Court File and Parties

COURT FILE NOs.: CR-23-40000477, CR 24-40000483 & CR 24-40000484 DATE: 20241122

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – EVEROY SWABY

Counsel: Monica Gharabaway, for the Crown Nicholas DeCock, for Mr. Swaby

HEARD: July 22 and October 4, 2024

Reasons for Sentence

R.F. GOLDSTEIN J.

[1] Mr. Swaby pleaded guilty to various offences involving human trafficking, drugs, and a firearm. On October 31, 2024 I read a summary of my reasons for sentence in court. What follows are my full reasons for sentence.

Facts

[2] Mr. Swaby met J.J. in February 2020. J.J. was working as an independent escort at the time. J.J. agreed to go into business with Mr. Swaby. He would take care of administrative details – arranging customers, booking hotel rooms, creating, and posting advertisements, providing protection – in exchange for a percentage of her earnings. Mr. Swaby used the term “party favours” in J.J.’s advertisements, meaning that customers could also purchase drugs. Mr. Swaby did sell drugs. He decided J.J.’s restrictions, and the prices to be charged by J.J. Mr. Swaby set a quota of $1500 per day for J.J. She worked long hours. Mr. Swaby decided when she could eat. He also provided her with alcohol and cocaine so that she could keep working. Mr. Swaby kept control over J.J. He would get mad if she left the room without his permission, and one time he grabbed her by the hair and threw her on the bed. Mr. Swaby took all the money she earned. She estimated that it amounted to about $15,000.00. J.J. eventually decided to leave Mr. Swaby. She suffered no repercussions.

[3] Mr. Swaby also worked with A.A.P. A.A.P. did escorting for Mr. Swaby in Toronto, Mississauga, and St. Catherines. He drove her to her appointments. Mr. Swaby prepared advertisements for A.A.P. using both fake pictures and sexualized real pictures. Mr. Swaby required A.A.P. to be responsive to messages from customers. If she did not respond quickly enough, or fell asleep instead of working, Mr. Swaby would become angry and threaten to come to her hotel room. He decided her hours and her restrictions. She had a quota of $1000 per day. Mr. Swaby became angry with her if she did not reach it. A.A.P. knew that Mr. Swaby had a drinking problem. He provided her with cocaine so that she could work. A.A.P. was also aware that Mr. Swaby had a gun. She was afraid of him. Mr. Swaby advertised through A.A.P’s escorting ads that “party favours” – drugs – were available. She was required to complete the drug transactions on his behalf. She was not permitted to leave the room except with his permission. He provided food, drinks, and other products. During the time that she worked for him she earned about $15,000. Mr. Swaby took all her earnings. A.A.P. eventually decided to leave Mr. Swaby. She suffered no repercussions.

[4] A.P. also worked with Mr. Swaby. Tragically, A.P. has since died. The Toronto Police learned of the relationship between Mr. Swaby and A.P. from a review of Mr. Swaby’s cell phone. The police found 36 escort advertisement photos of A.P. on Mr. Swaby’s phone. Mr. Swaby posted advertisements for A.P. and scheduled customers. He also listed “party favours” in her advertisements. He sold powder cocaine through A.P. to her customers. He provided her with cocaine as well.

[5] On November 18, 2021, the police executed a search warrant at 311-30 Livonia Place in Toronto. That was the apartment of his girlfriend, Coretea Anthony, and her 12-year-old son. The police found Mr. Swaby in the apartment and arrested him. They located several items in Mr. Swaby’s pants, including $810 in cash and a package containing crack cocaine. The total amount of the cocaine seized was 6.56 grams. The police also arrested Ms. Anthony, and she has faced charges.

[6] The police also found other baggies of powder and crack cocaine in Ms. Anthony’s apartment. The drugs belonged to Mr. Swaby. The police found a 9mm Luger firearm with a 10-round magazine on the couch. Mr. Swaby admitted to ownership of the firearm and has maintained from his arrest that Ms. Anthony had nothing to do with it. The police also seized 28 rounds of 9mm ammunition – including some hollow-point rounds. Mr. Swaby acknowledged that he possessed the cocaine for the purpose of trafficking. Mr. Swaby was on a weapons prohibition at the time.

The Guilty Plea

[7] The Crown filed an indictment containing 38 counts. On July 22, 2024, Mr. Swaby pleaded guilty to the following 12 offences:

• Count 1 – Human trafficking in relation to A.A.P. contrary to s. 279.01(1) of the Criminal Code between October 31, 2017, and March 31, 2018.
• Count 2 – Receiving a material benefit from human trafficking, contrary to s. 279.02(1) of the Criminal Code between October 31, 2017 and March 31, 2018.
• Count 3 – Advertising sexual services contrary to s. 286.4 of the Criminal Code between October 31, 2017, and March 31, 2018.
• Count 9 – Advertise sexual services contrary to s. 286.4 of the Criminal Code between November 1, 2017, and June 19, 2021.
• Count 11 – Receiving a material benefit in relation to sexual services, contrary to s. 286.2(1) of the Criminal Code between November 1, 2017, and June 18, 2021.
• Count 14 – Human trafficking in relation J.J. contrary to s. 279.01(1) of the Criminal Code between February 1, 2020, and July 29, 2020.
• Count 15 – Receiving a material benefit from human trafficking, contrary to s. 279.02(1) of the Criminal Code between February 1, 2020, and July 29, 2020.
• Count 17 – Advertising sexual services contrary to s. 286.4 of the Criminal Code between February 1, 2020, and November 17, 2021.
• Count 21 – Possession of a loaded prohibited firearm contrary to s. 95(1) of the Criminal Code on November 18, 2021.
• Count 26 – Possession of cocaine for the purpose of trafficking contrary to s. 5(2) Controlled Drugs and Substances Act on November 18, 2021.
• Count 28 - Trafficking Cocaine – s. 5(2) CDSA contrary to s. 5(2) Controlled Drugs and Substances Act between November 1, 2017, and March 31, 2018.
• Count 31 – Possession of a firearm in breach of a weapons prohibition order contrary to s. 117.01(1) of the Criminal Code on November 18, 2021.

[8] Counts 1, 2, and 3 related to human trafficking of and sexual services provided by A.A.P. Counts 9 and 11 related to sexual services provided by A.P. Counts 14, 15, and 17 related to human trafficking and sexual services provided by J.J. Counts 21, 26, and 31 related to the firearm and the cocaine seized by the police during the execution of the search warrant on November 18, 2021. Count 28 related to the sale of cocaine by Mr. Swaby.

Impact On The Victims

[9] Victim impact statements were provided by the following people:

• A.A.P.;
• J.J.;
• T.P., A.P.’s mother;
• F.H., A.P.’s grandmother;
• Three of A.P.’s cousins; and,
• A.P.’s children.

[10] A.A.P. indicated in her victim impact statement that prior to becoming involved with the sex trade she lived a normal life. She had a job and had plans to further her education. Mr. Swaby, she says, introduced her to cocaine. She has struggled with depression, trust issues, and substance addiction issues. A.A.P. also indicated that Mr. Swaby took all her money, leaving her financially unstable and unable to pursue post-secondary education. These issues, as well as the fear that Mr. Swaby might seek retribution have all contributed to the significant toll on her mental health. A.A.P.’s involvement with Mr. Swaby has deeply impacted her.

[11] J.J., in her victim impact statement, also spoke of how her involvement with Mr. Swaby has had a deep and long-lasting impact on her. She believed that she and Mr. Swaby were in a genuine relationship. Instead, she indicated, he manipulated her and used her. Prior to her involvement in the sex industry J.J. had been sober, was working, and had finished college. Mr. Swaby, she says, introduced her to sex work and provided her with alcohol and drugs. (I note that the defence objects to the statement that Mr. Swaby “showed her the ropes”. The agreed statement of facts indicates that she had been an independent sex worker prior to meeting him. To be clear, where an assertion in a victim impact statement is contradicted the agreed statement of facts, I do not take it into account in sentencing Mr. Swaby.) J.J. indicated that he used her, broke her heart, helped to destroy her relationships, and contributed towards her living in a homeless shelter for three years. J.J. has had her sense of trust destroyed, has been unable to hold a job, and is still dealing with her mental health issues although she has been going to counselling and has managed to stay sober.

[12] A.P.’s mother, T.P., described A.P. as a happy, witty young lady who was full of life and a good mother to her three children. Her behaviour changed. A.P. became depressed and feared for her safety. A.P.’s struggles had a significant effect on T.P. A.P.’s three children also filed victim impact statements. They are heartbreaking. The children all wish she was still present in their lives. They long for her attention, her kindness, her presence. F.H., A.P.’s grandmother, filed a victim impact statement in which she described the impact on her – including lost sleep, and watching her great-grandchildren not have their mother. Other family members filed similar victim impact statements.

[13] I certainly understand the pain and the anguish that A.P.’s family members feel. I also understand that they want to see Mr. Swaby punished for, as they put it, taking A.P. from them. It is understandable that they should feel that way. There is no doubt that Mr. Swaby exploited A.P. He provided her with drugs. He manipulated her through her drug addiction. There is no evidence, however, that Mr. Swaby was responsible for her tragic death. I do not consider A.P.’s death to be an aggravating factor on sentencing.

Mr. Swaby’s Background:

[14] A pre-sentence report was prepared for the court.

[15] Mr. Swaby is now 38 years old. He was born in Jamaica and came to Canada in 1992 at the age of 6. He has siblings in the Greater Toronto Area and in Jamaica – one of whom was unfortunately killed by gun violence. Mr. Swaby’s parents were young – his mother was 17 when he was born. She immigrated to Canada when he was 1. He lived with his maternal grandparents until his mother brought him to Canada five years later. He said that life with his grandparents was rough. He said that he endured frequent beatings. He found his father to be distant and difficult to communicate with. His relationship with both of his parents has strengthened over the years. His father is supportive but has tried, and unfortunately failed, to get Mr. Swaby to avoid mistakes. None of the members of Mr. Swaby’s family or extended family are involved with the criminal justice system. He comes from a pro-social family background. His parents own and operate a barber shop.

[16] After he came to Canada, Mr. Swaby resided with his parents and siblings – first in an apartment and later in a townhouse purchased by his parents. At age 18 he moved in with his uncle and girlfriend. He agreed that he was very rebellious at that time. He says that he experienced a gunpoint robbery and moved out of his area. He began to accumulate criminal convictions. He began to hang out with people involved in a criminal lifestyle. One of his friends was killed.

[17] Mr. Swaby has completed high school. He said that he was suspended once in elementary school, but never in high school. He generally did well in school, aside from failing math in Grade 11. He reported that his interactions with teachers were generally positive. In terms of employment, Mr. Swaby has had occasional summer and part-time jobs. In 2013 he worked at his parent’s barber shop as a barber but went on social assistance in 2017 and began to receive ODSP at age 18 due to mental health issues.

[18] Mr. Swaby has significant substance abuse issues. More particularly, Mr. Swaby has a problem with alcohol. Some of the victims in this case have described him as an alcoholic. He was using alcohol and Xanax. He also began to traffic in controlled substances. As he put it, if he had not been selling, he would not have met the victims in this case. Mr. Swaby did acknowledge to the PSR writer that he has a problem with alcohol. He also stated to the PSR writer:

“… everything stems from the drugs. I plead so I do take responsibility for my actions, so I’m sorry I took advantage of these females. I was dependent on them. I’m very responsible; this is not the life I want to live. I needed money, so I was hustling. I contacted these females; I was selling cocaine, and from there, I became dependent on them, I was using Xanax, and I was out of it.” This officer enquired as to whether the subject felt any regret as regards the offences and he noted, “I’m very sorry. I regret my actions to the victims; I hope they can move on. Any counseling, I’m willing to take.”

[19] Mr. Swaby also admitted to the PSR writer that he had no need to have a firearm. He did describe being around many violent situations, including robberies and shootings.

[20] Mr. Swaby has a significant criminal record. All of the entries on his record are adult convictions. In 2008 Mr. Swaby was convicted of theft under $5000.00. In 2009 he was convicted of aggravated assault and possession of a prohibited or restricted firearm. He was sentenced to 8 years for the aggravated assault and 1 year consecutive for possession of the firearm. In that offence, Mr. Swaby shot the victim in the stomach after a confrontation. In 2012 Mr. Swaby was sentenced to a further 4 months consecutive for possession of a schedule II drug for the purpose of trafficking. In 2019 he started accumulating impaired driving offences. In 2019 he was convicted of “over 80” for which he received a fine and a driving prohibition. Later in 2019 he was convicted of impaired driving, fail to comply with a recognizance, and operating a conveyance while prohibited from doing so. He received suspended sentences on each (in light of pre-sentence custody) and a further three-year driving prohibition.

[21] Mr. Swaby hand-wrote a lengthy letter to the Court. In it he apologized to A.A.P. and J.J. In his letter he expressed the hope that God will watch over A.P.’s children and that He grants her a peaceful repose. He also apologized to Ms. Anthony, his co-accused, and her son. He apologized to them for, as he put it, putting them through the mud and causing them so much trouble. Finally, he apologized to his family for all the hurt, pain, and stress he has caused them. He thanked them for continuing to support him.

[22] Mr. Swaby’s letter then delved into what he called his journey of the last three years at the Toronto South Detention Centre. He said that the letter was not meant to be a grievance, but rather an insight into how his time in jail has affected him. That time included lockdowns due to the COVID pandemic. He described being locked down and under droplet protection for 2-3 weeks. He had felt isolated and had mental breakdowns due to the isolation. Visits were cancelled for about four months. He described some inhumane conditions at the detention centre. These conditions have been mentioned by other judges in other judgements, and are, unfortunately, well known. Mr. Swaby also described a high level of gang activity and violence in the jail. The violence caused him to become hyper-aware, anxious, and depressed. His remedy was to attend frequent chapel services and programming. In his letter Mr. Swaby also acknowledged his problem with drugs and alcohol. He understands that he must acknowledge the problem to deal with it. It caused him to live a life of partying that led to women, sex, and more drugs. He expressed the hope that he can be a better man.

[23] Mr. Swaby also attached a hand-written “declaration of change” to his letter. In it he said that going to jail was a catalyst for change for him. He states in the declaration that he is grateful in some ways for jail. He uses the metaphor of shackles. He states, essentially, that he exchanged the shackles of drug and alcohol addiction for the physical shackles of jail. This has given him insight into his problems and, he hopes, the strength to change.

Positions Of The Crown And The Defence

[24] The Crown’s position is that I should sentence Mr. Swaby to a global term of imprisonment of 14 years imprisonment less pre-sentence custody. As well, I should impose a DNA order, a s. 109 order for life, and a restitution order of $15,000.00 per complainant for a total of $30,000.00. The Crown also seeks forfeiture of the seized firearm, $810.00 found on Mr. Swaby on arrest, and his phone.

[25] Ms. Gharabaway relies on R. v. A.E., 2018 ONSC 471 as authority for the assertion that the sentencing range in human trafficking cases is 4-8 years. A.E. is also the case that is closest to the facts to this one. A.E. trafficked and abused two women between 2011 and 2015. He sold drugs. He possessed a loaded, prohibited firearm. He was convicted after a trial of human trafficking in relation to each complainant; the criminal harassment of one and the assault of the other; possession of cocaine for the purpose of trafficking; and offences in relation to the firearm. He did not procure the complainants as each had worked as an independent escort and then approached him. He had a criminal record that included a conviction for second degree murder as a young offender, but he had made rehabilitative strides. Boswell J. sentenced the offender to a global sentence of ten years, after which he deducted four years of credit for pre-sentence custody.

[26] In R. v. Dak, an unreported decision of Justice Kennedy of the Superior Court in Kitchener dated December 12, 2023, the offender pleaded guilty to possession for a loaded restricted firearm and possession of cocaine for the purpose of trafficking. He went to trial on other charges and was convicted of human trafficking and threatening in relation to one complainant, his partner. Mr. Dak was a youthful first offender. His personal circumstances were challenging. His mother died when he was young and his father abandoned the family. He lived with his grandmother. He did attend college. He introduced his partner to sex work. He used emotional manipulation and physical violence at least once to enforce compliance. He kept all her earnings and controlled her work in the sex trade for about 9 months. Justice Kennedy, after reviewing the cases, found that 4-8 years is the range for human trafficking offences. Justice Kennedy would have sentenced Mr. Dak to 5 ½ years on the human trafficking offence alone prior to accounting for totality. Justice Kennedy would have sentenced Mr. Dak to a global sentence of 12 years but after accounting for totality imposed a global sentence of 9 years before reductions for pre-sentence custody. He imposed a restitution order of about $48,000 and gave Mr. Dak 10 years to pay after release from custody.

[27] The Crown also points to R. v. Downey, 2023 ONSC 3776 where the offender was convicted on multiple human trafficking related counts in relation to four complainants. He manipulated and was violent towards them, controlled their movements, and required them to be available to work 24/7. The offender took all of their earnings. He had a lengthy criminal record. He was unrepentant and refused to participate in a pre-sentence report. Somji J. sentenced him to a global sentence of 15 years.

[28] The defence position is that I should sentence Mr. Swaby to a global sentence of nine years in the penitentiary. Mr. DeCock has no opposition to any of the ancillary orders, other than the restitution order. He argues that Mr. Swaby is unable to pay restitution, given that he is currently incarcerated and on ODSP.

[29] Mr. DeCock filed several cases. I have reviewed them all but need only mention a few:

[30] In R. v. Deiaco, 2019 ONCA 12, the offender pleaded guilty to human trafficking. The complainant was addicted to drugs. She escaped after five days of sex work. He then abducted her and placed her in the trunk of a car before the police found her. The sentencing judge sentenced him to eight years. It appears he had no criminal record. The Court of Appeal upheld an 8-year sentence.

[31] In R. v. Senouri Abedini, 2020 ONCA 520, the offender was convicted of various human trafficking offences related to two complainants. One of the complainants was under 18 years old. The trial judge found that the offender orchestrated a sex trade business and enticed vulnerable young women. She exercised strict and abusive control over the victims. The Court of Appeal upheld an 8.5 year sentence.

[32] In R. v. H-O., 2022 ONSC 4900, the offender pleaded guilty to six human-trafficking and sexual services offences in relation to three complainants. One of those complainants was under 18 years old. The Crown sought a sentence of ten years. The defence sought a sentence of between five and six years. The offender exerted a great deal of control over the young complainants. He provided them with drugs. The exploitive conduct was of a relatively lengthy duration, lasting months. He used violence and intimidation to control the victims. He did, however, plead guilty and was remorseful. He had struggled with mental health and trauma issues. The sentencing judge would have imposed a sentence of 8 ½ years but after taking into account harsh conditions of custody imposed a sentence of 7 years, less Summers credit.

[33] In R. v. Musara, 2022 ONSC 2835 the offender trafficked a vulnerable 18-year old over a 10-month period. He was found guilty of human trafficking and associated sexual-services offences, and possession of an illegal handgun. He introduced the victim into sex work and got her addicted to cocaine, using that addiction to manipulate her. The victim received very little of her earnings due to her drug addiction. The offender threatened to kill her if she left him. Nakatsuru J. sentenced the offender to 6 years and 8 months.

[34] After reviewing the cases, I adopt the following observation of Justice Boswell at para. 46 of A.E. about the range of sentence for human trafficking offences:

Having canvassed the authorities provided to me by counsel, I conclude that it is, as I noted, extremely difficult to define a usual range for the offence of human trafficking. Again, this is largely due to the variety of circumstances in which the offence may be committed. The yardsticks are far from settled, particularly in view of the imposition in 2014 of mandatory minimum sentences. It would appear that prior to 2014, the range was probably two or three years at the bottom end to six or seven years at the top end, depending of course on the aggravating and mitigating circumstances of the case. Since 2014, the floor has been elevated and I would say, provisionally, that the usual range appears now to be roughly four to eight years, again depending on the aggravating and mitigating circumstances present.

[35] I agree with Justice Boswell that the range of sentence for human trafficking offences is four to eight years. All human trafficking is predatory, controlling, and exploitive. The greater the amount of exploitation, the higher the sentence should be.

[36] I agree that A.E. and Dak are the cases most on point. No case is identical but these two cases have important similarities. The offender in A.E. was convicted of murder as a youth; Mr. Swaby was convicted of aggravated assault after shooting someone. Dak and A.E. both had more troubled upbringings than Mr. Swaby. They all involved human trafficking, guns, and drugs.

[37] I would distinguish Deiaco on the basis that it involved only one complainant for a short time, although of course there were other aggravating factors not present here, including abducting the complainant and locking her in a trunk.

[38] Both counsel also filed cases dealing with firearms and drug trafficking, but the range of sentence for those offences is more settled.

Mitigating And Aggravating Factors

[39] The most important mitigating factor in this case is the guilty plea. Mr. Swaby pleaded guilty, took responsibility for his actions, and has apologized to the victims and his family. It is also important that by pleading guilty, Mr. Swaby spared the victims from cross-examination. Victims usually find cross-examination to be an ordeal, and many have commented that cross-examination can even be worse than the actual offence. Re-traumatization through cross-examination is a something very real – anyone who has spent time in the criminal courts has seen it. Sparing the victims that experience obviously carries weight.

[40] I also find it mitigating that Mr. Swaby has shown insight into his behaviour. He understands that he has grievously harmed others. He has also shown insight into his substance abuse problems – problems which have been described by the victims. He has attended Alcoholics Anonymous while incarcerated.

[41] Mr. Swaby has worked hard while in custody to take advantage of opportunities for growth and learning.

[42] Mr. Swaby also filed an affidavit where he described the conditions of custody at the Toronto South. He described the conditions under which he dealt with the Covid 19 pandemic. For example, he did not report symptoms of Covid one time so that his entire range would not be locked down. The conditions were very difficult in the institution. There were no visits from December 2021 to April 2022. Mr. Swaby described the conditions under lockdown, and the generally unhealthy and unhygienic conditions in the jail. Many of his experiences – such as not receiving fresh laundry or cleaning supplies – have been echoed in other cases in this court. Mr. Swaby also described witnessing the traumatic death of a friend in custody from an overdose.

[43] It is mitigating that Mr. Swaby has the support of his family and friends. I have reviewed letters from the following people:

• Tiffany Deacon, a family friend, has remained supportive. She discussed some of Mr. Swaby’s life goals, which include going back to work in his parent’s barber shop and working in personal training.
• Cheyenne Salmon, of the Waterfront Neighbourhood Centre, has worked with Mr. Swaby for many years. She remains supportive and believes that he has the potential to successfully reintegrate after accessing guidance and counselling.
• Madia West-Swaby, Mr. Swaby’s mother, is also supportive and believes that he can overcome his addictions and fully re-integrate into society. There is a job waiting for him at the barber shop when he is finally released.
• Devonte Swaby, Mr. Swaby’s brother, also wrote a letter supporting him. Devonte is aware of the seriousness of the charges but believes his brother is a loving, caring person. He noted that Mr. Swaby takes responsibility for his offence. They have discussed the release plan. Mr. Swaby, he says, wants to turn a new leaf and be a productive member of society. Devonte outlined some of the medical issues that have been faced by members of his family while he has been incarcerated. This has been difficult on the family.
• Reverend Ansford Pearson is the duty chaplain at the Toronto South Detention Centre. He has worked with Mr. Swaby. He stated that Mr. Swaby is very committed to his faith and never misses a chapel service. He has enjoyed working with Mr. Swaby. He notes that Mr. Swaby has demonstrated improvement in his religious understanding and development.

[44] Mr. Swaby also provided several certificates of completion of courses that he has taken in custody, including those dealing with substance abuse, life skills, and being an effective father.

[45] Mr. DeCock asked that I consider the Morris factors as well: R. v. Morris, 2021 ONCA 680. Mr. Swaby is a Black man. No doubt he has endured institutional and even blatant racism. Morris teaches, however, that there must be some connection between the commission of the offence and the factors. Respectfully, it is difficult for me to see the connection in this case. Mr. Swaby did not suggest that his criminal behaviour was connected in any way. Indeed, I think it is to his credit that he takes responsibility and does not blame anyone but himself for his mistakes. He has seen violence and had some instability in his younger years, but he was raised in an intact family where his parents ran a small business. Judging by the fact that his siblings have led pro-social lives, his parents provided him with love, structure, and discipline. I suspect his parents are of relatively modest means, but they also provided him with financial security. I do not doubt that they did their best for him.

[46] There are some significant aggravating factors in this case, which I now turn to. The nature of the offences is very aggravating. There are obviously a range of behaviours encompassed by human trafficking and prostitution related offences. Some behaviours are more malignant than others. These offences are particularly bad. It is highly aggravating that Mr. Swaby used drugs and alcohol to manipulate each of A.P., A.A.P., and J.J. He knew that each victim had a substance abuse issue, and he took advantage of it. A.P. and J.J. each worked for him for significant periods of time. Mr. Swaby took virtually all their earnings. He controlled their movements, when they could eat, when they could work, and the sexual services that they were required to perform.

[47] I find it particularly aggravating that that Mr. Swaby used all three victims to sell drugs, or “party favours” as they were described in the advertisements. As sex workers, J.J., A.P., and A.A.P. were immune from prosecution for advertising or providing their own sexual services: Criminal Code, s. 286.5. They were not, of course, immune from drug trafficking charges. By selling drugs through each of the victims, Mr. Swaby exposed them to the danger of robberies by customers or people pretending to be customers, who would have known that relatively defenceless women were in possession of drugs. Mr. Swaby also exposed the victims to the danger of arrest and prosecution for drug trafficking.

[48] It is aggravating that Mr. Swaby used violence, or the threat of violence, to keep the victims in line. J.J. described a violent incident that included hair pulling. A.A.P. knew that Mr. Swaby had a gun, which frightened her. Of course, Mr. Swaby did have a gun – one was found when a search warrant was executed.

[49] These offences had a significant impact on J.J. and A.A.P. I infer that they also had a significant impact on A.P. The impact on the victim is a statutory aggravating factor: Criminal Code, s. 718.2(iii.1).

[50] Mr. Swaby’s possession of the firearm in proximity drugs is aggravating. I find that Mr. Swaby used the firearm as a tool of the trade – whether that trade was human trafficking or drug trafficking.

[51] I also note that Mr. Swaby was subject to a weapons prohibition at the time. Since I will be sentencing him separately on the breach of the weapons prohibition, I will not consider as an aggravating factor when I sentence Mr. Swaby for possession of the firearm. What is extremely aggravating, however, is that he kept the firearm and ammunition in an apartment with a child. He made no real effort to keep it in a place where his girlfriend’s son could not easily find it. Rather, it was on a couch with a loaded magazine. Imagine the consequences if Ms. Anthony’s son had found the gun and started to play with it. The consequences could have been catastrophic.

The Restitution Order

[52] I recently considered this issue in R. v. Nygard, 2024 ONSC 4837. In that case I declined to make a freestanding restitution order as the amounts were not readily ascertainable.

[53] Subsection 738(1)(b) of the Criminal Code states that where an offender is convicted of an offence a court may order restitution:

738(1)(b) … in the case of bodily or psychological harm to any person as a result of the commission of the offence… by paying to the person an amount not exceeding all pecuniary damages incurred as a result of the harm, including loss of income or support, if the amount is readily ascertainable…

[54] Based on my interpretation of s. 738(1)(b) of the Criminal Code there are three elements that must be met before I can order restitution:

• There must be bodily or psychological harm to the victim;
• The amount must not exceed all pecuniary damages including loss of income or support; and,
• The amount must be readily ascertainable.

[55] The offender’s ability to pay is irrelevant. A victim may complete Form 34.1 setting out the particulars of a victim’s pecuniary loss: Criminal Code, s. 737.1(4).

[56] There is no doubt that each victim suffered psychological harm. There is also no doubt that the amount sought by the Crown would not exceed all pecuniary damages.

[57] The Crown suggests that a restitution order in the amount of $30,000 would be appropriate. She suggests $15,000 per living victim. But are the amounts readily ascertainable? Unlike in Nygard, I find that the amounts in this case are.

[58] It is an admitted fact in this case that the victims earned money and Mr. Swaby kept all of it. According to the Agreed Statement of Facts J.J. was required to earn $1500 per day. She worked five days per week. That amounts to $7500 per week. She escorted for Mr. Swaby for about two months in 2020. The total amounts to $30,000.00. I find that the $15,000 requested by the Crown is a conservative estimate.

[59] A.A.P. was required to earn $1000 per day. According to the Agreed Statement of Facts A.A.P. earned about $15,000 while she escorted for Mr. Swaby. The amounts are sufficiently grounded in the evidence for them to be readily ascertainable. I therefore find that a freestanding restitution order is appropriate.

[60] After hearing further submissions from counsel, I granted 10 years from his release from custody to make payment, with yearly installments.

[61] The terms of the restitution order will be as follows:

• The restitution order will be in the amount of $30,000, with $10,000 to each of J.J. and A.A.P.
• Mr. Swaby will have ten years to pay.
• Mr. Swaby will pay $1500 per annum. The first payment will be due on the first anniversary of his release from custody. Subsequent installments of $1500 per annum will be due on each subsequent anniversary of his release from custody.
• On the tenth anniversary, in addition to the $1500 payment, the remainder of $15,000.00 will be due as a lump sum.

[62] If Mr. Swaby is unable to make the final lump-sum payment, he can apply for an extension of time from the court.

Principles Of Sentencing And Sentence Imposed:

[63] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.1. Other sentencing principles include that sentences should be raised or lowered to account for aggravating and mitigating factors; and that sentences should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. While sentences for unrelated offences should generally be consecutive, the totality principle requires that a global sentence not be so crushing that it destroys any hope of rehabilitation.

[64] The primary sentencing principles in cases of human trafficking are denunciation and deterrence. Human trafficking and pimping are abhorrent crimes. They involve exploiting and profiting from the intimate sexual activities of other people – other people who are usually vulnerable, as these victims were.

[65] Sentencing is often described as the most difficult part of a judge’s job. I agree with that. This case is an example of the difficulty of sentencing people. On the one hand, Mr. Swaby committed a very serious set of crimes over a lengthy period. He damaged many people. He sold drugs. He possessed a firearm while he was subject to a prohibition order. On the other hand, over the course of 3 years he appears to have gained insight and made strides towards rehabilitation. He has apologized to the victims and to his family. Balancing an appropriately denunciatory sentence with the goal of rehabilitation is my challenging task.

[66] Several cases have considered the factors that a sentencing court should consider in human trafficking and prostitution cases. See, for example, R. v. Lopez, 2018 ONSC 4749 at para. 64. Justice Boswell set out a list of factors in R. v. A.E., supra, at para. 56 taken from the Alberta Court of Appeal’s decision in R. v. Tang, 1997 ABCA 174, [1997] A.J. No. 460 (also cited in R. v. Lopez):

• The degree of coercion or control imposed by the pimp on the sex worker’s activities;
• The amount of money received by the pimp and the extent to which the pimp allowed the sex workers to retain their earnings;
• The age of the prostitutes and their numbers;
• Any special vulnerability on the part of the prostitutes;
• The working conditions in which the prostitutes were expected or encouraged to operate, including their physical surroundings in terms of soliciting customers and servicing customers, and safety concerns, in addition to whether appropriate health safeguards were taken;
• The degree of planning and sophistication, including whether the pimp was working in concert with others;
• The size of the pimp's operations, including the numbers of customers the prostitutes were expected to service;
• The duration of the pimp's exploitative conduct;
• The degree of violence, if any, apart from that inherent in the pimp's parasitic activities;
• The extent to which inducements such as drugs or alcohol were employed by the pimp;
• The effect on the prostitutes of the pimp's exploitation; and,
• The extent to which the pimp demanded or compelled sexual favours for himself from the prostitutes.

[67] Justice Boswell, quoting Justice Hill’s decision in R. v. Miller, [1997] O.J. No. 3911, included other factors:

• The age of the customers attracted to the bawdy-house operation;
• Steps taken by the accused to evade detection by authorities; and,
• Attempts by the accused to prevent a prostitute from leaving his employ.

[68] When I apply these factors, I make the following findings:

• Mr. Swaby exercised a high degree of coercion and control over the victims;
• He kept all their earnings;
• The victims were expected to service a large number of customers;
• Mr. Swaby imposed quotas on the victims;
• Mr. Swaby used violence or implied violence;
• Mr. Swaby used drugs and alcohol to control the victims.

[69] Prior to applying the principle of totality, the offences in relation to A.A.P. and J.J. each merit a collective sentence of 5 to 6 years in the penitentiary; the offences in relation to A.P. merit a sentence of 3 to 4 years in the penitentiary; the gun possession offence merits a sentence in the range of 3 to 4 years; the drug possession and trafficking offences merit a sentence in the range of 1 year; and the weapons prohibition offence merits a sentence of six months to 1 year. Thus, before applying the principle of totality, these offences would merit a sentence in the range of 17 ½ to 22 years. Such a sentence would grossly violate the principle of totality, as Crown counsel recognized by recommending a global sentence of 14 years.

[70] I would have sentenced Mr. Swaby to a global sentence in the range of 12 to 14 years in the penitentiary but for the conditions of custody over three years, the principle of totality and, of course, the guilty plea. When I consider all the sentencing principles, including denunciation, deterrence, rehabilitation, totality, and the mitigating and aggravating circumstances, I sentence Mr. Swaby to a global sentence of 11 years.

[71] Mr. Swaby has been in custody since November 8, 2021. As of the date of sentencing, he has spent 1089 days in custody, or 35 months and 24 days – almost three years. At 1.5:1 that works out 1633.5 days or about 54 ½ months, or just under 4 ½ years: Criminal Code, s. 719(3.1); R. v. Summers, 2014 SCC 26. I will credit him with 4 ½ years in order to simplify the math and also to give him a slight break. Mr. Swaby therefore still has 6 ½ years to serve.

[72] Thus, the warrant of committal will read as follows:

[73] Global sentence of 11 years less presentence custody, with a recommendation that Mr. Swaby remain in a penitentiary in Southern Ontario, if possible. There will also be a note on the warrant of committal that Mr. Swaby would benefit from continued counselling, rehabilitation, and therapy.

• Count 1 – Human trafficking in relation to A.A.P. contrary to s. 279.01(1) of the Criminal Code between October 31, 2017, and March 31, 2018: 2 ½ years, with credit for 2 ½ years, time served.
• Count 2 – Receiving a material benefit from human trafficking, contrary to s. 279.02(1) of the Criminal Code between October 31, 2017 and March 31, 2018: 2 ½ years concurrent to Count 1, with credit for 2 ½ years, time served.
• Count 3 – Advertising sexual services contrary to s. 286.4 of the Criminal Code between October 31, 2017, and March 31, 2018: 2 ½ years concurrent to Count 1, with credit for 2 ½ years, time served.
• Count 9 – Advertise sexual services contrary to s. 286.4 of the Criminal Code between November 1, 2017, and June 19, 2021: 2 years consecutive to Count 1, with credit for 2 years, time served.
• Count 11 – Receiving a material benefit in relation to sexual services, contrary to s. 286.2(1) of the Criminal Code between November 1, 2017, and June 18, 2021: 2 years consecutive to Count 1, and concurrent to Count 9, with credit for 2 years, time served.
• Count 14 – Human trafficking in relation J.J. contrary to s. 279.01(1) of the Criminal Code between February 1, 2020, and July 29, 2020: 2 ½ years consecutive to Count 9.
• Count 15 – Receiving a material benefit from human trafficking, contrary to s. 279.02(1) of the Criminal Code between February 1, 2020, and July 29, 2020: 2 ½ years consecutive to Count 9, and concurrent to Count 14.
• Count 17 – Advertising sexual services contrary to s. 286.4 of the Criminal Code between February 1, 2020, and November 17, 2021: 2 ½ years consecutive to Count 9, and concurrent to Count 14.
• Count 21 – Possession of a loaded prohibited firearm contrary to s. 95(1) of the Criminal Code on November 18, 2021: 3 years consecutive to Count 14.
• Count 26 – Possession of cocaine for the purpose of trafficking contrary to s. 5(2) Controlled Drugs and Substances Act on November 18, 2021: 6 months consecutive to Count 21.
• Count 28 - Trafficking Cocaine – s. 5(2) CDSA contrary to s. 5(2) Controlled Drugs and Substances Act between November 1, 2017, and March 31, 2018: 6 months consecutive to Count 21, and concurrent to Count 26.
• Count 31 – Possession of a firearm in breach of a weapons prohibition order contrary to s. 117.01(1) of the Criminal Code on November 18, 2021: 6 months consecutive to Count 26.

[74] There will be a DNA order. Human trafficking is a secondary designated offence. In my view it is appropriate in this case. There will be a s. 109 order for life. There will also be a freestanding restitution order in the amount of $30,000 in favour of A.A.P. and J.J. for $15,000 each. The seized firearm, the $810.00 found on Mr. Swaby on arrest, and his phone are all ordered forfeited.

R.F. Goldstein J. Released: November 22, 2024