Court File and Parties
Court File No.: CR-22-30000534 Date: 2024-04-05 Ontario Superior Court of Justice
Between: His Majesty the King – and – S.L.
Counsel: Susan Orlando, for the Crown Nate Spear-Balka, for S.L.
Heard: December 15, 2023 and January 18, 2024
Before: Pinto J.
Sentencing Decision
Publication Ban
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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada. Since disclosure of the offender’s name may lead to the identification of the complainant, the names of the accused and the complainant have been anonymized.
Overview
[1] On October 27, 2023, following a jury trial, S.L. was convicted of the following five offences:
a) human trafficking of the complainant, his wife, contrary to s. 279.01(1) of the Criminal Code;
b) receiving a benefit knowing that it was derived from sexual services, contrary to s. 286.2(1) of the Criminal Code;
c) receiving a benefit knowing that it was derived from human trafficking, contrary to s. 279.02(1) of the Criminal Code;
d) assault, contrary to s. 266 of the Criminal Code; and
e) trafficking cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act.
[2] The jury acquitted S.L. of the offences of advertising sexual services and uttering a death threat.
[3] The circumstances of the offences are that S.L. met the complainant in 2013. They started living together in 2014 and were married in June 2016. Each has children from previous relationships. They separated in January 2019. A month later, the complainant contacted the police and alleged that S.L. assaulted her. In September 2020, the complainant gave a second statement to the police complaining of S.L. forcing her to engage in sex work.
[4] S.L. did not testify at trial.
[5] The jury convicted S.L. of engaging in human trafficking of the complainant, receiving benefits knowing they were derived from human trafficking and sexual services, assaulting the complainant, and trafficking in cocaine.
[6] The Crown requests that S.L. receive a significant prison sentence of 12 years, whereas the Defence submits that the circumstances warrant a sentence of 42 months, before the application of credits. For the reasons that follow, I find that a total global sentence of 9 years is appropriate, before the application of 6 months of credit. S.L. will have to serve a remaining sentence of 8-1/2 years of imprisonment.
Circumstances of the Offender
[7] A Pre-Sentence Report (PSR) was prepared by Derek Nixon, a Probation and Parole (P&P) Officer, dated November 30, 2023.
[8] The PSR indicates that S.L., now 41, was born on September 19, 1982. He has two daughters from two previous relationships, but he is not currently in contact with them because of outstanding charges before the court. Both his present partner, D.G., and a female friend who acted as his sureties, spoke well of him. However, S.L. continues to deny his involvement in the charges and does not accept responsibility for his actions. The PSR states that S.L.’s current partner and friends support this attitude.
[9] The PSR notes that the complainant stated that she was on ODSP for five years due to the abuse she suffered at the hands of S.L. She was on medication for severe anxiety, panic attacks, and insomnia while recovering from the experience. However, she is now off the medication, has been sober (alcohol and cocaine free) for five years, and has not used marijuana for six months. She is no longer on ODSP and is working again.
[10] The PSR notes that S.L. had a difficult childhood, bouncing between his mother’s, father’s, and grandparent’s houses. He became a ward of the Children’s Aid Society at age 14. Around that time, he began to struggle with substance abuse, using alcohol, acid, and mushrooms. He left high school after grade nine.
[11] During the period of the recent offences, he drank heavily and used MDMA, cocaine, and marijuana. He currently drinks a moderate amount and uses one gram of marijuana per day. He is in good physical and mental health.
[12] S.L. has a dated criminal record. This includes a conviction for assault in 1996, fraud in 2001, robbery and assault causing bodily harm in 2002, and failing to comply with a probation order in 2005. There is a current outstanding matter before the court that allegedly occurred while S.L. was on bail for the charges before this court.
[13] The PSR does not recommend community supervision as a suitable option.
[14] S.L. is currently employed as a skilled labourer with a construction company. He earns $40 an hour in a unionized position. Between 2015 and 2020, he was sporadically employed.
[15] S.L. re-partnered with D.G. in 2021 after his separation from the complainant in 2019. S.L. and D.G. consider themselves and D.G.’s three-and-a-half-year-old son a family.
[16] S.L. was arrested on October 6, 2020. He was on bail (house arrest) until June 25, 2021 when his bail was varied such that he had a 10:00 p.m. curfew. He was allowed to leave his residence for work and under certain other conditions while on bail. S.L. was arrested again in July 2022 in connection with sexual assault charges against his biological daughter. He disputes those charges. Since July 2022, he remains under house arrest.
Sentencing Position of the Crown
[17] The Crown seeks a 12 year global sentence for S.L., less any credits, as follows:
a) 10 years for the human trafficking offence (count 1).
b) 2 years for the cocaine trafficking offence (count 7) to be served consecutively to the sentence for human trafficking.
c) 5 years for the receiving a benefit (human trafficking) offence (count 4) to be served concurrently to the sentence for human trafficking.
d) The remaining conviction for receiving a benefit (sexual services) should be stayed pursuant to the Kineapple principle: Kienapple v. R., [1975] 1 S.C.R. 729.
e) The Crown did not specify what sentence was appropriate for the assault conviction but suggested that sentences for any remaining offences should be served concurrently to the sentence for the human trafficking offence.
[18] Additionally, the Crown seeks:
a) A DNA order in respect of the human trafficking conviction which is a primary designated offence.
b) An order that S.L. be prohibited from carrying or applying for weapons for life, pursuant to s. 109 of the Criminal Code.
c) An order, pursuant to s. 743.21(1) of the Criminal Code, that prevents S.L. from communicating with the complainant for the custodial period of his sentence.
d) A forfeiture order in respect of certain offence-related property.
[19] The Crown presented several authorities that suggest a custodial sentence in the range of four to eight years for human trafficking is appropriate. However, as sentencing is an individualized process, the appropriate sentence can be higher or lower than this range depending on aggravating and mitigating factors.
[20] The Crown submits that S.L. is not deserving of pre-custody Summers credit nor any Downes or Duncan credit.
[21] The Crown submits that a significant aggravating factor is that S.L. abused his intimate partner and got her addicted to alcohol and drugs so that she could continue to work in the sex trade which financially benefited him. Abuse of an intimate partner and breach of trust are statutory aggravating factors under ss. 718.2(a)(ii) and (iii) of the Criminal Code respectively. Further, while the period of escorting was two years, the period of abuse was arguably closer to five years.
[22] The Crown also submits that the sentence it proposes is supported based on the Tang/Miller factors: R. v. Tang, 1997 ABCA 174, 200 A.R. 70 and R. v. Miller (1997), 40 O.T.C. 17 (Gen. Div.). The factors include:
the degree of coercion or control imposed by the accused on the complainant’s activities;
the amount of money received by the accused and the extent to which he allowed the complainant to retain her earnings;
the age of the complainant and any special vulnerability she may have;
the working conditions in which she was expected to operate, including health and safety concerns;
the degree of planning and sophistication, including whether the pimp was working in concert with others;
the numbers of customers the complainant was expected to service;
the duration of the exploitative conduct;
the degree of violence, if any, apart from that inherent in the accused’s parasitic activities;
the effect of the accused’s exploitation on the complainant;
the extent to which the accused compelled sexual favours for himself from the complainant;
any attempts by the accused to prevent the complainant from leaving his employ.
[23] The Crown noted that, in the complainant’s victim impact statement, she reminded the court that it took her a long time to recover from the psychological and physical harm inflicted upon her by S.L.’s criminal conduct. There were times that she was forced to service up to eight to ten men per night. She ended up being forced into sex work seven days a week, being exposed to STDs and unprotected sex. That S.L. was her husband who was supposed to protect her made his conduct that much more damaging.
Sentencing Position of the Defence
[24] The Defence submits that the appropriate sentence for S.L. is a global sentence of 42 months in custody, before the application of 8 months of Downes credit.
[25] The Defence provided 13 letters of support for S.L. The authors of the letters include S.L.’s current partner, his current partner’s mother and sister, friends, co-workers and his present landlord. In general, the letters speak positively of S.L. in terms of his hard work, positive attitude and amiable character.
[26] The Defence distinguished a number of cases that the Crown relies upon. While the complainant was S.L.’s intimate partner, she was not as young as many of the victims in several of the cases. The police did not find S.L. in possession of any cocaine and he was not charged with or convicted of possession for the purpose of trafficking. S.L. has the support of his current partner, his friends and co-workers and is currently employed. Accordingly, he has a reasonable prospect of rehabilitation.
[27] The Defence also urged me to consider that the facts associated with the assault conviction were not connected to forcing the complainant to engage in sexual acts.
[28] The Defence points out that, ultimately, it was S.L. who ended his relationship with the complainant. This was not a case where the victim was held captive or made to pay an exit fee for leaving an exploitative relationship.
[29] Finally, the Defence urges that I impose a global sentence on S.L. as opposed to sentences that run consecutively for the human trafficking and drug trafficking offences. The Defence offered the example of R. v. Chahinian, 2022 QCCA 499, where the Quebec Court of Appeal upheld a sentencing judge’s decision to provide a global custodial sentence of four years (plus a fine of $10,000) for an offender who was found guilty of human trafficking and trafficking cocaine.
Discussion
[30] First, in consideration of the relevant Tang/Miller factors, I find that:
(1) S.L. imposed a high degree of coercion or control on the complainant’s activities. While this did not amount to confinement or imprisonment, and while the complainant drove in her own vehicle to the venues where the escorting occurred, S.L.’s degree of psychological control over the complainant remained very strong.
(2) The complainant gave S.L. most, if not all, the money she earned from escorting and sexual services. S.L. had the password to the complainant’s bank account and spent money from her account. Most of the time he would take her bank card without asking. For a period of time, the complainant’s own credit history was compromised because she made purchases on behalf of S.L. that the couple could not afford, which left her thousands of dollars in debt even after the relationship ended. During the relationship, S.L. worked sporadically or not at all, and the complainant was left with little ability to retain her own savings.
(3) The complainant met S.L. when she was around 32 years old. S.L. is one year younger. She was the single mother of two children. The complainant’s special vulnerability arose from being S.L.’s intimate partner and his wife and later from being addicted to cocaine that was supplied by S.L. The complainant used cocaine to numb herself so that she could perform sexual activities with strange men. Part of why she stayed in the exploitative relationship, was that she loved S.L. and did not want her second marriage to fail.
(4) For a period of about two years, 2016 to 2018, S.L. forced the complainant to work in hotels, cars and other locations where she was forced to sexually service multiple men a night and up to seven days a week. She was forced to engage in rough sex, unprotected sex, and have sex with drug dealers which caused her to be very fearful for her safety.
(5) S.L. did not exploit other women or work in concert with others in terms of his criminal conduct. S.L. did not use a sophisticated scheme to traffic the services of the complainant.
(6) The complainant was expected to service dozens of customers a week during the approximate two year period of escorting.
(7) The duration of the escorting was two years, from 2016 to 2018, but the duration of the exploitative conduct was longer, up to 5 years, from 2014 to the 2018. While the complainant’s initial involvement in sex clubs was recreational and voluntary, S.L. convinced her that she and they could receive money in exchange for her performing sexual services. She initially performed sexual services in massage parlours, but then this escalated into performing in-calls and out-calls in cars, motels, hotels and other locations determined by S.L.
(8) It is proven that S.L. assaulted the complainant on one occasion. The degree of physical violence by S.L. against the complainant was low, albeit the complainant remained very psychologically fearful of S.L.
(9) The effect of S.L.’s exploitation was devastating on the complainant. She described her experience as her body being taken away for her. She had to stop working for 5 years because she could not manage with panic attacks, fear, insomnia and sickness. She had to recover from her addiction to alcohol and drugs which she used to sustain her in the escorting and sexual activity. She became estranged from her sister and has a strained relationship with her parents. She felt extreme shame and guilt and could no longer trust men or engage in intimacy with them. She lived in constant fear that someone would see the ads and pictures that were used to solicit her sexual services. For a number of years she felt worthless, dirty and ashamed of the sexual activities that she was forced to perform. She now describes herself as clean and sober, and in a healthy intimate relationship.
(10) There is no evidence that S.L. compelled the complainant to engage in sexual activity with him.
(11) S.L. prevented the complainant from leaving escorting by psychological control and by getting her addicted to cocaine.
[31] I have reviewed similar cases, summarized here below.
[32] In R. v. K.P., 2023 ONSC 6767, Baltman J. commented, at para. 27, that
[a]s Boswell J. observed in R. v. A.E., 2018 ONSC 471 at para. 65, defining a typical range for human trafficking is difficult because of the wide variety of circumstances in which these offences are committed. Accepting that sentencing is a highly individualized process, counsel agree with his observation that sentences for these offences now frequently range from roughly 4 to 8 years.
[33] I agree with the comments of Somji J. in R. v. Downey, 2023 ONSC 3776, that:
[13] The range for sentences involving one victim, however, is not confined to four to eight years. Depending on the aggravating factors, courts have imposed sentences beyond eight years. In R. v. A.S., 2017 ONSC 802, the sentencing judge imposed a sentence of 12 years for human trafficking and multiple assaults. The accused was 35 years of age with a prior criminal record. He exploited a vulnerable indigenous woman for a period of four years. In R. v. Jordan, the Ontario Court of Appeal upheld a nine-year sentence against an accused with a prior criminal record who trafficked his girlfriend for a period of five years: 2019 ONCA 607.
[34] In K.P., Baltman J. also referenced the Tang/Miller factors and the following cases, at para. 33:
R. v. Augustin and St. Armand, 2022 ONSC 5901: Justice Chozik imposed a sentence of 8.5 years on Augustin, noting that but for his background, remorse, and the insight he showed, she would have imposed a sentence in the nine-to-ten-year range. He had been found guilty by a jury of human trafficking, procuring, and receiving a material benefit from those acts. The complainant serviced 8 -10 men a day for over two and a half months, and saw none of the proceeds. Before being sentenced, Augustin accepted responsibility for his offences, apologized to the victim and impressed the judge as being genuinely remorseful.
R. v. T.T., 2022 ONSC 722: The trial judge concluded that a fit sentence was 9 years – 6 years for human trafficking and 3 years consecutive for sexual assault. (She reduced the sentence to eight years for harsh pre-sentence custody). The victim was 17. The offender sexually assaulted her. He and his associate took photos of her and posted them online advertising sexual services, which she provided for three days. The offender and his associate kept all the money, and gave the victim drugs and alcohol. They also repeatedly raped her. She tried to leave but was unable to. The offender was “extremely remorseful” for his conduct. He apologized to the victim, and took “full responsibility for his actions.” Justice Kelly sentenced the offender to 9 years incarceration – 5 years for human trafficking and 3 years consecutive for sexual assault.
R. v. A.S., 2017 ONSC 802: The trial judge imposed a sentence of 13 years – 12 years for human trafficking, with sentences for related offences and offences of violence to run concurrently, and a 2-year sentence for choking to run consecutively (reduced to 1 year for totality). The offender was highly abusive, repeatedly sexually assaulted the complainant, choked her on one occasion, and left her bleeding by a dumpster after severing her Achille’s tendon with a piece of glass. The victim was a troubled Indigenous young woman.
R. v. Jordan, 2019 ONCA 607: The Court of Appeal upheld a 9-year sentence by Coroza J., (as he then was), consisting of 8 years for human trafficking/procuring where the offender exploited his girlfriend for several years, was violent and controlling with her, pressured her to work during her pregnancy, and lived off her earnings, plus a further 1 year for intimidating a justice participant (reduced from 2 years for totality).
[35] In R. v. Lopez, 2018 ONSC 4749, K.L. Campbell J., sentenced an offender who engaged in human trafficking of the victim, a sex trade worker, over a 17-1/2 month period. A global sentence of five years was imposed before the application of credits. The victim was 17 and the offender was two years older. The offender had an extensive criminal record with 27 convictions. The sentencing judge noted that the victim fell in love with her abuser and wanted to continue their romantic relationship. The offender seized advantage of that emotional vulnerability to perpetuate the abuse. Notably, in Lopez, there was no evidence that drugs or alcohol were employed by the offender as inducements to the complainant to engage in the sex trade. I accept that since Lopez, which was decided in 2018, the range of sentences for human trafficking related crimes has consistently increased: Augustin and St. Armand, at para. 89.
[36] In R. v. Eftekhar, 2020 ONSC 1386, K.B. Phillips J. imposed a four year sentence in circumstances where a teenaged Indigenous victim was human trafficked by an offender in his mid-50s. When she tried to leave the relationship, she was assaulted. The offender was found to have decent rehabilitative prospects. The sentencing judge also found the offender to have been remorseful. Notably, the offender was not found to have received a material benefit from the victim’s sex work activities.
[37] I have also considered the caselaw that is canvassed by Somji J. in Downey, at paras. 11 to 19.
Mitigating and Aggravating Factors
[38] The fact that S.L. did not plead guilty to any of the offences is not an aggravating factor. However, it is not a mitigating factor: R. v. Johnston and Tremayne, [1970] 4 C.C.C. 64 (Ont. C.A.).
[39] I find S.L.’s personal and family background to have been challenging, which I consider a mitigating factor.
[40] Having read the letters of support, and recognizing that S.L. has the support of his current partner, I find that S.L. has potential for rehabilitation. He has been gainfully employed and appears to be well regarded by his co-workers. Troublingly, however, S.L. continues to deny his involvement in the charges and does not accept responsibility for his actions. It does not appear that the authors of the letters of support (other than S.L.’s current partner and her family) are aware of the true nature of S.L.’s criminal conduct.
[41] On the aggravating side, S.L. has a dated but serious criminal past. His convictions in the present matter demonstrate that he engaged in exploitative criminal abuse of his own wife and intimate partner for no less than two years. He forced her to engage in dangerous and degrading sexual activity. He got the complainant addicted to cocaine and encouraged her habit in order that she continue to engage in sex work, which benefited him financially. Whereas it is true that S.L. initiated the termination of the relationship, this came at a point when the complainant was mentally and physically broken and under hospitalization in January 2019. He ruined the complainant’s credit, did not work for much of their relationship, and lived parasitically off the avails of her sex work for a number of years.
Sentencing Decision
[42] I am guided by the principles of sentencing that are set out in ss. 718, 718.1, and 718.2 of the Criminal Code. The sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender. An appropriate sentence is one that reflects a realistic appraisal of the offender’s prospects for rehabilitation, his individual and family circumstances, and the principle of restraint.
[43] I note that the Crown requests a ten year sentence of imprisonment for the human trafficking conviction alone. Given that the upper range in the case law is currently eight years, I find that the Crown’s proposal does not strike the right balance. I also reject the Defence proposal of a global sentence of 42 months, finding that it is well below the range established by the caselaw. While no one case is perfectly on point, I am drawn to the Court of Appeal’s decision in Jordan and find that it offers an appropriate sentencing model. In Jordan, the Court of Appeal upheld a nine-year sentence which included eight years for human trafficking where the offender exploited his girlfriend for several years and lived off her earnings. The offender in Jordan received a further one-year sentence for intimidating a justice participant.
[44] I find that a global sentence of nine years is just for the following reasons.
[45] The appropriate sentence for the human trafficking offence belongs in the upper tier of the sentencing range for human trafficking, so seven to eight years. This is because of the duration of the exploitative relationship (between two and five years, but no less than two years), the fact that the victim was an intimate partner, the breach of trust of the domestic relationship, and the fact that S.L. lived off the avails of the complainant’s sex work.
[46] S.L. is not a first-time offender. He has a dated but fairly serious criminal past that includes convictions for robbery and fraud.
[47] A very significant aggravating factor is that S.L. used cocaine to keep the complainant addicted so that she would continue the sex work which materially benefitted him.
[48] The immediate and long-term impact on the complainant has been devastating physically, psychologically and financially.
[49] S.L. has not shown remorse for his criminal conduct.
[50] S.L. has shown some pro-social behaviour in terms of his attendance at work. I accept that he is supported by the current partner and is effectively a father to a young son.
[51] The sentence for the receiving a benefit (human trafficking) conviction should not be forgotten and should be served concurrently to the sentence for human trafficking as the offences were closely linked: R. v. A.E., 2018 ONSC 471, at para. 40. I find that the five year sentence proposed by the Crown for the receiving a benefit offence is appropriate.
[52] However, I disagree with the Crown that the sentence for trafficking cocaine should be served consecutively to the sentence for human trafficking. First, the only discernible victim of the trafficking offence was the complainant. Second, no quantity of cocaine or other controlled substance was found in S.L.’s possession. It is difficult to make a foray into the sentencing jurisprudence for trafficking of cocaine which usually has a quantity associated with it. Third, if I were to impose a consecutive sentence for the trafficking cocaine offence, I would be concerned that the overall sentence would be excessive and offend the totality principle. Finally, I find that, in the circumstances of this case, the trafficking offence was very much linked to keeping the complainant addicted so that she could continue to work in the sex trade. The better approach is for the sentence for trafficking to be served concurrently to the sentence for human trafficking. I find that the appropriate sentence for the trafficking offence is two years.
[53] S.L. was also convicted of assaulting the complainant. I find that the assault did not occur in the course of, or for the purpose of, the continued exploitation or abuse of the complainant. The assault occurred when S.L. struck the complainant with his ring while they were engaged in sexual activity. I find that the appropriate sentence for the assault conviction is one year, to be served concurrently to the sentence for human trafficking.
Discussion of Credits
[54] Given that S.L. has been under house arrest for what cumulatively amounts to three years, I would grant him a Downes credit of 6 months. I note that S.L. was still permitted to leave his residence for work. I was advised that the amount of time that S.L. spent in pre-trial detention was minimal and, in those circumstances, I have not provided a Summers credit.
Conclusion
[55] In conclusion, S.L. is sentenced:
a) On count 1 in respect of the offence of human trafficking, to 9 years in custody.
b) On count 4 in respect of the offence of receiving a benefit (human trafficking), to 5 years in custody to be served concurrently to the sentence for count 1.
c) On count 5 in respect of the offence of assault, to 1 year in custody, to be served concurrently to the sentence for count 1.
d) On count 7 in respect of the offence of trafficking a controlled substance, to 2 years in custody to be served concurrently to the sentence for count 1.
[56] With the application of Downes credit, S.L.’s sentence will be reduced by 6 months, therefore he shall be required to serve a period of imprisonment of 8-1/2 years.
[57] I agree with the Crown in respect of the ancillary terms of sentence. Accordingly, I also order that S.L. be subject to:
a) A DNA order in respect of the human trafficking conviction which is a primary designated offence.
b) An order that S.L. be prohibited from carrying or applying for weapons for life, pursuant to section 109 of the Criminal Code; and
c) An order, pursuant to s. 743.21(1) of the Criminal Code, that prevents S.L. from communicating with the complainant for the custodial period of his sentence.
d) A forfeiture order in respect of certain offence-related property namely a USB key, cellular phone and laptop.
Pinto J. Released: April 5, 2024