COURT FILE NO.: CR-22-10000325 DATE: 20240620

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – JEAN EDY DONACIEN

Counsel: M. Gharabaway, for the Crown D. Mulak, for Mr. Donacien

HEARD: April 19, June 6, 2024

REASONS FOR SENTENCE

SCHRECK J.:

[1] Jean Donacien is what is colloquially known as a “pimp.” He encouraged and later coerced a young woman to work in the sex trade and to give him all of her earnings. He did so by deceiving her as to the nature of their relationship and later engaging in violence towards her.

[2] Following a judge-alone trial, Mr. Donacien was convicted of human trafficking (Count 1), recruiting, holding, concealing or harbouring a person who provides sexual services for consideration (Count 2), receiving a material benefit from the sale of sexual services (Count 3), assault causing bodily harm (Count 4), two counts of assault (Counts 5 and 6) and unlawful confinement (Count 7). The court must now determine an appropriate sentence.

I. FACTS

A. The Offences

(i) Facts Supporting the Convictions

[3] The facts are set out in detail in my reasons for judgment. The complainant, C.C., first met Mr. Donacien in December 2019 while she was living in British Columbia and he in Montréal. They came to Toronto together so that C.C. could work in the sex trade with Mr. Donacien’s assistance. At this point, C.C. believed that Mr. Donacien loved her. She posted advertisements which Mr. Donacien paid for, and he rented a car and an apartment. Both of them would communicate with clients and Mr. Donacien would drive C.C. to meetings with them.

[4] Mr. Donacien insisted that C.C. immediately turn all of her earnings over to him, which she did. He told her that he would invest the money for her and made her feel bad when she questioned him about it. C.C. did not know anybody in Toronto and depended on Mr. Donacien because he took all of her earnings. C.C. estimated that she gave approximately $30,000 to Mr. Donacien. Almost half of this amount was verified through bank records of electronic transfers.

[5] The relationship between Mr. Donacien and C.C. began to deteriorate over time and Mr. Donacien engaged in assaultive behaviour towards her on at least three occasions. On one occasion, he picked her up and threw her onto the ground after she had become jealous as the result of a post she saw on social media. On another occasion, Mr. Donacien struck C.C.’s head against a car window while they were driving because he believed that she was trying to grab his bag. I found that these incidents contributed to C.C.’s fear of Mr. Donacien and was part of his overall course of conduct in maintaining control over her.

[6] The relationship ended in March 2020 when C.C. and Mr. Donacien had an argument while at an apartment belonging to one of his friends. Mr. Donacien assaulted C.C. and locked her out on the balcony while she was dressed only in a T-shirt. C.C. had to jump off the balcony, which was on the third floor, in order to escape. She later went to the police to make a statement.

(ii) Victim Impact

[7] C.C. prepared an eloquent victim impact statement in which she asked rhetorically how she could “possibly convey the depth of despair, the loss of dignity, and the erosion of my self-worth under your calculated exploitation?” While she described suffering as a result of Mr. Donacien’s actions, she also made it clear that she intended to reclaim her life and to heal. She also pointed out that she was not alone and that there are many others who are victims of exploitation and that more should be done to protect those who are vulnerable.

B. The Offender

(i) Personal History and Family

[8] A presentence report (“PSR”) was prepared in this case. It indicates that Mr. Donacien is 30 years old and was born in Montréal. He has five sisters and one brother. His parents came from Haiti and Mr. Donacien’s father returned there while he was still very young, although he and his father maintained a relationship. His mother re-married and Mr. Donacien had a difficult relationship with his stepfather, who was violent towards him on at least one occasion. Mr. Donacien has a close relationship with his older sister and his mother, who is currently suffering from cancer. His family continues to be supportive of him. Mr. Donacien’s father recently passed away.

[9] Mr. Donacien has a three-year-old son from a previous relationship. The mother of the child described her relationship with Mr. Donacien as “toxic” and him as “controlling,” although he was never physically violent towards her. Mr. Donacien and his family remain involved in the child’s life.

(ii) Education and Employment

[10] Mr. Donacien obtained good grades in high school but had disciplinary problems and was expelled from one school for some sort of misconduct. He ultimately did not finish high school and is two credits short of obtaining a diploma. He has been employed in a variety of jobs, but mostly working for his sister who owns a landscaping company. He hopes to continue to work for her when he is released from custody and to eventually start his own landscaping business.

(iii) Acceptance of Responsibility

[11] Mr. Donacien told the author of the PSR that he is not guilty of the charges he has been convicted of, a view that is apparently shared by some of his family members.

(iv) Criminal Record

[12] Mr. Donacien has a prior record. As a youth, he was found guilty in 2010 of failing to comply with a release order and robbery, for which he was placed on probation and required to perform community service. He was convicted of a number of offences between 2014 and 2017, including break and enter, several fraud-related offences and failing to comply with various court orders for which he received sentences ranging from fines and probation to short reformatory sentences. The only conviction involving violence was an assault in 2016, the sentence for which is unclear. In total, Mr. Donacien’s record consists of 18 prior convictions.

(v) Length and Conditions of Presentence Custody

[13] Mr. Donacien was arrested on the charges before the court on March 20, 2020 and released on bail on March 26, 2020. He returned to custody on April 6, 2023 when he was arrested on unrelated charges that were later stayed. He has spent a total of 446 days in presentence custody, most of which were at the Maplehurst Correctional Complex.

[14] While on bail, Mr. Donacien was required to live with his surety but was not subject to house arrest or a curfew.

[15] Maplehurst records were obtained for the period between April 7, 2023 and April 16, 2024 (a total of 375 days). According to those records, inmates are ordinarily permitted to be out of their cells for 6.5 hours each day. During the period covered by the records, Mr. Donacien was subjected to a full lockdown (when he was not permitted out of his cell for any of the 6.5 hours) on 88 days (23.5% of the time) and a partial lockdown on 42 days (11.2%). In total, he was subjected to some form of lockdown 34.7% of the time. The reasons for the lockdowns are not stated in the records, but I infer from past cases that the majority of them were because of staff shortages.

[16] The records also indicate that the cells are designed to be occupied by two people, but that Mr. Donacien shared a cell with two other people on 63 days (16.8%).

II. ANALYSIS

A. Relevant Sentencing Principles

(i) The Fundamental Purpose of Sentencing

[17] Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society ….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718 (a) to (f), including denunciation, general and specific deterrence and rehabilitation. As the Ontario Court of Appeal observed in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 58, the various objectives “will not necessarily point toward the same sentencing disposition” and that the court must “prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender.”

[18] While there will rarely be only one possible fit sentence, s. 718.1 of the Criminal Code provides that any sentence that is ultimately imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 30.

(ii) Sentencing for Human Trafficking and Related Offences

[19] While the offence of human trafficking can be committed in a variety of ways, it is most commonly applied to those who are colloquially referred to as “pimps.” Mr. Donacien and others like him derive benefit from others whom they directly or indirectly harm and contribute little or nothing in return. They are parasites. I adopt what was said by my colleague, K.L. Campbell J., in R. v. Lopez, 2018 ONSC 4749, at para. 52 to the effect that these types of offences “typically are involved in the exploitation, degradation and subordination of women” and are essentially “a form of slavery” in which the services of sex workers are treated as “an endlessly available commodity to be simply bought and sold in the market place.”

[20] What pimps share with drug traffickers is that they profit by exploiting the vulnerabilities of others. However, pimping has the added evil of almost always having at its root misogynistic attitudes and the implicit assumption that women are but objects or commodities that exist for the benefit of men. For all of these reasons, it is well established that denunciation and deterrence are primary objectives in sentencing human trafficking offences of this sort.

B. The Sentencing Range

[21] Counsel for both parties have provided me with a number of sentencing decisions. These decisions are similar to this case in some respects and different in others but are useful to determine what the “discerned” range is, that is, the range based on what other courts have historically imposed, which is to be distinguished from a “formal” range that is created by an appellate court: R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, at para. 19. I do not intend to go through all of these cases. My colleague, DiLuca J., recently considered a number of sentencing decisions in this area in R. v. McEwan, 2023 ONSC 1608, at para. 80 and concluded that the cases he reviewed “establish a range of four to eight years, with a cluster of cases between five and six years.” The cases provided to me by counsel are consistent with this.

C. Aggravating Factors

[22] The human trafficking sentencing caselaw has developed a list of factors that are helpful to consider when determining the appropriate sentence and which are enumerated in Lopez, at para. 53, as well as other cases. These are, for the most part, potential aggravating factors. The fact that any of them may be absent is not a mitigating factor.

[23] Not all of the factors in Lopez apply in this case and there are some about which I have no evidence. In this case, Mr. Donacien exercised a fairly significant degree of coercion with respect to C.C. He received a significant amount of money from her, although it appears that she was able to keep some of her earnings as she eventually rented her own premises. C.C. was fairly young, but not underage. She was vulnerable because of the situation she was in, but not because of any physical or mental disability or any addiction issues. The exploitative relationship lasted for about three months. Mr. Donacien was violent towards C.C., although the violence was not directly related to the human trafficking.

[24] Mr. Donacien has a fairly significant criminal record, although I note that there are no prior convictions for human trafficking offences and only one prior conviction for assault.

[25] The fact that Mr. Donacien continues to deny his guilt is not an aggravating factor. It is simply the absence of a mitigating factor.

D. Mitigating Factors

(i) Personal Circumstances

[26] With respect to mitigating factors, Mr. Donacien has a supportive family, which is relevant to his prospects for rehabilitation. He is Black, but I heard no evidence of how he has been affected by racism, although I assume that he must have been to some extent.

(ii) Conditions of Presentence Custody

[27] As noted earlier, Mr. Donacien was subjected to lockdowns for over a third of the days he spent in presentence custody and was triple-bunked for approximately 17% of the time. It is now well accepted that the existence of unduly harsh conditions in presentence custody is a relevant factor on sentencing. Reducing a sentence on this basis is often referred to as “Duncan” credit after the decision in R. v. Duncan, 2016 ONCA 754. However, in R. v. Marshall, 2021 ONCA 344, at para. 52, the court explained that this is not really a “credit,” but rather a mitigating factor to be considered together with other aggravating and mitigating factors. It is essentially a collateral consequence of the commission of the offence and, as such, is relevant to the offender’s personal circumstances and must be taken into account to ensure proportionality, although it cannot be used to reduce a sentence to the point that it becomes disproportionate: R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at paras. 48, 56.

[28] However, unlike other collateral consequences which are fact-specific, the existence of unduly harsh conditions of presentence custody is a systemic problem that has been ongoing for several years. Courts have condemned these conditions as being unacceptable on countless occasions. The government’s response to these criticisms has been to do nothing. To ignore the state’s refusal to heed the court’s admonitions risks bringing the administration of justice into disrepute. As a result, in addition to ensuring proportionality, granting credit for time spent in harsh conditions also serves to communicate the court’s disapprobation of the state’s conduct. Failing to maintain basic standards of treatment of presumptively innocent prisoners is wholly unacceptable, as is ignoring repeated judicial expressions of concern: R. v. Bernard, 2021 ONSC 5817, at paras. 26-32; R. v. Truong, 2023 ONSC 7518, at para. 54; R. v. Shaikh, 2024 ONSC 774, at para. 27; R. v. Perez, 2024 ONSC 2247, at paras. 45-47; R. v. Williams, 2022 ONSC 3080, at paras. 29-30; R. v. McEwan, 2023 ONSC 1608, at para. 99; R. v. Spicher, 2020 ONCJ 340, at paras. 66-67.

[29] The amount of time that a sentence is reduced by does not need to be specified when a court takes into account the conditions of presentence custody, although it is “not necessarily inappropriate” to do so: Marshall, at para. 53. Although I will not quantify the mitigating effect of this factor in this case, it is not insignificant. The government needs to understand that people who are convicted of serious offences are spending less time “behind bars” because of its refusal to maintain basic standards of treatment.

E. The Sentence to be Imposed

(i) The Appropriate Sentence

[30] The conduct Mr. Donacien engaged in was serious and there are several aggravating factors, although some aggravating factors seen in other cases are absent. There are few mitigating factors of any significance other than the conditions of Mr. Donacien’s presentence custody.

[31] As noted earlier, denunciation and deterrence are the primary sentencing objectives in cases of this nature. Mr. Donacien’s criminal record, while mostly unrelated, suggests that there is little optimism with respect to his prospects for rehabilitation. However, I cannot say that there is no hope in this regard. It appears that he has never served a penitentiary sentence before. Hopefully, the experience of doing so and the fact that he now has a young son will lead him to re-evaluate his life choices.

[32] Having considered all of the relevant factors and sentencing objectives, I have concluded that the appropriate total sentence is imprisonment for five years. While Mr. Donacien has been convicted of a number of offences, they are all closely related in that they are part of his overall course of conduct in controlling and profiting off of C.C. As a result, all of the sentences will be concurrent in order to give effect to the principle of totality: Friesen, at para. 155; R. v. Bertrand Marchand, 2023 SCC 26, 487 D.L.R. (4th) 201, at para. 99.

(ii) Credit for Presentence Custody

[33] In accordance with R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, Mr. Donacien is entitled to credit for the 446 days he has spent in presentence custody at a rate of one and half days for each day, for a total of 669 days, or approximately 22 months. This leaves 38 months, or three years and two months, left to be served.

F. Restitution

[34] The Crown seeks a restitution order pursuant to s. 738(1)(a) of the Criminal Code in relation to some of the earnings C.C. gave to Mr. Donacien. That section allows such an order to be made with respect to the loss of property “as a result of the commission of the offence” and “where the amount is readily ascertainable.”

[35] C.C. provided her earnings to Mr. Donacien as a result of his coercive behaviour. He did nothing that entitled him to any of it. It is clear that C.C. lost this money as a result of the commission of the offence.

[36] With respect to whether the amount is “readily ascertainable,” the Crown very fairly seeks an order only with respect to the amounts that C.C. provided to Mr. Donacien by way of electronic transfer and for which there are bank records. Those records, which were Exhibit 3 at trial, reflect 25 transfers between December 24, 2019 and February 23, 2020 totalling $13,010. It is therefore appropriate that there be a freestanding restitution order in that amount.

[37] The amount set out in the restitution order is to be paid by February 20, 2028, which is six months after the warrant expiry date of his sentence.

III. DISPOSITION

A. Sentence of Imprisonment

[38] The sentences are as follows:

• Count 1 - human trafficking: 5 years;
• Count 2 - recruiting, holding, concealing or harbouring a person who provides sexual services for consideration: 2 years, concurrent;
• Count 3 - receiving a material benefit from the sale of sexual services: 2 years concurrent;
• Count 4 - assault causing bodily harm: 1 year, concurrent;
• Count 5 – assault: 90 days, concurrent;
• Count 6 – assault: 90 days, concurrent; and
• Count 7 – forcible confinement: 1 year, concurrent.

[39] Mr. Donacien is to be credited 22 months for 446 days spent in presentence custody. The sentence that remains to be served is 38 months.

B. Restitution

[40] Mr. Donacien is ordered to pay restitution to C.C. in the amount of $13,010.00 by February 20, 2028.

C. Ancillary Orders

[41] Pursuant to s. 109 of the Criminal Code, there will be an order that Mr. Donacien be prohibited from possessing any firearm (including a prohibited firearm or restricted firearm), any crossbow, restricted weapon, ammunition, explosive substance, prohibited weapon, prohibited device and prohibited ammunition for life.

[42] Pursuant to s. 487.051(2) of the Criminal Code, Mr. Donacien is ordered to provide a sample of his DNA for inclusion in the national databank.

[43] Pursuant to s. 743.21 of the Criminal Code, Mr. Donacien is prohibited from communicating directly or indirectly with C.C. during the custodial portion of his sentence.

Justice P.A. Schreck

Released: June 20, 2024

Footnotes

COURT FILE NO.: CR-22-10000325 DATE: 20240620 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – JEAN EDY DONACIEN REASONS FOR SENTENCE P.A. Schreck J. Released: June 20, 2024

[1] An abbreviated version of these reasons was delivered orally in court on June 20, 2024. In the event of any inconsistency between those oral reasons and these written reasons, the written reasons should be taken as correct.

[2] R. v. Donacien, 2024 ONSC 1299.

[3] The printout from the Canadian Police Information Centre (“CPIC”), which is in French, states that the sentence was “60 mois 15 jours et 3 ans de probation (credit for l’equivalent de 45 jours presentencielle).” I am assuming that the number 60 is a typographical error as a sentence of 60 months and 15 days in addition to 45 days of presentence custody would not only be far in excess of what is usually imposed for a conviction for common assault, but would also be illegal as the maximum sentence for that offence is five years: Criminal Code, s. 266(a). Adding a probation order to a sentence of that length would also be illegal: Criminal Code, s. 731(1)(b).

[4] In my Reasons for Judgment, at para. 11, I erroneously describe this amount as being “approximately $15,000.” However, the sum of the amounts reflected in the records found in Exhibit 3 total $13,010.