mr. McEwan. They would then jointly purchase a condo in her name. The condo would be rented out on Airbnb and they would both share the profits. The plan was to “start small” and then undertake further investments.

[13] Through discussions with Mr. McEwan and Mika, M.M. decided to leave the Pure Pleasures Spa and move to the Vaughan Spa which promised wealthier clientele and therefore higher earnings. Mr. McEwan suggested that M.M. and Mika should work together at the same spa as it would be more convenient for him to drive them both to work at one location. M.M. agreed as she believed that the move to the Vaughan Spa made the best sense in terms of the goal of earning the $10,000 she needed in order to invest in the condo scheme.

[14] While the services provided at Vaughan Spa were similar to those at Pure Pleasures Spa, both Mika and Mr. McEwan suggested that M.M. provide oral sex without a condom, which would earn more money. Mr. McEwan also advised M.M. to use the name “Honey” as it better suited her. Unfortunately, the move to Vaughan Spa did not result in greater earnings.

[15] At a certain point, Mr. McEwan suggested that M.M. try working at a strip club. He suggested that it would be in her best interest and would help with their investment. As she was not comfortable stripping, she declined the suggestion.

[16] Mr. McEwan also helped M.M. apply for social assistance. The money would arrive at Mr. McEwan’s home. He would then take her to a cheque cashing outlet where she would cash the cheques and turn over the money to him.

[17] While she was working with Mr. McEwan, M.M. turned over most of the money she earned to him, though on occasion she paid for transportation, food and marijuana.

[18] M.M.’s stay in the basement apartment arranged by Mr. McEwan came to end following an altercation between Mr. McEwan and Mika. The altercation resulted in the police being called and M.M. was advised that she could no longer reside in the basement apartment. Mr. McEwan brought M.M. to the Pinecrest Motel in Vaughan. At this time, M.M. had no friends she could turn to. She had limited funds as she had turned all but a couple hundred dollars over to Mr. McEwan. M.M. lived at the Pinecrest Motel for 1½ to 2 months. She was responsible for paying for the room.

[19] During the stay at the Pinecrest, Mr. McEwan suggested that M.M. travel to London, Ontario, with a friend of his who “had a girl.” M.M. believed that she would be going to London to provide sexual services in a hotel room in order to make more money. The trip to London did not work out as planned. Eventually M.M. and the woman who was with Mr. McEwan’s friend were driven back to the Pinecrest Motel and dropped off. They had no way to rent a room. Mr. McEwan eventually attended at the Pinecrest Motel and paid for the room. However, as a result of a dispute between Mr. McEwan’s friend and the woman who was in London with M.M., police were called to the Pinecrest Motel.

[20] M.M. left the Pinecrest Motel. As she had no where to go, she slept in the spa for a few days. She then decided to end her relationship with Mr. McEwan as it was not working out. Matters came to a head when Mr. McEwan drove M.M. to a Cash Money outlet and told her that she owed him money for all the things he did for her. M.M. went in to cash a cheque, and when back in the parking lot she and Mr. McEwan engaged in a struggle over the envelope of cash. During the struggle, it appeared to M.M. that Mr. McEwan was possibly reaching for a gun she knew he carried. The incident came to end when M.M.’s friend pulled up in another car.

[21] M.M. lost all the money she gave Mr. McEwan. None of the money was invested in the promised real estate deal. While M.M. managed to get her passport back, it had been rendered non-viable. She never managed to get her other ID back from Mr. McEwan.

Victim Impact Statement

[22] M.M. provided a Victim Impact Statement that was presented by the Crown. In her statement, M.M. describes how the offences involving Mr. McEwan have affected her ability to trust people. She now assumes the worst and avoids people. She has become more reserved and less of a risk-taker.

[23] M.M. explains that she has suffered financial consequences as a result of the offences which occurred at a time in her life when she was trying to leave an abusive boyfriend. She lost her former more lucrative employment and had her plans for financial stability dashed.

[24] M.M. also explains that her mental health has suffered as she gets anxiety and panic attacks if she sees someone who looks like Mr. McEwan. She feels like she was used, lied to and taken advantage of. She also feels sad and regretful for becoming involved with Mr. McEwan.

The Background of the Offender

[25] Mr. McEwan is 34 years old. He was born in Canada to a father from Jamaica and a mother with Indigenous ancestry. He had a difficult childhood and was essentially raised by his father, who was often violent with him and with female partners. Mr. McEwan has no relationship with his mother. He remains close with his father and one of his three siblings.

[26] Mr. McEwan is married, though currently separated and going through a divorce. He has three children, ages 6, 11 and 12, with his wife. He also has at least two or three other children from other relationships. While his children all reside with their respective mothers, he has a good relationship with all of them.

[27] Mr. McEwan has a high school education, which he completed while living in the United States. While in school, Mr. McEwan excelled in basketball and was involved in various other extra-curricular activities.

[28] In terms of employment, Mr. McEwan has worked in various fields including retail, landscaping and construction. He has also worked as a music performer and a basketball coach/convener. At the time of his arrest on the charges before the court, he was working as a security guard at a hospital. While his bail conditions have made employment difficult, Mr. McEwan has plans to work in animal rescue and home electronics installation once this matter is complete.

[29] While Mr. McEwan uses marijuana and alcohol regularly, he has no addiction issues. He also has no reported mental health issues, though he has had some depression since these charges arose.

[30] In terms of his character, Mr. McEwan is described by family members as kind, intelligent, unselfish, creative and articulate. His family members are also of the view that the conduct captured by the offences is out of character for Mr. McEwan.

[31] Brianna McEwan, Mr. McEwan’s sister, notes that the case has had a significant impact on Mr. McEwan as it has caused him to miss out on many important family events. She describes how the charges, his time in custody and the conditions of his release have had an impact on his mental health. She notes that he is loved, missed and cherished by his family.

[32] Finlandia Cassellas, Mr. McEwan’s aunt, writes about the impacts that the process has had on Mr. McEwan’s ability to be with his children. She notes that Mr. McEwan has significant family support and that his family sees a very different side of him than that portrayed in the offences before the court.

[33] Chantelle McEwan, Mr. McEwan’s wife and the mother of three of his children, also describes the significant impact that his absence while incarcerated has had on the children. She also describes her and her children’s concern for his safety and well-being while incarcerated.

[34] Mr. McEwan has a prior criminal record. In 2014, he was convicted of three counts of fail to comply with a recognizance for which he received a 30-day sentence. In 2015, he received 15 days imprisonment following a conviction for being unlawfully at large. He also received an intermittent jail sentence for obstruct peace office and fail to comply with recognizance. Ministry records suggest that he successfully completed community supervision in 2016.

[35] In view of Mr. McEwan’s assertion of Indigenous heritage, a Gladue report was ordered by the court. By way of letter dated December 13, 2022, Aboriginal Legal Services (“ALS”) advised that they would be unable to prepare a Gladue report for Mr. McEwan for two reasons. First, they were unsure of the specific nature of his Indigenous ancestry. Second, they could not address how being an Indigenous person had affected his life.

[36] ALS reported that when they spoke with Mr. McEwan, he advised that his mother has Indigenous ancestry through his maternal grandfather who he believed was Metis or Inuit. Mr. McEwan indicated that he is estranged from his mother, though he remembered as a child travelling to a reserve “up north” with his mother where they bought smudge supplies, alcohol and cigarettes. Mr. McEwan could provide no further details of his experiences as an Indigenous person.

[37] The ALS report writer contacted Mr. McEwan’s mother, Carrie Ferri, and interviewed her. She advised that her maternal grandmother was Iroquois/Mohawk and that her maternal grandfather was Polish. Ms. Ferri could provide no other details regarding her grandmother’s Indigenous ancestry.

[38] Ms. Ferri contradicted Mr. McEwan’s recollection of visiting a reserve as a child. According to her, it never happened. She also denied that Mr. McEwan has any Indigenous involvement.

[39] ALS conducted various searches trying to locate Ms. Ferri’s maternal grandmother. While the searches produced some leads, the specific results did not indicate Indigenous ancestry.

[40] While ALS could not prepare a Gladue report, they noted that their letter should not be interpreted as stating that Mr. McEwan is not of Indigenous ancestry.

Mr. McEwan’s Evidence at the Sentencing Hearing

[41] Mr. McEwan provided affidavit evidence regarding the events following his arrest on these charges. He was also cross-examined on the affidavit.

[42] Mr. McEwan was initially arrested on February 23, 2020, and released on bail on February 25, 2020. The conditions of this initial release included a house arrest condition permitting him to be out of the house only in the presence of a surety.

[43] On June 24, 2020, the bail was varied to allow Mr. McEwan to go to work between the hours of 6:00 a.m. and 7:00 p.m. He otherwise remained on house arrest unless in the company of a surety.

[44] Between January 12, 2021 and November 22, 2021, Mr. McEwan was in custody at the Central East Correctional Centre. He was also in custody from October 31, 2022 to November 2, 2022 at Maplehurst Correctional Centre. Out of 315 days in custody, Mr. McEwan was subject to partial lockdowns on 21 days and full lockdowns on 126 days. The lockdown periods were very difficult. Contact with family was limited. Access to fresh air was limited to 20 minutes at most. Access to personal hygiene supplies and facilities was very limited. Mr. McEwan describes multi-day lockdowns as “torture.”

[45] Mr. McEwan also asserts that he was confined in the intake range for 28 days instead of the usual 14 days required by the quarantine protocol. He describes this time period as particularly brutal, with meals served in Styrofoam containers and limited use of shower facilities and telephones.

[46] As a result of a family court appearance, Mr. McEwan spent a second period of time, approximately 20 days, on an intake range. The conditions were similar to the first occasion.

[47] Mr. McEwan also suffered an injury to his finger while playing basketball while in custody. There was a delay in getting access to medical attention. Mr. McEwan asserts that by the time he saw a doctor, the injury had set and could not be fixed. He claims that he suffers constant pain as a result.

[48] On November 22, 2021, Mr. McEwan was again released on bail with an ankle bracelet. Initially he was paying for the ankle bracelet, but following his re-arrest on October 31, 2022 and further release on November 2, 2022, the ankle bracelet monitoring has been state funded.

[49] Mr. McEwan asserts that the time spent on house arrest has been very difficult. It has been a challenge to seek and maintain employment. He claims that he lost jobs as a result of his arrest and bail conditions, though in cross-examination he was confronted with his police statement wherein he explained that he was unemployed at the time of his arrest. Mr. McEwan sought to clarify the police statement and suggested that he had been working under two different contracts and was not unemployed at the time of his arrests.

[50] Mr. McEwan further maintains that he sought bail variations in order to take advantage of job opportunities but these requests were turned down by the Crown.

[51] Mr. McEwan also asserts that the bail conditions have made it difficult to see his children and participate in activities with them. He explains that he was unable to attend a family funeral as well.

The Position of the Parties

[52] The Crown seeks a sentence of 6 years imprisonment broken down as follows: 6 years on Human Trafficking (Count 1), 4 years concurrent on Material Benefit from Human Trafficking (Count 2), 1 year concurrent on Withholding Documents (Count 3) and 1 year concurrent on Fraud Under $5000 (Count 6).

[53] While the Crown initially took the position that prison sentences of 3 years concurrent on Material Benefits – Commodification of Sex (Count 4) and 2 years concurrent on Procuring – Commodification of Sex (Count 5) were warranted, the Crown ultimately agreed with the defence submission that those two counts should be conditionally stayed based on the Kienapple principle.

[54] The Crown also seeks the following ancillary orders: a. Section 743.21 order prohibiting communication with M.M. while in custody; b. DNA order; and, c. Forfeiture order of any items, including two cell phones and $691.75, seized at the time of the arrest.

[55] The defence argues that a sentence of 3 years in prison is appropriate based on the less coercive means used by Mr. McEwan in the commission of the offence and in view of his personal antecedents, including factors relating to systemic racism and Gladue issues. The defence also seeks the usual 1.5 to 1 Summers credit as well as additional credit for strict bail conditions and for the harsh conditions of pre-trial custody. In total, the defence argues that Mr. McEwan should receive the equivalent of 3 to 1 credit for time spent in custody and 6 months credit for strict bail conditions. The defence argues that Mr. McEwan has already served his sentence or has at least served the equivalent of 1,140 days towards whatever sentence the court ultimately imposes.

[56] The defence also opposes the forfeiture orders arguing that the Crown has not established any connection between the items seized and the commission of these or any other criminal offences.

The Motion for Directions

[57] Before turning to the principles of sentencing and the cases dealing with the range of sentence in human trafficking cases, I will provide my brief reasons dismissing the Crown’s motion for directions.

[58] In short, the Crown sought a declaration that certain decisions declaring the mandatory minimum sentence for the offence under s. 279.01 of the Code unconstitutional, were decided per incuriam, and that as a result the mandatory minimum sentence remains in effect, absent a successful constitutional challenge.

[59] After hearing submissions, I reserved my decision and on January 3, 2023, I issued a bottom-line ruling dismissing the application. In my emailed endorsement, I stated:

I am not prepared to find that R. v. Jean, 2020 ONSC 624 and the cases that it relies on (and those that follow it) were decided “per incuriam.” As such, the sentencing hearing will proceed on the basis the mandatory minimum sentence for an offence under s. 279.01(1)(b) has been declared invalid.

[60] The Crown argues that the decision in Jean was arrived at per incuriam for two reasons. First, it was based on the traditional sentencing caselaw for prostitution related offences which failed to recognize the higher moral culpability requirement captured by the intention to exploit element found in ss. 279.01 and 279.04 of the Code. Second, it relied on the decisions of R. v. Finestone, 2017 ONCJ 22, R. v. Purcell, 2019 ONSC 4683 and R. v. Ahmed, [2019] O.J. No. 4808 (Ont. S.C.J.), all of which were decided per incuriam, affected by later binding decisions and/or reached without full consideration.

[61] The decision in Jean is from the Superior Court of Justice. As such, the principle of horizontal stare decisis is engaged. I note that Jean has been followed in a number of subsequent cases, see R. v. Antoine, 2020 ONSC 181, R. v. McIntosh, 2022 ONSC 6437, R. v. Gordon, 2023 ONSC 1036, R. v. Augustin, 2022 ONSC 5901, and R. v. Gardner, 2020 ONSC 5954. In none of these cases did the Crown argue that Jean was decided per incuriam.

[62] In R. v. Sullivan, 2022 SCC 19, the Supreme Court of Canada recently summarized the principle of horizontal stare decisis as follows at paras. 73 and 75:

Horizontal stare decisis applies to decisions of the same level of court. The framework that guides the application of horizontal stare decisis for superior courts at first instance is found in Spruce Mills, described by Wilson J. as follows (at p. 592):

. . .I will only go against a judgment of another Judge of this Court if: (a) Subsequent decisions have affected the validity of the impugned judgment; (b) it is demonstrated that some binding authority in case law, or some relevant statute was not considered; (c) the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority.

The principle of judicial comity — that judges treat fellow judges’ decisions with courtesy and consideration — as well as the rule of law principles supporting stare decisis mean that prior decisions should be followed unless the Spruce Mills criteria are met. Correctly stated and applied, the Spruce Mills criteria strike the appropriate balance between the competing demands of certainty, correctness and the even-handed development of the law. Trial courts should only depart from binding decisions issued by a court of coordinate jurisdiction in three narrow circumstances:

1. The rationale of an earlier decision has been undermined by subsequent appellate decisions;
2. The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or
3. The earlier decision was not fully considered, e.g. taken in exigent circumstances.

[63] In providing this review of stare decisis, the Supreme Court expressly rejected the “plainly wrong” test that was frequently applied by courts. The Supreme Court held that “plainly wrong” is “a subjective term and suggests that a judge may depart from binding precedent if they disagree with it — mere personal disagreement between two judges is not a sufficient basis to depart from binding precedent.”

[64] The Crown’s argument on this issue is multi-layered. The Crown notes that in imposing sentences for sex trade related offences, the courts have for years used the sentence ranges and sentence factors discussed in R. v. Foster, 1984 ABCA 204, R. v. Tang, 1997 ABCA 174 and R. v. Miller, [1997] O.J. No. 3911. These cases all pre-date the current provisions and were decided under the former Code offence provisions which dealt with the offences of procuring and living on the avails of prostitution. These cases were also decided at a time when prostitution was itself legal.

[65] Next, the Crown notes that the current human trafficking offence created under s. 279.01 of the Code, which is not an offence restricted to the sex trade, has an additional mental element relating to the accused’s purpose which must be exploitative, as understood with reference to the definition of exploitation found in s. 279.04.

[66] The Crown notes that this additional mental element is not reflected in the caselaw, such as Foster, Tang and Miller, which forms the foundation of the sentencing ranges for the offences of human trafficking. Moreover, the Crown notes that the continued reliance on Foster, Tang and Miller has created a scenario wherein the sentences imposed have not adequately reflected the high moral culpability reflected in the additional mental element required in s. 279.01 and as defined in s. 279.04 of the Code.

[67] The Crown ultimately argues that any constitutional analysis that examines reasonable hypotheticals or actual case-specific facts through a lens of dated caselaw that by implication misapprehends the elements of the current Code offence is fatally flawed and ought not to be followed.

[68] In my view, the Crown’s argument for why I should decline to follow Jean is overly intricate and does not meet the Spruce Mills test as discussed in Sullivan. The Crown is asking me to find that the Jean decision was decided per incuriam by reaching behind that decision to find that three other decisions it relies on, namely Finestone, Purcell and Ahmed, were all respectively also found per incuriam. In doing so, the Crown advances a detailed critique of each decision and invites this court to find that the court, in each of these cases, missed the constituent elements of the offence of human trafficking by relying on dated caselaw.

[69] I am not prepared to do so. First, while I am not automatically and inevitably bound by horizontal stare decisis, my authority to not follow horizontally decided cases is understood to be rare, see Sullivan at para. 77. Here, the Crown is asking me to examine and undo a swath of caselaw, by deciding that the judges involved all decided the cases per incuriam because they misconstrued the elements of the offence under s. 279.01 of the Code by misapplying caselaw that was developed under the former Code provisions. In my view, this is an exercise the exceeds the bounds of the Spruce Mills test. It is more appropriately an appellate function to be exercised by the Court of Appeal.

[70] Second, I am not actually satisfied that the courts have failed to appreciate the exploitative purpose element for the offence of human trafficking under s. 279.01 of the Code when determining issues regarding the constitutionality of the mandatory minimum sentences. While I accept the argument that cases such as Foster, Miller and Tang were decided in a different era and under different Code provisions, mere reliance on those cases does not mean the court has misconstrued elements of the current offence. Those decisions still have value in deciding cases under the current provisions. Moreover, it is not clear to me that reliance on Foster, Miller and Tang has resulted in sufficiently skewed or inappropriate hypotheticals in all of the cited cases so as to undermine the outcome of the constitutional analysis in those cases.

[71] I also disagree with the Crown’s reliance on R. v. Plange, 2019 ONCA 646, to undermine reasonable hypotheticals raised by trial judges in instances where the parties were put on notice and were able to make submissions on the hypotheticals. It is unclear whether the concerns raised by the majority in Plange even arise in the hypotheticals impugned by the Crown.

Principles of Sentencing

[72] The objectives of sentencing long recognized at common law have been codified in s. 718 of the Code. They are: the protection of society and the maintenance of a just, peaceful and safe society through the denunciation of unlawful conduct; deterrence, both general and specific; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims or the community; and, promotion of a sense of responsibility in offenders and acknowledgement of the harm done.

[73] Section 718.1 provides that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances.

[74] In this case, Mr. McEwan is a Black man who also claims Indigenous ancestry. The impact of systemic racism is a factor to be considered in terms of its impact on Mr. McEwan and also in terms of the disproportionate impact that a jail sentence may have on him, see R. v. Morris, 2021 ONCA 680 at para. 123 and R. v. Hills, 2023 SCC 2 at para. 135.

[75] In terms of Mr. McEwan’s claimed Indigenous ancestry, I accept that a disconnection from Indigenous ancestry is one of the by-products of assimilationist policies adopted during historical colonial times, see R. v. Kehoe, 2023 BCCA 2 at para. 52. While I am very skeptical of Mr. McEwan’s purported recollection of a trip “up north” to a reserve to buy smudging supplies and cigarettes, I am nonetheless left with an individual who for some reason never managed to connect with his Indigenous ancestry. That said, there is no suggestion that his disconnection with Indigenous culture had anything to do with bringing him before the court. As such, while the Gladue factor is a factor be considered, it is not as prominent as it is in other cases.

The Range of Sentence for Cases of Human Trafficking

[76] There is no issue that in sentencing offenders for offences involving human trafficking, the paramount sentencing considerations are denunciation and deterrence, both general and specific. In R. v. Lopez, 2018 ONSC 4749, Justice Campbell provides a powerful recitation of the pernicious nature of offences involving human trafficking in the sex trade which explains why these sentencing principles are paramount. He explains as follows at para. 52:

For many years Canadian courts have decried the inherently exploitive, coercive and controlling actions of “pimps” in relation to [sex workers]. The unfortunate contemporary reality of the sex trade is that male pimps typically are involved in the exploitation, degradation, and subordination of women. At its most basic level, it is a form of slavery, with pimps living parasitically off the earnings of [sex workers]. Pimps exercise their control over [sex workers] by means of a variety of tactics including emotional blackmail, verbal abuse, threats of violence and/or pure physical violence and brutality. The [sex workers] that are the subject of this coercive exploitation are typically vulnerable and disadvantaged women, who have been manipulated and taken advantage of by the pimp. Even in cases where their initial participation in the sex trade is voluntary, including perhaps their business association with the pimp, and adopted for reasons of perceived increased security and safety in an inherently dangerous line of work, the relationship invariably becomes one-sided and exploitive. [Sex workers] are ultimately forced, in one way or another to provide sexual services for money in circumstances where they would not otherwise have agreed to such services and the money earned from those sexual services is collected by the pimp. Accordingly, in a very real and practical sense, pimps traffic in human resources of [sex workers], callously using their sexual services as an endlessly available commodity to be simply bought and sold in the market place. Accordingly, pimps have been aptly described as a “cruel, pernicious and exploitive evil” in contemporary society. [citations omitted]

[77] The offence of human trafficking under s. 279.01 of the Code criminalizes a wide range of intentional conduct that has as its purpose the exploitation of vulnerable persons, see R. v. A.A., 2015 ONCA 558,…at para. 88. The offence is not limited to human trafficking in the context of the sex trade, though it often arises in that context. The additional mental element of an exploitative purpose sets the offence apart from an offence under s. 286.3 of the Code, which targets the commodification of sexual activity and procuring. In the context of the sex trade, the offence under s. 279.01 is a more aggravated or serious offence than an offence under s. 286.3. An exploitative purpose, as understood by reference to the definition of exploitation found in s. 279.04, is a requisite element of the offence. This requisite mental element must be reflected in the sentence imposed for an offence under s. 279.01. By contrast, an offence under s. 286.3 can be committed without an exploitative purpose as a requisite element, though that purpose may nonetheless be present and, when present, may properly be considered as an aggravating factor on sentence. The same applies between offences under s. 279.02 and s. 286.2 which deal with receiving material benefits.

[78] In assessing the range of sentence for the offence of human trafficking, I have considered the following decisions, inter alia: R. v. McIntosh, R. v. Augustin and St. Armand, 2022 ONSC 5901, R. v. Gordon, R. v. Crosdale, 2019 ONCJ 3, R. v. Antoine, R. v. Strickland-Prescod, 2019 ONCJ 755, R. v. Lopez, R. v. R.R.S., 2016 ONSC 2939 varied at 2017 ONCA 141, R. v. A.E., 2018 ONSC 471, R. v. Finestone, and R. v. D.A., 2017 ONSC 3722.

[79] In assessing the range of sentence revealed by the caselaw, it is important to recognize that ranges are not fixed and inflexible, they change over time. It would appear that despite the absence of a mandatory minimum, the range has been moving upwards in recent years.

[80] In my view, the cases just referenced establish a range of four years to eight years, with a cluster of cases between five and six years. Cases at the lower end often involve the mitigation of a guilty plea and other significant mitigating factors. Cases at the higher end usually involve individuals with related criminal records and/or fact scenarios involving violence. Of course, there are also a few cases above and below this range. These outlier cases are marked by particularly unique factual circumstances.

Mr. McEwan’s Degree of Responsibility

[81] I turn next to assessing Mr. McEwan’s degree of moral responsibility or culpability. In doing so, I am mindful of the factors discussed in Tang and Miller which remain useful in undertaking this assessment.

[82] Through counsel, Mr. McEwan argues that his moral culpability is not at the high end for this type of offence. Counsel submits that Mr. McEwan was convicted on the basis that he exercised influence over M.M.’s movements, which is the least coercive form of human trafficking. Counsel notes that Mr. McEwan did not use explicit acts of violence to control M.M.

[83] I agree that this is not a case where violence was explicitly used to control, direct or influence the movements of the victim. However, I note that M.M. was aware that Mr. McEwan carried a gun with him in a satchel and believed he may have been reaching for it during their final encounter at the Cash Money outlet. The implicit message sent by Mr. McEwan’s possession of a handgun was that he was not above using violence if necessary. M.M. was also aware that Mr. McEwan had committed an act of violence against her co-worker, Mika.

[84] Even in the absence of explicit acts of violence, I am of the view that Mr. McEwan’s degree of moral culpability remains high. He preyed on M.M.’s extreme vulnerability. M.M. was very young, barely an adult. He falsely offered her the hope of a stable financial future by offering an “opportunity” to invest her earnings with him in a condo that would be rented out for profit. He took most of the money she earned, leaving her with virtually nothing. He maintained control over her identification. He moved her into an apartment in his father’s home. He drove her around and made suggestions for how she could earn more money. This included assisting her with obtaining social assistance. He took that money too.

[85] While the scheme was not overly sophisticated, it worked and lasted for approximately four months. It resulted in Mr. McEwan taking several thousand dollars from M.M.

[86] Mr. McEwan’s view, which I have entirely rejected, is that he was simply being altruistic. As he described it, he was basically a caring guy helping out a young person in need.

[87] He was not altruistic. He was selfish and predatory. His conduct was insidious.

[88] In my view, when Mr. McEwan’s conduct is viewed globally and in context, there is no issue that he demonstrated significant moral culpability.

Aggravating and Mitigating Factors

[89] In terms of aggravating factors, I note that the offences were motivated by greed. Mr. McEwan took most of the money M.M. earned in the sex trade. He also took her social assistance money. I also note that M.M. was an extremely vulnerable victim who has suffered significant and long-lasting impacts as a result of these offences. Mr. McEwan knew of and exploited her vulnerability by employing a scheme involving the false hope of a secure and stable future.

[90] In terms of mitigating factors, I note that Mr. McEwan had a difficult upbringing during which he witnessed domestic violence. Nonetheless, Mr. McEwan has a supportive family and friend group who view him positively. Mr. McEwan wants to be present for his children and help them as they mature into adulthood.

[91] While Mr. McEwan is not a first offender, his record is not for related offences.

[92] Mr. McEwan also has an ability to earn a living. He has held various jobs and has taken courses and training that will assist him in the future, should he choose that path. This suggests that he has some rehabilitative potential.

[93] Lastly, as I will discuss in a moment, I find that the conditions of pre-sentence custody and the time spent on restrictive bail conditions are further mitigating factors warranting consideration.

[94] As a matter of completeness in view of the submissions made by counsel, I decline to find that his age is mitigating in the circumstances of this case. While there are no hard and fast rules as to the maximum age for youthfulness, I do not view Mr. McEwan as a youthful offender as that phrase is contemplated in the caselaw, see R. v. Priest, 110 C.C.C. (3d) 289 (Ont.C.A.), R. v. Borde (2003), 63 O.R. (3d) 417 (C.A.), and R. v. Desir, 2021 ONCA 486.

Time Spent in Pre-Trial Custody and on Restrictive Bail Conditions

[95] Mr. McEwan initially spent 3 days in custody prior to being granted bail. He spent 314 days in custody following his re-arrest on January 13, 2021. He spent a further 3 days in custody following a further arrest on October 31, 2022. In total, he has spent 320 days in custody. In accordance with R. v. Summers, he is to receive credit of 1.5 to 1 for this time period which works out to 480 days (or approximately 16 months).

[96] Mr. McEwan also seeks a further 480 days credit in mitigation due to the custodial conditions under which he served his pre-sentence custody. Essentially, the defence submits that I should double the Summers credit given the horrible conditions Mr. McEwan endured while in custody.

[97] The Crown agrees that the conditions under which Mr. McEwan served his pre-sentence custody are mitigating, though it disagrees on the extent of the mitigation. The Crown submits that the mitigation of 2½ months is appropriate in the circumstances.

[98] In assessing how to measure the impact of the harsh custodial conditions and how to assess whether further mitigation is appropriate, I am guided by R. v. Duncan, 2016 ONCA 754 and R. v. Marshall, 2021 ONCA 344. I note that the impact of harsh custodial conditions is a mitigating factor on a sentence. It is not a linear or mathematical credit even though it may be expressed as a quantified figure. Ultimately, where the court considers harsh custodial conditions as a mitigating factor, the degree of mitigation applied must not result in the imposition of an unfit sentence.

[99] I am also guided by cases such as R. v. Persad, 2020 ONSC 188, which highlight the fact that there is a communicative aspect to granting mitigation for harsh custodial conditions. The courts have repeatedly raised concerns about the treatment of persons in custody. Those concerns appear to remain live despite the repeated messages, see R. v. Perry, 2020 ONSC 8173, R. v. Johnson, 2017 ONSC 3512, R. v. Charles, 2021 ONSC 5907, R. v. M.W., 2020 ONSC 3513, and R. v. Lewis, 2022 ONSC 1260.

[100] In this case, Mr. McEwan was on lockdown for 147 days out of the 315 days he spent in custody at the Central East Correctional Centre. On 93 of those days, the lockdowns were the result of staffing shortages. He was also subject to multi-day lockdowns, including a 25-day lockdown for a COVID outbreak.

[101] I accept that the impact of the lockdowns on inmates awaiting trial is unduly harsh with conditions at times bordering on inhumane. While some institutional lockdowns are an expected part of running a secure facility, where the lockdown ratio is reaching 50% and where more than 50% percent of the lockdowns are related to staffing issues, there is a problem.

[102] I also accept that the general conditions in the custodial facilities were made all the more difficult given the widespread nature of the COVID pandemic. While pandemic-related lockdowns may well have been justified during the acute phases of the pandemic, they would have nonetheless visited an additional psychological toll on those held in custody.

[103] When I consider the evidence before me and the nature of and reasons for the harsh pre-sentence custody conditions, I am satisfied that mitigation is warranted though not to the extent suggested by the defence. In my view, the mitigating effect should be 180 days (or 6 months).

[104] In terms of time spent on restrictive bail conditions, in R. v. Downes, 205 C.C.C. (3d) 488 (Ont.C.A.), the Court of Appeal recognized that time spent under restrictive bail conditions must be considered in fashioning an appropriate sentence. A credit for any such time is not automatic and later caselaw such as R. v. Ijam, 2007 ONCA 597, recognizes the reality that bail is not jail. That said, in cases where a person suffers a significant restriction of liberty due to onerous bail conditions, some credit is appropriate. Again, the courts have been clear that there is no rigid or mathematical formula fixed for making this determination.

[105] Mr. McEwan has been on house arrest bail for 631 days (as of today’s date). He was on a house arrest bail with a work exception for a further 165 days, for a total period on bail of 796 days. Out of that total period of time on bail, he has spent approximately 513 days on bail with an ankle monitor. The defence argues that he should be given credit for 6 months for the time spent on restrictive bail conditions. The Crown opposes this request.

[106] In considering whether a Downes credit is appropriate, I must consider the specific impact that the restrictive bail conditions had on Mr. McEwan. I reject his evidence that his bail conditions caused him to lose his employment when he was initially charged. I find that his evidence on this point was contradicted by the version of events he told police following his arrest. I also find his attempt to explain that apparent inconsistency evasive.

[107] I am also not persuaded that he lost out on other job opportunities when the Crown refused to vary his bail to allow him to work. I find his evidence on this point untrustworthy. I also reject his explanation for why he missed a family funeral. Initially he explained that he could not attend because his family had to work and his aunt, who was his surety, was out of the country attending “a funeral.” He then quickly changed his answer to “a wedding.” This evidence left the impression that Mr. McEwan was simply making up his answers as he went along.

[108] When I consider his evidence on whether the bail conditions impacted his interactions with his children, I note that the bail conditions did permit him to be out of the house in the company of a surety. As well, the bail conditions permitted his children to stay with him inside his residence. In short, I am not satisfied that this is an instance where the bail conditions had a significant impact vis-à-vis his interactions with his children.

[109] Lastly, I reject the implicit suggestion in Mr. McEwan’s evidence that the Crown unreasonably refused consent variations easing the burden of the bail conditions. The propriety of the bail conditions is not the focus of the exercise, see R. v. Joseph, 2020 ONCA 733 at para. 114. In any event, Mr. McEwan would be hard-pressed to complain about his bail conditions. I note that on two occasions, he was re-incarcerated in relation to new charges. The first set of charges, which included allegations of failing to comply bail, proceeded to trial and Mr. McEwan was acquitted. He was then re-admitted to bail on consent and again re-arrested when charged with further offences of failing to comply with bail. Mr. McEwan secured bail again and those charges remain outstanding. In addition, it appears that he was also charged with offences against a former surety, which also remain outstanding, though on which he was not incarcerated.

[110] While in both instances of re-incarceration Mr. McEwan was re-admitted to bail, it is not surprising that his bail conditions remained onerous despite the passage of time. The additional charges would likely not have made it easier for Mr. McEwan to loosen his bail conditions on the charges before the court.

[111] Despite the frailties with Mr. McEwan’s evidence on the impact of his bail conditions, and despite the fact that bail conditions appear to have been well warranted as opposed to purely punitive, I nonetheless accept that some credit is appropriate. Mr. McEwan was under house arrest for a lengthy period of time. The house arrest had very limited exceptions and included a period of time with electronic monitoring. That said, I note that some of his restriction of liberty would have occurred during the global COVID pandemic and that this results in a slight degree of moderation in terms of the impact of the bail conditions, given that during portions of the time under bail, Mr. McEwan would have been subject to varying degrees of public health-related lockdowns.

[112] The determination of an appropriate degree of mitigation for restrictive bail conditions is discretionary. There is no fixed mathematical formula and the “credit” to be applied may simply be reflected as a mitigating factor on sentence rather than a fixed credit, see R. v. Joseph at para. 108 and R. v. C.C., 2021 ONCA 600 at paras. 4-5.

[113] Ultimately, I am satisfied that a credit of 90 days (or 3 months) is appropriate.

The Appropriate Sentence

[114] When I consider all the applicable sentencing principles, I come to the conclusion that a sentence of 5 years incarceration (1,825 days) is warranted in the circumstances of this case. In my view, this is a sentence that adequately reflects Mr. McEwan’s degree of moral responsibility while also considering his personal antecedents, cultural background and prospects for rehabilitation.

[115] I would impose this sentence as follows: a. Count 1 – 5 years in prison; b. Count 2 – 30 months concurrent to count 1; c. Count 3 – 12 months concurrent to count 1; d. Count 4 – conditional stay; e. Count 5 – conditional stay; and, f. Count 6 – 12 months concurrent to count 1.

[116] From the 5-year sentence on count 1, I deduct 480 days for pre-trial custody and a further 180 days as mitigation for the harsh conditions of pre-trial custody. I also deduct 90 days for time spent on restrictive bail conditions. This equates to credit of 750 days, which leaves an effective sentence of 1,075 days from today’s date. As a result, the effective sentence on count 1 will be 2 years, 11 months and 15 days, with the sentences on the remaining counts to be served concurrently.

[117] I also impose the following ancillary orders: a. A non-communication order under s.743.21 of the Code prohibiting any communication with M.M. while in custody; and b. A DNA order as a primary designated offence.

[118] I decline to order forfeiture of the items seized incident to Mr. McEwan’s arrest, which occurred well after the offences had ended. The evidence does not establish a basis for ordering the money and the cell phones seized forfeited.

[119] In view of Mr. McEwan’s financial circumstances and family support obligations, I waive the victim surcharge.

Justice J. Di Luca

Release Date: March 8, 2023

NOTE: As noted in court, on the record, this decision in writing is to be considered the official version of the Reasons for Sentence and takes precedence over the oral Reasons read into the record.

ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – TYRONE MCEWAN Defendant REASONS FOR SENTENCE The Honourable Justice J. Di Luca Released: March 8, 2023