Court File and Parties
COURT FILE NO.: CR: 22-493 DATE: 2023-06-08
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING S. Orlando for the Crown Attorney
- and -
PITCHOU KANYANGA M. Salih, on behalf of the offender
HEARD: April 17 and May 8, 2023
Reasons for Sentence
1On April 17, 2023, the offender, Pitchou Kanyanga (“Kanyanga”), pleaded guilty to three counts including, procuring L.M. to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under s. 286.1(1), did recruit, hold, conceal or harbour L.M., who offers or provides sexual services for consideration, or exercised control, direction or influence over her movements, and did receive a financial or other material benefit, knowing that it was obtained by or derived directly or indirectly from the commission of an offence under s. 286.1(1), and did knowingly advertise an offer to provide sexual services for consideration, all contrary to their respective provisions in the Criminal Code of Canada, R.S.C. 1985, c. C-46.
2An Agreed Statement of Facts was filed. Kanyanga was convicted on the counts on which pleas were entered.
3Ms. Orlando, for the Crown, seeks a jail sentence of five years, less pre-sentence custody, along with various ancillary orders. The Crown submits that the facts of this case and the supporting jurisprudence warrant a substantial penitentiary sentence to reflect the principles of denunciation and deterrence.
4Ms. Salih, on behalf of her client, requests a global sentence of three years, less pre-sentence custody with enhanced credit. She submits that given that there are numerous mitigating factors and other credits, the remaining sentence is a time-served disposition. There is no issue respecting the ancillary orders requested by the Crown.
Circumstances of the Offence
5The circumstances of the convictions at trial are outlined in the Agreed Statement of Facts filed by the Crown. Briefly, the salient facts include:
On Wednesday April 21st, 2021, the Hamilton Police Vice & Human Trafficking Unit initiated a vice probe at the Haven Inn, located at 1870 Main Street West in the city of Hamilton.
At 10:19 a.m., D/C Park posing as a customer, responded to the advertisement via text message to the phone number listed on the Leolist ad (250-975-2151). Rates for sexual services were offered at $120 per half hour, $220 per half hour out call and $300 per hour out call. An arrangement was made for D/C Park to receive a half hour of sexual services at the Haven Inn that same morning at 11:15 a.m. at 1870 Main Street West, Hamilton.
Upon arrival at approximately 11:07 a.m, investigators noticed that an unknown male was parked in the motel parking lot, backed in, watching the vicinity of room #5 and #6.
At 11:15 a.m. D.C Park was in the parking lot of the Haven Inn and again texted the phone # 250-975-2151 to obtain the room number. The responder directed him to room #5. D/C Park knocked on the room #5, which was answered by a female, wearing light pajamas and a grey sweater. The female was later positively identified as L.M.
Investigators spoke with twenty-one year old L.M., who was cooperative but apprehensive about sharing details about the sexual services she was providing to customers. She told the police during the vice probe that she was a sex worker, and had been working as such for a long time. Initially, she told police she was not being pimped.
She only knew Succi for a short period of time and she did not know his real name. Succi would drive her to places in his silver Chrysler 300 where she would provide sexual services to customers. Succi made the arrangements with customers who wanted to purchase her sexual services. The money she paid by customers was split between her and Succi.
At the same time as D.C Park knocked on the door to room #5, other officers took steps to identify the male who appeared to be watching room #5 from the drivers’ seat of the Chrysler 300. As investigators arrived at the driver’s seat, the unknown male opened his door and investigators identified themselves as the police. The unknown male provided a Quebec driver’s license in the name of Pitchou Kanyanga with a date of October 13, 2000.
Mr. Kanyanga had a key to room #5.
At this time, police formed reasonable grounds to believe that Kanyanga was in contravention of the Cannabis Act and that the identification he provided was false. As police continued the search, they looked in the center console and found the following: An Ontario driver’s license with Kanyanga’s photo, but in the name of Larry Robbins (1997/10/03). A Government of Canada Social Insurance Number 130 039 415 in the name of Larry Robbins. An Ontario driver’s license with Kanyanga’s photo, but in the name of Nelly Mellott (1982/06/22). An Ontario Health Card with Kanyanga’s photo, but in the name of Nelly Mellott (1982/06/22). An Alberta driver’s license with Kanyanga’s photo, but in the name of Clarence Gard (1990/10/14). A Government of Canada Social Insurance Number 637 659 137 in the name of Clarence Gard. A Quebec driver’s license with Kanyanga’s photo, but in the name of Keith Paul (2000/06/21). A Quebec’s driver’s license with Kanyanga’s photo, in his proper name and date
Police noticed that identical photos of Kanyanga were used on counterfeit identification #1, #3, #4, #5, #6 and the identification in the name of Adam Bisby located in his wallet. Police queried counterfeit identification #1, #3, #5 and #7 found that the driver’s license numbers on them were not associated to a driver’s license in their associate provinces. Also in the car, on the front passenger seat, were two cell phones, which were seized by the police.
By way of background, L.M. moved to Toronto in and around February of 2021. Elizabeth messaged her on Snapchat and they got back in touch about escorting. Elizabeth gave L.M. Succi’s snapchat, and she connected with him through this app.
In April of 2021, Elizabeth texted L.M. asking if she wanted to “work”, and she agreed. She then invited Elizabeth to “come down”. Elizabeth came down and they started working together at the Monte Carlo hotel. Initially, they were just working with each other and making money, but then Elizabeth introduced her to Succi. Elizabeth told her that Succi would take care of her. After L.M. met Succi, they started what she was told was a “partnership” together but she believes it was not a true partnership.
L.M. was providing sexual services out of the Monte Carlo Inn for a few days for money, then went home, and then Succi picked her up and brought her to the Haven Inn in Hamilton, arriving on April 21st at 2 a.m. Succi rented the room. He provided her with transportation to outcalls – although she also had other friends who could drive her.
L.M. wasn’t sure who posted her ads at the Monte Carlo – whether it was Succi, Elizabeth or his friends – but she did make clear that she did not post any ads. Furthermore, she had no control over the ads which advertised her sexual services, nor did she control any of the arrangements for the work.
L.M. did not run the phone, Succi and Elizabeth did and were doing the communications with the clients. There were times when L.M. encountered problems with clients because the client wanted a particular sexual service that she had made clear to Succi and Elizabeth that she did not provide. During one outcall at a client’s apartment, the client told her he wanted anal sex, but she did not provide that service to customers, so she told the client that she did not do anal. She had to make an excuse to leave.
Whenever she saw a client, she gave Succi money afterwards, which was their arrangement. In total, she believes she had given him approximately $200, mostly in cash. This was over a 7 day period.
L.M. was asked repeatedly if she felt she could stop at any time, and she confirmed she could.
L.M. saw videos on Succi’s phone of him handling firearms. Police also examined the two cell phones (a black iPhone and a white and silver iPhone) that were on the front passenger seat of the Chrysler 300. There were three videos of the accused handling firearms.
In one of the devices, associated to the accused, in the Notes section of the phone there was a list of dates and amounts of money associated to the name “Liya”, which in total was $2090. In total, L.M. saw 13 clients over 7 days.
Chat communications were found on the iPhone being used by Kanyanga between April 14 and April 21, 2021 with prospective customers who were inquiring about rates and sexual services. It is clear in the text messages between Kanyanga’s and L.M. that he is posting at least some of the ads for her sexual services. Based on the totality of circumstances, Kanyanga was the person who L.M. knew as “Succi”. The offender has been in custody since his arrest on April 21st, 2021.
Circumstances of the Offender
6Counsel provided information regarding her client. There were several letters filed. I have also received information from the various institutions where Kanyanga was housed.
7Kanyanga also provided character references from long-time personal and family friends, which I have briefly summarized: Angela Escamilla Canales, his partner, wrote a support letter for Kanyanga, “whom I have known for 5 years. Pitchou has always been kind, sensitive, generous, and a loving man. He would do anything for the people in his life. He realizes that he has made a big mistake and that big mistake led him to lose two years of him being there for his children. He doesn’t want his kids to grow up without a father like he did. He wants them to have a better life than his. I believe that he truly wants to move forward in his life. He talks of his plans to go back to school and to take steps to become a carpenter so that he could eventually flip houses and make an honest living to support me and his children. I had a very difficult time being out here without him.”
8Damando Nzele is Kanyanga’s mother. She wrote: “We came to Canada as refugees and went through a lot of difficulties as we tried to settle in Montreal. I am proud of him, and we (his family) want him to return home and start a new chapter of his life with fond memories. I will be there to support him and to help him. I hope that you will allow him to return to us soon.”
9Serge Ngoko-Mouyabi is Kanyanga’s ex-stepfather. He wrote: “I have known Pitchou Kanyanga since he was eight years old. He cares more about others than himself. He has had his share of misfortunes but remains unequivocally a compassionate and empathetic human being. Fatherhood has brought Pitchou back to life.”
10Bossing Elenge wrote: “Following the request to discuss with my nephew Pitchou Kanyanga. His positive characteristics: courage, humor, kindness, leadership, curiosity, open-mindedness, love. What are his plans for the future: In addition to carpentry training, I want to take real estate agent training to buy, renovate and sell buildings in order to take care of my family.”
11Doralice Mfoulou is a friend of Kanyanga’s mother. She penned: “As a young man, he continued to treat me with respect. Today, he is a caring father and partner. He continues to show love and affection for his family, inquiring them regularly. He never forgets his mother’s birthday or the birthday of his siblings. Pitchou had a difficult childhood. However, I have noticed that he has matured a lot growing up, especially while being incarcerated and away from his children. I know his family will be there to support him, but I wish you to know that I shall be there to provide Pitchou with personal and emotional support and ensure he stays on the right path.”
12Lisa Franck wrote: “I have always known Pitchou to be a respectful, kind, and considerate person. Even during the most challenging times in his life, he always maintained a positive attitude and demonstrated a remarkable level of resilience, Pitchou is an intelligent individual who has always shown a willingness to learn and improve himself. He is a quick learner and has always show a strong worth ethic since a young age.”
13Trilock Sookraj, a close friend of Kanyanga, wrote: “I am 24 years old and working full-time in Montreal. Mr. Kanyanga and I have been close friends for over 10 years. During his sentence, Mr. Kanyanga had time to reflect on his lack of judgment. He deeply regrets his actions. I wish to see my friend reunited with his family. Mr. Kanyanga plans to apply for a full-time job and provide for his family. He wants to make up for the years he missed by their side. He wishes to redeem himself to his children: Delany and Deion.”
The Jurisprudence Generally
14I have been provided with numerous cases from both counsel on the issue of the appropriate sentence to be imposed. While the law is clear that each case is fact-specific, the cited jurisprudence, to the extent that it is similar to the case at bar, assists me in determining an appropriate sentencing range. As some of the cases relied upon by counsel are distinguishable on their facts or on the circumstances of the particular offender, my intention is to briefly set out those cases that are somewhat similar to the issues in the case at bar.
15In R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, the Supreme Court of Canada affirmed that proportionality is the organizing principle in sentencing, and parity and individualization, while important, are secondary principles which inform the proportionality assessment: Parranto, at paras. 9-12. Thus, the majority held, “[a]ll sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: Parranto, at para. 10, citing the seminal case of R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 30.
16In determining the appropriate sentence, judges are required to balance a multiplicity of factors having regard to the objectives and principles defined in Part XXIII of the Criminal Code. This exercise is discretionary and is “[m]ore of an art than a science”: Parranto, at para. 9.
General Principles
17The court is guided by the principles of sentencing as set out in the Controlled Drug and Substances Act, S.C. 1996, c. 19 (“CDSA”) and ss. 718 to 718.2 of the Criminal Code. As directed by s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing sanctions that reflect enumerated objectives. Those objectives include denunciation of the unlawful conduct, deterrence, and rehabilitation. It is also important to impose a sentence that promotes a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community.
18Section 718.2 of the Criminal Code addresses the principles of totality, parity, and the principle of restraint, among other factors. Section 718.2 also addresses specific aggravating and mitigating factors that shall considered based on certain enumerated principles. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The circumstances of the offence and of the offender must be analyzed to identify the aggravating and mitigating factors.
19The primary objectives in cases of this nature are general deterrence and denunciation: R. v. B.M., 2023 ONCA 224, at para. 21, R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161, at paras. 25-28. General deterrence is an established sentencing objective premised on the idea that the sentence imposed on an offender will discourage people who may otherwise consider committing a similar offence: R. v. Bissonnette, 2022 SCC 23, 469 D.L.R. (4th) 387, at para. 47; R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941, at para. 2; Denunciation requires that a sentence communicate society’s condemnation of the conduct: Bissonnette, at para. 46.
Aggravating Factors
20The aggravating factors in this case include some elements of preparation and sophistication. The offender took advantage of the complainant for his own economic interests.
21The offender has a lengthy criminal record, including convictions as both a youth and an adult. Kanyanga’s youth record includes: August 8, 2018 in Montreal, Attempt Theft under $5,000 and sentenced to one year probation. On August 21, 2018, in Montreal, Trafficking in Schedule II substance and sentenced to one year probation. On November 9, 2018, in Montreal, Fail to Comply Release Order and sentenced to one day (credit for three days pre-sentence custody (“PSC”)). Also, on November 20, 2018, in Thetford Mines, Quebec, Break and Enter and Commit and sentenced to one year probation and a firearms prohibition. Also, in Montreal, Possession of Schedule II substance and sentenced to one year probation.
22Kanyanga’s adult criminal record includes: September 11, 2019, in Montreal, for Failure to comply with Probation Order, sentenced to 15 days. Also, Possession of Schedule 1 substance for the purpose of trafficking, sentenced to seven days and one year probation (credit for equivalent of 173 days of PSC). Finally, on July 16, 2019, in Hamilton, he was convicted of Distribution of Intimate Images without consent and Possession of Child Pornography, for which the sentence is unknown.
23The other aggravating features of this case include the possession of the firearm and the numerous pieces of false identification, giving rise to other counterfeit mark counts. While the firearm was neither physically present nor employed, it could be inferred as a form of intimidation from the images on the iPhone.
Mitigating Factors
24The offender pleaded guilty to the three counts. A guilty plea is a significant mitigating factor. It demonstrates remorse and acceptance of responsibility for the conduct and the harm done to the complainant and the community.
25In his comments to the court, Kanyanga expressed some degree of regret and remorse. He presented favourable character references. While incarcerated and awaiting disposition, he has completed several programs or sessions.
26Kanyanga has had a difficult upbringing, his family fleeing the Congo as refugees. He never met his father, who was incarcerated in their native country. His mother had to raise five children in a new country. He resided in a “rough” area of Montreal. Kanyanga had to work to sustain his family. He has the backing and support of his partner and family, who were in attendance at these proceedings. There is a solid plan for employment upon his release.
27The relationship between Kanyanga and L.M. was not of a long duration. I note that the complainant chose not to file a Victim Impact Statement.
Analysis
28Ms. Orlando points out that Parliament addressed the concerns of procuring and other related offences by virtue of Bill C-36, An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts.1 The Supreme Court of Canada gave Parliament one year to respond to its findings in Bedford.2
29Bill C-36 reflects a significant paradigm shift away from the treatment of prostitution as a “nuisance”, as found by the Supreme Court of Canada in Bedford, toward treatment of prostitution as a form of sexual exploitation that disproportionately and negatively impacts women and girls. Bill C-36 signals this transformational shift both through its statement of purpose, as reflected in its preamble, and its placement of most prostitution offences in Part VIII of the Criminal Code, Offences Against the Person. Bill C-36’s objectives are based on the following conclusions drawn from the research that informed its development:
The majority of those who sell their own sexual services are women and girls. Marginalized groups, such as Aboriginal women and girls, are disproportionately represented.
Entry into prostitution and remaining in it are both influenced by a variety of socio-economic factors, such as poverty, youth, lack of education, child sexual abuse and other forms of child abuse, and drug addiction.
Prostitution is an extremely dangerous activity that poses a risk of violence and psychological harm to those subjected to it, regardless of the venue or legal framework which it takes place, both from purchasers of sexual services and from third parties.
Prostitution reinforced gender inequalities in society at large by normalizing the treatment of primarily women’s bodies as commodities to be bought and sold. In this regard, prostitution harms everyone in society by sending the message that sexual acts can be bought by those with money and power. Prostitution allows men, who are primarily the purchasers of sexual services, paid access to female bodies, thereby demeaning and degrading the human dignity of all women and girls by entrenching a clearly gender practice in Canadian society.
Prostitution also negatively impacts the communities in which it takes place through a number of factors, including: related criminality, such as human trafficking and drug-related crime; exposure of children to the sale of sex as a commodity and the risk of being drawn into a life of exploitation; harassment of residential noise; impeding traffic; unsanitary acts including leaving behind dangerous refuse such as used condoms or drug paraphernalia; and, unwelcome solicitation of children by purchasers.
The purchase of sexual services creates the demand for prostitution, which maintains and furthers pre-existing power imbalances, and ensures that vulnerable persons remain subjected to it.
Third parties promote and capitalize on this demand by facilitation the prostitution of others for their own gain. Such persons may initially pose as benevolent helpers, providers of assistance and protection to those who “work” for them. But the development of economic interests in the prostitution of others creates an incentive for exploitative conduct to maximize profits. Commercial enterprises in which prostitution takes place also raise these concerns and create opportunities for human trafficking for sexual exploitation to flourish.
30Accordingly, Bill C-36 sought to denounce and prohibit the demand for prostitution and to continue to denounce and prohibit the exploitation of the prostitution of others by third parties, the development of economic interests in the exploitation of the prostitution of others, and the institutionalization of prostitution through commercial enterprises, such as strip clubs, massage parlors, and escort agencies in which prostitution takes place. It also sought to encourage those who sell their own sexual services to report incidents of violence and to leave prostitution.
31Bill C-36 modernized the procuring offences in s. 212(1), which used antiquated language and created significant overlap between offences by criminalizing similar conduct in different ways. Bill C-36 animates its denunciatory and prohibitory objectives by comprehensively prohibiting all conduct related to procuring others for the purpose of prostitution.
32Specifically, the procuring offence criminalizes procuring a person to offer or provide sexual services for consideration or recruiting, holding, concealing, or harboring a person who offers or provides sexual services for consideration, or exercising control, direction, or influence over the movements of that person.
33The term “procure” has been interpreted by the Supreme Court of Canada as meaning “to cause, induce or have persuasive effect”, which necessarily entails active involvement in prostitution of another on the part of the accused. The offence can be proven if the accused recruited, held, concealed, or harbored a person for the purposes of prostitution or exercised control, direction, or influence over the movements of a person for that purpose. This approach builds on existing jurisprudence.
34The new procuring offence requires active involvement in the provision of another person’s sexual services; whereas, passive involvement is sufficient to establish the material benefit offence. For example, a “classic pimp” is likely to be caught by both the procuring offence and the material benefit offence, because pimps generally induce or cause others to offer or provide their sexual services and they economically benefit from that activity. In contrast, a person who derives a benefit from the prostitution of others, without actively inciting the provision of sexual services, such as a “bouncer”, who works at a strip club and knows that prostitution takes place there, is only caught by the material benefit offence.
35The Crown submits that the objectives of the legislation and that this distinction justifies the imposition of higher penalties. Ms. Orlando referred to several cases, including R. v. Lopez, 2018 ONSC 4749, wherein K. Campbell J. stated, at paras. 52 and 53:
For many years Canadian courts have decried the inherently exploitive, coercive and controlling actions of “pimps” in relation to prostitutes. 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 prostitutes. Pimps exercise their control over prostitutes by means of a variety of tactics including emotional blackmail, verbal abuse, threats of violence and/or pure physical violence and brutality. The prostitutes 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. Prostitutes 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 the human resources of prostitutes, 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].
In terms of the range of sentences that are appropriate for pimping offences, some courts have generally accepted that where the accused has coerced a woman into becoming or remaining a prostitute and exercised a significant degree of control over her activities, sentences of four or five years are typically imposed. General deterrence, denunciation and specific deterrence are said to be the paramount sentencing consideration. The imposition of any specific sentence depends, of course, upon the individual circumstances of each case, and consideration of a variety of factors including: (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 of the prostitutes…
36This general approach to the sentencing of pimps in their exploitation of prostitutes has been continually applied under the “human trafficking” provisions of the Criminal Code. See: Lopez, at para. 54; R. v. R.R.S., 2016 ONSC 2939, at paras. 21-41, varied in 2017 ONCA 141; R. v. D.A., 2017 ONSC 3722, at paras. 15-18, 30-32.
37I agree with the Crown that, following the Supreme Court of Canada’s decision in Bedford, and with the enactment of Bill C-36, the intention was to invoke a “significant paradigm shift” in criminal law policy regarding prostitution-related offences, from treating prostitution as a type of “nuisance,” toward treating “prostitution as a form of sexual exploitation that disproportionately and negatively impacts on women and girls.”
38In R. v. Mascoe, 2020 ONCA 706, at para. 7, the Court of Appeal stated:
As for the submission that Mr. Mascoe did not exercise control over the complainant, we see no basis on which to interfere with the trial judge’s findings to the contrary. It is correct that, on the complainant’s testimony, Mr. Mascoe did not use violence against her. However, he did exercise control for the purpose of facilitating her prostitution. Mr. Mascoe drove the complainant to retrieve clothing, to the mall to purchase items, and to the first hotel to begin work. He monitored her exchanges with clients. The complainant turned over all the money she earned to Mr. Moscoe. On at least one occasion, he told her she could not take a break. He berated her for not working as hard as she should be. He also controlled her ability to see her family and would not allow her to visit them without him.
39On his sentence appeal, Mr. Mascoe argued that five years’ incarceration is outside the range because there was no violence or intimidation involved. He also argued that he should have been given greater credit for pre-trial custody because of the harsh conditions at Central East Detention Centre. The Court of Appeal determined that there was no error in the sentence imposed. Mr. Mascoe had a lengthy criminal record including two prior convictions for sex trade offences and was on probation for a similar offence at the time of his arrest on these charges. The evidence showed that Mr. Mascoe had no interest in rehabilitation as this work was his “livelihood”.
40In R. v. Wallace, 2009 ABCA 300, the appellant argued that the sentence violated the parity principle because the sentence exceeded the usual range. The appellant relied on R v. Foster (1984), 1984 ABCA 204, 54 A.R. 372, which approved the following statement in Thomas, Principles of Sentencing, (2nd ed., 1979), pp. 130‑2:
Sentences within the bracket of four to five years are usually approved where the offender has coerced the woman concerned into becoming or remaining a prostitute, and has exercised a significant degree of control over her activities.
41In Wallace, the offender coerced and manipulated the victim into entering a life of prostitution. The court determined that there was no violence or duress in that case, but that he was in an intimate relationship with the victim. The sentence was upheld on appeal.
42While not condoning the misconduct, Ms. Salih disputes the applicability of the Crown’s cases. She points out that, unlike many other cases, the offence was of limited duration, there was no grooming, violence, threats, coercion, and that the victim confirmed that she never felt threated and that she could stop whenever she wanted.
43In addressing some of the cases provided by the defence, in R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, the offender was convicted by a jury of material benefit of a person under 18; making and possessing child pornography; advertising the sexual services of two complainants; and procuring. Mr. Joseph procured two women into sex work, introducing them to the business. He took sexualized photos of them and advertised them; Mr. Joseph also took sexualized photos of a third woman. Mr. Joseph booked clients, set the prices, and instructed the women on how to conduct themselves. On all but one occasion, Mr. Joseph took the money they had earned. The offence took place over the course of approximately one week, and only ended when the women decided to stop working for him. Mr. Joseph had sex with one of the women several times during this period.
44The aggravating features of the offences included that Mr. Joseph made a considered decision to sell sexual services of two young persons for his own profit. He knew one complainant was young and in need of money. He failed to take reasonable steps to determine the age of the second complainant and the offences involved the exploitation of a child. The offender made child pornography for profit; though he did not intend to create child pornography, he negligently did so. Mr. Joseph had several mitigating factors, which included depression, youthfulness, the fact that he was a first offender, remorse, and stringent bail terms. He was sentenced to 15 months’ incarceration concurrent on all counts and 18 months’ probation.
45In R. v. Dubois, 2019 QCCQ 1206, a case similar to the one at bar, the offender pleaded guilty plea to material benefit, advertising, and procuring. The complainant met the accused on Facebook. Her profile indicated that she was looking for a job. He suggested prostitution, and she accepted. She had never done this work before. She worked for the accused for nine days full-time. The Victim Impact Statement demonstrated trauma. The Pre-sentence Report was not positive. Mr. Dubois had a good upbringing but stopped school at age 16. He socialized with negative peers and engaged in heavy cannabis use. There was limited insight into the offence, but he expressed remorse.
46Unlike this case, the aggravating factors included the planning of the offence and initiation of the victim into prostitution. There was serious damage to the psychological integrity of the victim, who was 17 years old and vulnerable. There was a breach of bail conditions. The offender altered the deal between himself and the complainant to keep more money for himself. The mitigating factors included that the offender was youthful, the limited duration and frequency of the offence, and a guilty plea – albeit on the day of trial. He was sentenced to 18 months’ incarceration and two years’ probation.
47In R. v. Morgan, 2018 ONSC 2007, the offender was convicted after trial of receiving a material benefit from sexual services. Mr. Morgan entered an intimate relationship with the 18-year-old complainant. She was already a sex worker. After a few weeks, he became more aggressive and controlling. He took over most of her earnings while he had no gainful employment. The relationship ended four months later. It was apparent from the victim’s testimony that the relationship was oppressive and demeaning, and took a considerable toll on her, both emotionally and financially.
48There were several aggravating factors in Morgan. Mr. Morgan’s impugned acts began when the victim was only 18 years old. Mr. Morgan exploited her trust and belief that he was truly her “boyfriend”. Mr. Morgan took most of the money she earned. His exploitation of the victim persisted for several months. The victim suffered considerable stress and emotional harm because of the relationship. The mitigating factors included strong family support, no criminal record, and compliance with bail terms for over two years. The offender was sentenced to 18 months’ incarceration and two years of probation.
49In R. v. Lucas-Johnson, 2018 ONSC 4325, the offender was convicted after trial of two counts of procuring. He met the victim when she was 18 years old. She serviced men for two months. The offender and the victim lived in a domestic relationship, jointly contributing to their lifestyle. The offence did not involve coercion or assault. The aggravating factors included that the offender took advantage of the victim’s emotional attachment to him, that the offender had a criminal record for assaults, uttering threats, and breaches committed in the context of domestic disputes with women, and that the offence involved mistreatment of a woman – analogous to his prior offending. Additionally, he offender was on probation when he committed the offences. The mitigating factors included close family connections and support, that thee offender was youthful, and that there were no drugs, alcohol, or firearms involved. He was sentenced to 12 months’ incarceration and two years of probation.
50In R. v. Ellis, 2017 ONSC 3812, the offender was convicted after trial of procuring a person to have illicit sexual intercourse with another person, procuring a person to become a prostitute, exercising control, direction or influence over the movements of a person in such a manner as to show that he is aiding, abetting, or compelling that person to engage in prostitution, and an assault. Unlike the case at bar, Mr. Ellis groomed the victim into the sex trade and made all the arrangements. The victim believed that they were equal partners, but the offender kept the money, and she began to feel that he was taking advantage of her. The arrangement continued for four months. Mr. Ellis also called the victim and offered to pay for the damages if she dropped the charges.
51Dissimilar to the case at bar, the aggravating factors in Ellis included that the offender committed further offences while on bail, with charges for breach and obstruct. Further, the offender groomed the victim into a life of prostitution and kept most of the money, demonstrative of deception and greed. The relationship was somewhat exploitative and lasted four months. The offender keyed her car and engaged in fear and intimidation toward the victim, then tried to get the victim to recant the allegations. The mitigating factors included several supporting letters filed on sentencing describing positive attributes and that the offender was gainfully employed and had no prior record at the time of the offences. He was sentenced to 20 months’ imprisonment and three years of probation.
52In R. v. McPherson, 2013 ONSC 1635, the offender was found guilty by a jury of procuring a person to become a prostitute and controlling her movements to aid or compel her to engage in prostitution for gain. Mr. McPherson also pleaded guilty to uttering threats against another female with whom he was in an intimate relationship. Mr. McPherson set up the 19-year-old victim, with whom he was in an intimate relationship, as a dancer in a nightclub. He took most of her earnings. Eventually, he instructed her to perform sexual services for club patrons.
53Unlike this case, the pimping lasted 18 months, including the aggravating fact that the acts began when the victim was 19. Mr. McPherson exercised significant control over her, including her work locations, her schedule, and the sexual acts she was required to perform. The offender expected her to meet an earnings quota. He took most of the money and lived largely off those proceeds. The victim’s testimony demonstrated that his abuse had a lasting impact on her. The mitigating factors included strong family support and the offender’s compliance with bail terms. He was sentenced to three years’ incarceration.
54According to the jurisprudence, and as aptly framed by K. Campbell J. in Lopez, at para. 64, some of the relevant factors for my consideration include:
Degree of Coercion/Control: The victim had worked in the sex trade as a prostitute before she met the offender, and it was admittedly her idea to go into the sex trade business. However, the offender quickly began to exploit the victim, albeit there was not a high degree of coercion, and no evidence of verbal abuse or physical violence.
Money Received: The offender received a sum of money from the victim through her sex trade work, and he permitted her to keep a portion of those earnings. The monies received were of a small amount given the limited duration of their interaction.
Age and Number of Prostitutes: The victim had been involved in the business and appeared to be the only prostitute to work for the offender.
Vulnerability of the Prostitute: The victim was not a naïve young woman without street-smarts. However, the offender seized advantage of some emotional vulnerability on her part.
Working Conditions: The victim was expected to work as a prostitute at the direction and insistence of the offender. He was responsible for posting the internet advertisements for her sexual services and he posted them at his own convenience.
Planning and Sophistication: The degree of “planning and sophistication” in this operation was commensurate with the fact that it was just a two or three-person business operation – the victim performed all of the sexual services, and the offender collected all of the financial rewards that were generated by those services. However, it was not a totally unsophisticated operation. The offender regularly used false identification and had the means to create numerous fake identifications and other means to post his internet ads and to handle the victim’s sexual services.
Duration of the Exploitation: The offender exploited the victim over a period of some seven or eight days. Accordingly, the offender trafficked the victim sexually over a limited duration of time, especially when compared to the relevant sentencing jurisprudence.
Violence: Unlike many of the cases furnished by the parties, there was no violence - physical, psychological, or otherwise.
Drugs or Alcohol: There is no evidence in this case that drugs or alcohol were employed by the offender as inducements to the victim to engage in the sex trade.
Victim Impact: As I have already indicated, there was no Victim Impact Statement and the court has scant information regarding the impact on the victim.
Personal Sexual Favours: There is no evidence that the offender had to demand, compel, or otherwise extract personal sexual favours from the victim.
Age of the Customers: The evidence did not address the particular age of the clientele that were generally involved in purchasing the victim’s sexual services.
Preventing the Complainant from Leaving: This factor is non-existent in this case and as mentioned, the victim did not feel restrained from leaving. However, I am mindful that the victim’s voluntary participation is not a mitigating factor and may also constitute an error in law: See Joseph, at paras. 94-106.
55Both counsels’ range of sentence for this case is appropriate. However, it seems to me that when considering the prevailing jurisprudence, the Crown’s proposed sentence of five years’ imprisonment for the circumstances of this offence and offender is somewhat excessive.
56It is reasonable to infer that this type of offence implicates exploitative behaviour. The Crown stresses that a message must be sent to those who participate in this type of conduct, especially when avarice is at play. The Crown argues that the court ought to apply the general aggravating principles that can be inferred from this type of conduct.
57I accept that denunciation and deterrence are paramount considerations. However, in this case, it can be said that Kanyanga’s exploitative conduct is at the lower end of the scale when compared to the other cases presented by the parties. I must consider the evidence presented with the absence of certain aggravating factors that apply to the offence and to this particular offender. The sentence must be proportionate and reflect the degree of moral blameworthiness exhibited by the offender.
58Therefore, at this stage of the analysis, I conclude that a global sentence of four years’ imprisonment is warranted.
Pre-Sentence Detention
59There is some evidence that Kanyanga spent significant time in custody while subject to lockdowns because of staffing shortages. Additionally, he was often “triple bunked” and at times had only sporadic access to fresh air. The unacceptability of such conditions has been the subject of frequent judicial disapproval: see R. v. Powell, 2020 ONCA 743, 153 O.R. (3d) 455, at para. 30; R. v. Johnson, 2022 ONSC 5689, at paras. 69, 70; R. v. H-O., 2022 ONSC 4900, at paras. 88-90; R. v. Doyle, 2022 ONSC 2489, at paras. 54-59; R. v. T.T., 2022 ONSC 722, at para. 46; R. v. Osman, 2022 ONSC 648, at paras. 41-43, R. v. Fermah, 2019 ONSC 3597, at paras. 67-73.
60Unduly harsh conditions of pre-sentence custody are a relevant factor on sentencing and reductions in sentence to account for them are often referred to as a “Duncan credit”, named after the decision in R. v. Duncan, 2016 ONCA 754.
61As Ms. Salih points out, the “Duncan credit” has become a routine part of sentencing due to the Ministry of the Solicitor General’s steadfast refusal to address the systemic problems that justify it.
62During the sentencing hearing, Kanyanga provided some documentation regarding the various custodial institutions where he spent the past two years. While it would have been preferable to have an affidavit from the offender, the records filed by the defence are not contested.
63The defence materials include a letter from the Ministry of Solicitor General Correctional Services (Central North Correctional Centre) dated April 27, 2022, with Lockdown Summary and a letter from the Ministry of Solicitor General Correctional Services the (Hamilton Wentworth Detention Centre) dated May 4, 2023. Some of the information includes references to dates of confinement, lockdowns due to COVID-19 or other reasons, minimal or no yard time, lack of showers, double or triple bunking, and the like.
Analysis: Pre-Sentence Custody
64Regarding the “Duncan credit” as a mitigating factor in the overall sentence, and as directed by the Court of Appeal in R. v. Marshall, 2021 ONCA 344, I am prepared to consider this additional mitigating feature as a reduction toward the global sentence.
65Unlike the “Summers credit”, which is a deduction from what is determined to be the appropriate sentence, the “Duncan credit” is a factor considered when imposing the appropriate sentence. A court may, but is not required to, identify a specific number of days or months as “Duncan credit”: see Marshall, at para. 53. 3
66This approach is intended to address and reflect the harsh jail conditions endured by the offender. Generally, the evidence adduced during the sentencing hearing tends to support Kanyanga’s assertions about “partial” or “full” lockdowns, and the lack of privileges that befell him while being housed at the detention centre.
67I am cognizant of the Fermah decision, wherein Molloy J. did not intend to go through each and every basis for allowing an enhanced credit under the Duncan principles. Nonetheless, she calculated a 3:1 credit based on the facts in that case. It is apparent that Molloy J. was addressing the specific and dire situation that befell that offender at the Toronto South jail. I note that Molloy J.’s quantitative analysis was rendered prior to the direction in Marshall. Although I do not intend to follow the enhanced 3:1 approach applied by Molloy J. in Fermah, a review of the case is instructive. I am disinclined to follow the other line of authorities provided by the defence regarding the approach to enhanced credit, as they all pre-date the direction from the Court of Appeal in Marshall.4
68In R. v. Dubajic, 2023 ONSC 516, Schreck J. applied a 1:1 credit as a mitigating consideration for the offender, who spent three years in pre-sentence custody. See also R. v. Ward-Jackson, 2018 ONSC 178.
69Kanyanga asserts that he has been subjected to 170 days (five and a half months) of full lockdowns and 57 days of partial lockdowns. He had recently undergone a hunger strike at the jail to protest the poor conditions. The effort was somewhat successful, in that there were some changes made by the institution. As mentioned, the offender’s information is not challenged by the Crown. This also includes 282 days, or nine months, of triple-bunking at the Hamilton-Wentworth Detention centre. This latter situation can be described as of disproportionate duration.
70In my consideration of the evidence adduced at this sentencing hearing, I am persuaded that I ought to provide an enhanced credit as a mitigating factor in the imposition of sentence. Thus, I afford five and half months at 1:1 for the full lockdown periods and an additional four and a half months for the nine months of triple-bunking in the cell. As such, the overall sentence is mitigated by the equivalent of 10 months.
Disposition
71I impose a s. 109 Criminal Code weapons prohibition order for life.
72The offender will provide a DNA sample pursuant to s. 487.051 of the Criminal Code. A forfeiture order is granted.
73With respect to count eight, related to procuring L.M. to offer or provide sexual services for consideration, the 48 months (or four year) sentence is mitigated further by the evidence related to Kanyanga’s time in various custodial institutions while awaiting disposition.
74In applying the “Duncan credit” as a mitigating factor in the overall analysis, the ultimate sentence to be imposed for this specific count is 38 months.
75The offender has a total of 25.5 months of pre-sentence custody. With the usual “Summers credit” at 1.5:1, that is the equivalent of 38 months (or three years and two months).
76Therefore, the net disposition is as follows: Regarding count eight, did procure L.M. to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under ss. 286.1(1), Kanyanga is sentenced to one day in jail, with a time served disposition to be noted on the indictment as delineated above (equivalent to 48 months). For the remaining two counts, receiving a material benefit and advertising sexual services for consideration, the sentence is one day in jail, plus time served, concurrent and concurrent.
A.J. Goodman J. Date: June 8, 2023
COURT FILE NO.: CR: 22-493 DATE: 2023-06-08
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING - and - PITCHOU KANYANGA REASONS FOR SENTENCE A. J. GOODMAN J.
Released: June 8, 2023
Footnotes
Footnotes
- Protection of Communities and Exploited Persons Act, S.C. 2014, c. 25.
- Canada (Attorney General) v. Bedford, 2013 SCC 32, [2013] 3 S.C.R. 1101.
- Where the quantum of “Duncan credit” is specified, the conceptual distinction explained in Marshall will not affect the ultimate sentence the offender will be required to serve. However, it will affect how the Warrant of Committal on Conviction is completed, as it requires the court to identify the term of imprisonment that would have been imposed before credit is granted pursuant to s. 719(3.1). As a result, “Duncan credit” is not specifically identified on the Warrant of Committal.
- For example, see R. v. Jama, 2018 ONSC 1252; R. v. Bedward, 2016 ONSC 939; R. v. Reeve, 2018 ONSC 3744; R. v. Tello, 2018 ONSC 2259; R. v. Edwards, 2018 ONSC 2851.