COURT FILE NO.: CR-23-9 DATE: 20240924
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – JOEL RAMOCAN Defendant
COUNSEL: H. Palin and H. Donkers, for the Crown I.M. Owoh, for the Defendant
HEARD: May 3rd and 24th, August 6th, 2024
REASONS FOR JUDGMENT
CARNEGIE J. (ORALLY)
[1] Mr. Ramocan has pled guilty to one global count of procuring prostitution, involving two adult complainants, K.D. and A.S., contrary to s. 286.3(1) of the Criminal Code.
[2] While his conduct was relatively narrow, the Crown and defence rely upon his party liability as he assisted the principal offender in recruiting and carrying out a more profound human trafficking operation with two of five ultimate victims. He did not engage in coercive or violent conduct, though he was present on one occasion for threats. What is clear, however, is his awareness of the broader scope of the principal’s prostitution related exploitative intentions and his willingness, although limited, in assisting with its execution.
[3] Here, I must craft a proportional sentence for assisting in the procurement of two of these victims. While they became the subject of the principal’s trafficking efforts, Mr. Ramocan’s liability, on a party basis, is limited to procuring prostitution. Therefore, this sentencing must highlight the divide between procuring prostitution and human trafficking while expressing the community’s revulsion at the commodification of sexual services and the resulting harm that it causes these victims and the community at large.
Factual background
[4] The parties filed an Agreed Statement of Facts, Exhibit 1, outlining the global circumstances for this offence narrative, including Mr. Ramocan’s distinct involvement, as well as background information respecting the parties involved.
Circumstances of the Offence
[5] Mr. Ramocan was a longtime friend of J.H., the principal offender respecting this trafficking/prostitution offence narrative. Between 2016 and 2020, J.H. trafficked, or ‘pimped’, 5 victims B.S., K.D., A.H., A.R. and A.S. into the sale of sexual services for his benefit. He attempted to have A.B. work for him as well and used complainant R.R. to assist him in trafficking complainant B.S.
[6] Mr. Ramocan’s assistance to J.H. was narrower. Specifically, he engaged in procuring complainants K.D. and A.S. into the sale of sexual services, acting as a party by aiding J.H.’s intended control over them.
[7] In particular, on September 2, 2018, J.H. had recruited and instructed K.D., 18 years of age, to attend the White Oaks Mall in London, Ontario, where she would meet his friend, Mr. Ramocan. She was instructed to meet him at the lingerie store, Victoria’s Secret, and to pick out an outfit to wear. K.D. complied and met Mr. Ramocan as directed and lingerie was purchased. K.D. now realized that she was expected to perform sexual services. She then accompanied Mr. Ramocan to a motel where he paid for a room for her to use to provide sexual services. He took photos of K.D. to facilitate an advertisement. She did not like the results and took her own photographs. These were then sent to J.H. who posted an advertisement for the sale of K.D.’s sexual services on the website ‘Leolist’. Mr. Ramocan then left the room allowing K.D. to perform as intended. This was the first time K.D. provided sexual services for consideration but continued to work for J.H. until March 2020.
[8] Thereafter, K.D. returned to London to provide service “in-calls”. On one occasion, she fell victim to a robbery while providing sexual services. She then travelled to Sudbury to stay with J.H. and take a week off. Then, J.H. and Mr. Ramocan transported K.D. to a Sudbury hotel for more service “in-calls”. Afterwards, when she delivered the money to J.H., she was confronted about having sexual relations with Mr. Ramocan. She was told that if she wanted to stay with J.H., she had to discontinue relations with Mr. Ramocan.
[9] Over the course of her prostitution, J.H. would threaten K.D. not to disobey him. On one occasion, with Mr. Ramocan present, J.H. became upset with her talking on her phone to a female friend. He threatened that he would have Mr. Ramocan take her to the woods and shoot her and that no one would find her body. K.D. took this threat seriously. Mr. Ramocan was present and remained silent.
[10] With respect to victim A.S., a young 22-year-old Indigenous woman, on March 7, 2020, Mr. Ramocan arranged for her to go to Toronto and work for J.H. He had briefly dated her and lived with her and her mother for a long time. In March of 2020, she lost her children to foster care. She wanted a fresh start and to move somewhere new. She received an e-transfer from J.H. to fund her Greyhound bus trip from Sudbury to Toronto. J.H. then arranged for Mr. Ramocan to drive A.S. to the bank to withdraw the money and then to the bus station for the trip to Toronto. Their joint attendance at the bank was caught on video surveillance.
[11] As part of the ultimate police investigation, a forensic accounting analysis revealed that K.D. had e-transferred $3,770 to two of Mr. Ramocan’s family members during the period of time she was being trafficked. J.H.’s mother, a fellow co-accused, also transferred money, $800, to one of Mr. Ramocan’s family members. The extent to which he benefited, directly or indirectly, from these transfers is uncertain.
Circumstances of the Offender
[12] While I do not have the benefit of a pre-sentence report, counsel has provided me a summary of Mr. Ramocan’s background. He is 32 years of age. He has no dependants but supports his girlfriend and her child when able. He was born in Etobicoke and raised largely in Milton, Ontario. He was raised by a single mother and has 5 siblings (4 sisters, 1 brother). His father was not involved in his life since childhood as a result of violence in the home and resulting criminal justice system related incarceration. As a result, I am advised that significant childhood trauma, derived from emotional abuse, remains.
[13] By way of education, Mr. Ramocan is one credit short of completing his secondary school education. He left school at 17 years of age and, since has briefly attended community college in a trade program that was not completed.
[14] He continues to maintain a close relationship with his mother and eldest sister whom he leans upon heavily for support. Historically, the family’s financial pressures have been an impetus for her choices and resulting involvement with the criminal justice system.
[15] His criminal history commenced with a possession for the purpose of drug trafficking conviction from St. Catherines in 2017. He spent the equivalent of 4 ½ months in custody for that offence. In 2019, he was involved in an armed robbery and unlawful possession of a firearm, garnering convictions and a 33-month penitentiary jail sentence in March 2023. While unrelated, these offences occurred during the course the offence cycle before this court. Afterwards, in 2021, Mr. Ramocan was involved in another possession for the purpose of trafficking matter, alongside possession of a prohibited firearm with ammunition, unauthorized possession of a prohibited weapon, possession of a firearm while the subject of a prohibition order and failing to comply with a release order. These offences attracted an 18-month concurrent but consecutive sentence in April 2023 to the sentence he is serving from March 2023.
[16] As a result of his 2023 sentences, Mr. Ramocan has no attributable pre-sentence custody. He is presently serving those sentences and is eager to transition to the federal penitentiary system to complete his custody debt.
Victim Impact
[17] Victims have submitted Victim Impact Statements, Exhibits 2 – 4, globally respecting the involved defendants’ sentencing hearings. Relevant to Mr. Ramocan, I have a statement from K.D.
[18] While she does not describe or comment upon her interactions with Mr. Ramocan, the reality of being trafficked and exploited has had a profound and lasting impact upon her life. It has, not surprisingly, impacted her capacity for trust and future intimacy with others. She lost a valued period of her life which would otherwise have been focused upon completing her secondary school education and furthering her bonds with her family. As she tries to heal from this 18-month period of abuse, she reflects upon her suicidal ideation. Poignantly she commented: “No matter how many times I tell myself I’m over it all, and I’m healed, I’m not, I’ll never be, [it] left scars on me that only I can see and feel.” In some way, she acknowledges pride that she was able to bring an end to her abuse and prevent the offenders from harming others. She has every reason to feel proud.
Legal framework
[19] Section 286.3(1) of the Code provides that everyone who procures (meaning to cause, or to induce, or to have a persuasive effect upon) a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.
[20] By contrast, s. 279.01 of the Code provides that every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence and liable to, without kidnapping, imprisonment for a term of not more than 14 years. Therefore, it is important to note the distinctive inclusion in the trafficking offence of the element of exploitation.
[21] Section 718 of the Code highlights that “the fundamental purpose of sentencing is to protect society…and to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.” To achieve this purpose, the following relevant objectives and principles are noteworthy:
a. s. 718 highlights denunciation, deterrence, the separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility and acknowledgment of the harm done; b. s. 718.04 notes that the court should give primary consideration too the objectives of denunciation and deterrence when an offence involves the abuse of a person who is vulnerable because of personal circumstances – including because the person is Aboriginal or female; c. s. 718.1 highlights that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender; d. s. 718.2(a) emphasizes the importance of increasing or decreasing a sentenced based upon an assessment of the aggravating and mitigating circumstances, and deemed aggravating circumstances include: i. s. 718.2(a)(iii.1) notes where there is evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, ii. s. 718.2(a)(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, e. s. 718.2(b) highlights the importance of parity in sentencing so that similar offenders for similar offences in similar circumstances receive similar sentences; and f. s. 718.2(d) notes that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances bringing into focus the important principle of restraint, even where, as here, imprisonment is prescribed.
[22] The principle of proportionality is fundamental and has been characterized as the cardinal principal of sentencing requiring the court to consider the gravity of the offence and the moral blameworthiness of the offender. As the Supreme Court said in R. v. Lacasse, 2015 SCC 64 at para 12, “the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be.” This fundamental principle is central to the maintenance of public confidence in the criminal justice system. It demands that the punishment “speaks out against the offence and punishes the offender no more than is necessary.” R. v. Nasogaluak, 2010 SCC 6 at para 42 In so doing, it seeks to balance the principle of restraint with the importance of holding offenders accountable for their actions. The moral blameworthiness of the offender is important. Offenders who intentionally cause harm should be subjected to a greater punishment than those who did not intend the harm that flowed from their conduct. Sentencing must remain, however, a highly individualized task.
[23] Further, section 718(d) of the Criminal Code compels me to be mindful of importance of rehabilitation. Restraint is required, as noted in ss. 718.2(d) and (e), to ensure that an offender is not deprived of liberty if less restrictive sanctions may be reasonable and appropriate and, if custody is required, the least amount of custody necessary to satisfy other principles of sentencing should be imposed.
Bill C-36 – Protection of Communities and Exploited Persons Act
[24] In response to the Supreme Court’s Canada (Attorney General) v. Bedford, 2013 SCC 72 decision, Parliament enacted Bill C-36 as a significant paradigm shift away from treating prostitution as a nuisance and towards an acknowledgement that it is a form of sexual exploitation that disproportionately and negatively impacts women and girls. In the Department of Justice Technical Paper, 2014, Parliament acknowledged the objectives of Bill C-36:
Prostitution reinforces gender inequalities in society at large by normalizing the treatment of primarily women’s bodies as commodities to be bought and sold. In this regard, prostitution harms everyone in society by sending the message that sexual acts can be bought by those with money and power. Prostitution allows men, who are primarily the purchasers of sexual services, paid access to female bodies, thereby demeaning and degrading the human dignity of all women and girls by entrenching a clearly gendered practice in Canadian society.
Prostitution also negatively impacts the communities in which it takes place through a number of factors, including: related criminality, such as human trafficking and drug-related crimes; exposure of children to the sale of sex as a commodity and the risk of being drawn into a life of exploitation; …and, unwelcome solicitation of children by purchasers.
The difference between the material benefit and the procuring offences hinges on the level of involvement in the prostitution of other persons. As with the procuring offences replaced by Bill C-36, the new procuring offence requires active involvement in the provision of another person’s sexual services; whereas, passive involvement is sufficient to make out the material benefit offence. For example, a “classic pimp” is likely to be caught by both the procuring offence and the material benefit offence, because pimps generally induce or cause others to offer or provide their sexual services and they economically benefit from that activity. In contrast, a person who derives a benefit from the prostitution of others, without actively inciting the provision of sexual services, such as a “bouncer,” who works at a strip club and knows that prostitution takes place there, is only caught by the material benefit offence. This difference justifies the imposition of higher penalties for procuring.
[25] In R. v. N.S., 2022 ONCA 160; leave to appeal refused, [2022] SCCA No 281, the Ontario Court of Appeal found the new Bill C-36 prostitution regime constitutional noting that Parliament had fundamentally changed the lens through which it views prostitution – now, it is viewed as “inherently exploitative and something that must be denounced and discouraged.”
[26] In Canadian Alliance for Sex Work Law Reform v. Attorney General, 2023 ONSC 5197 at para 200, Goldstein J. identified the third-party targets of the new Bill C-36 legislative regime, “classic exploiters and/or traffickers.” In defining the roles of third parties, the court noted that some were “exploiters and/or traffickers” capable of using “violence, manipulation, drugs, or intimidation (or a combination), to control sex workers.” They can force those selling sexual services to engage in sexual activities against their will, and can take “control of the advertising, finances, housing, clothing, and other aspects of sex work.” Ibid at para 204
Ranges of sentences for procuring prostitution
[27] The primary sentencing principles for procuring the sale of sexual services is denunciation and deterrence. R. v. Lopez, 2018 ONSC 4749 at para 53 General deterrence seeks to discourage like minded others from committing similar offences while denunciation requires that a sentence communicate society’s condemnation of the conduct. R. v. Bissonnette, 2022 SCC 23 at paras 46-47
[28] While the sentencing common law in the human trafficking context has burgeoned over the last decade, there is far less established authority respecting established sentencing ranges for s. 286.3 procuring prostitution offences, let alone ones involving party liability.
[29] In R. v. Lopez, 2018 ONSC 4749 at para 53, Campbell J. discussed the range of sentences appropriate for “pimping offences.” In the specific context of human trafficking, he observed that “where the accused has coerced a woman into becoming or remaining a prostitute and exercised a significant degree of control over her activities, sentences of four or five years are typically imposed.”
[30] Both the Crown and defence provided helpful sentencing authorities for procuring prostitution and trafficking offences. They assist generally with the appropriate range of sentence. However, none of the authorities directly focus upon party liability for procuring in the context of a known larger prostitution operation. These present circumstances appear somewhat unique.
[31] In R. v. Mascoe, 2020 ONCA 706, the Ontario Court of Appeal dismissed an appeal against a 5-year sentence for an offender convicted after trial of both procuring and receiving a material benefit from prostitution. The offender exerted control over the victim by driving her to retrieve clothing, going to the mall to purchase items and then to a hotel to begin her sale of sexual services – obviously similar features to the case before me. In addition, this offender monitored the victims exchanges with ‘clients’ and collected all the money she earned. Once, he berated her for not working hard enough. And, emphasizing his control, he would not alone her to visit her family without him. Unlike Mr. Ramocan, this offender had a lengthy and related criminal history with two prior convictions for like offences, being on probation for a similar offence at the time of this offence. He was found to have no interest in rehabilitation as the “sex trade” was his livelihood. The Crown had sought an 8-year sentence, the defence countered with 15 months incarceration noting the lack of any violence or intimidation involved. Arguably, I note that the presence of violence and/or overt intimidation would qualify the offender for human trafficking consideration. Nevertheless, the court’s 5-year sentence was not disturbed, the appellate court emphasizing the offender’s related record and poor rehabilitative prospects.
[32] In R. v. J.G., 2021 ONSC 1095, Barnes J. sentenced the offender after trial findings of guilty on procuring, advertising, obtaining a material benefit from prostitution and possession and distribution of child pornography charges. He was sentenced, globally, to 4 ½ years incarceration, with 4 years attributed to the procuring offence. While there was no violence involved and the victim sought him out to assist her in the sale of sexual services, he had a strong influence over her. He managed the victim’s sales of sexual services for three weeks by arranging appointments, accommodations for the appointments, taking pornographic pictures of her and advertising her services. He provided “some” protection and monitoring. He received half of her earnings. He had a lengthy criminal record including a prior procuring prostitution offence, however, was still a youthful adult. I found helpful the court’s assessment of systemic racism as a mitigating factor on this offender’s sentencing considering “a more nuanced and informed understanding of the impacts of systemic racism to achieve a fair, just and appropriate sentence.” J.G., at para 47 But, perhaps most aggravating from a sentencing perspective, the victim was 17 years old – a minor – branching this offender into the Friesen child abuse realm of sentencing authority. This factor, beyond the others, skews the sentencing analysis and, as a result, lessens its parity for adult procuring offences.
[33] In R. v. M.E.D., 2022 ONSC 1899, a human trafficking, prostitution and sexual assault case, the offender persuaded the victim to sell sexual services so that she could pay for living and tuition expenses. He advertised and controlled the sale of her sexual services, keeping the income earned over the course of two months. He forced her to perform sexual acts upon him. To extract herself from his grip and this ‘work’, she was required to pay him $10K. The offender was convicted after trial. He was youthful with an unstable upbringing and a limited criminal history. He was sentenced to a global 5-year term, with 4 years attributed to his procuring prostitution offence, concurrent, which was, surprisingly, consistent with the human trafficking convictions as the sexual assault garnered a 12-month consecutive term. As a result of the extent of matters obviously globalized for sentencing purposes, I find little direction in the quantum of 4 years incarceration for the procuring prostitution offences.
[34] In R. v. Kanyanga, 2023 ONSC 3426, the offender pled guilty to three counts, including procuring prostitution, receiving a material benefit from prostitution, and advertising sexual services. The Crown sought a 5-year sentence and the defence countered with a request for 3 years. The offender, over the course of a week, acted as the victim’s “pimp”, splitting the victim’s earnings and engaging in conduct short of threats or coercion. He received a totality disposition of 4 years incarceration.
[35] In R. v. Safieh, 2021 ONCA 643, in the context of an appeal from the striking of the mandatory minimum sentence of 5 years for procuring prostitution of a minor, the Ontario Court of Appeal addressed a curious hypothetical of some relevance to these circumstances, from a parity liability basis. The scenario involved an 18-year-old prostitute working for a ‘pimp’ to pay off her drug debts. At his behest, she recruits a 17-year-old interested in doing likewise. She has no expectation of financial gain and is merely serving the interests of her ‘pimp’ by facilitating his recruitment. This party is herself a victim from a troubled background. The trial judge concluded that such a scenario would appropriately garner a 2 to 2 ½ year jail sentence. Assessing this hypothetical, the Court of Appeal agreed that while this hypothetical party offender had significantly reduced moral culpability, it did not endorse the sentencing range suggested but, equally, did not interfere with the trial judge’s conclusion that the mandatory minimum sentence of 5 years would be grossly disproportionate.
[36] I found particularly helpful the analysis from R. v. Williams, 2023 ONSC 4648, where Trimble J. sentenced an offender found guilty after jury trial. This offender exploited his intimate relationship with the victim to control her, then decided her ‘work’ schedule, booked her appointments, set prices, negotiated with ‘clients’ what sexual services would be performed and kept all her income paying her only what he deemed she needed from time to time. Indeed, demonstrative of his control, he required the victim to pay him for times when she could not ‘work’. The Crown sought a 3-year sentence while the defence countered with a request for an 18-month conditional sentence. Amongst other mitigating features, the defence highlighted his racial background, as a young, black man who had been the subject of racism. An enhanced pre-sentence report outlining his racialized experience as a Canadian immigrant was assessed. While his racial background and the associated social and economic challenges were noted, the court could not find that his race and/or racial background played any direct or indirect role in his offending conduct. He was on bail for 7 years, without incident, and had no criminal history with good rehabilitative prospects. The court found that the range of sentencing was between 1- and 5-years imprisonment and, specifically, 1 to 3 years for first time offenders. He was sentenced to 28 months for the procuring offence, 20 months concurrent for the receiving material benefit offence.
[37] In R. v. Deidun, 2022 ONSC 3014, the offender and his partners exercised control, direction and influence over the activities of two complainants they procured into the sale of sexual services. They made all arrangements, advertisements and managed all payments for the services in an exploitative fashion for this for-profit enterprise. The court utilized factors suggested in R. v. Tang, 1997 ABCA 174 and R. v. Miller, [1997] OJ No 3911 (Gen. Div.) for its sentencing analysis. While they are helpful, I will defer to factors outlined post Bill C-36 as found in Lopez, which falls outside the nuisance based former prostitution legal regime. Ultimately, the offender was sentenced to 3 years for the procuring related offences involving the two complainants. His partner, Ms. Bernard, who was less directly active and not directly receiving material benefits, was sentenced to 2 years incarceration.
[38] In R. v. Greaves, 2023 ONSC 5474, the offender was found guilty by a jury of human trafficking, procuring prostitution and receiving a material benefit from prostitution. He later pled guilty to human trafficking and receiving a material benefit from prostitution of a minor. The defence sought a conditional sentence while the Crown countered with a 7-year jail recommendation. The offender was sentenced to a totality of 43 months (or just over 3 ½ years) incarceration. Specific to the procuring of prostitution count relating to the adult victim, the offender received a 3-year sentence, concurrent. This offender was 22 years of age and a first-time offender who had significant immigration consequences resulting from these findings. Again, it is difficult to derive much persuasive value from a narrative intertwined in human trafficking findings, but the procuring sentence does not, itself, fall outside the acknowledged Williams range.
[39] In R. v. Eftekhar, 2020 ONSC 1386, the offender was convicted by a jury of procuring prostitution, obtaining sexual services for consideration, assault and human trafficking. The offender brought the victim into prostitution and was “controlling and domineering” intimidating the victim into believing that her safety was at risk if she failed to continue to provide sexual services at his direction. He was sentenced to a global 4-year disposition, with a concurrent sentence of 2 years for the procuring offence. How the court distinguished between the human trafficking and procuring prostitution delicts was not entirely clear.
[40] In R. v. McPherson, 2013 ONSC 1635, the offender was found guilty by a jury of procuring prostitution and controlling the victim’s movements to aid or compel her to engage in prostitution for gain. He set up the 19-year-old victim, with whom he was in an intimate relationship, as a dancer in an exotic dancer and took most of her earnings. He then instructed her to perform sexual services for club patrons. This ‘pimping’ lasted for 18 months wherein he exercised significant control over her, including her work locations, her schedule, and the sexual acts she was required to perform. The offender expected her to meet an earnings quota. He took most of the money and lived largely off those proceeds. This experience had a lasting negative impact upon the victim. He was sentenced to 3 years incarceration.
[41] In R. v. Lucas-Johnson, 2018 ONSC 4325, the offender was convicted after trial of two counts of procuring prostitution. He met the victim when she was 18 years old and at his behest, she serviced men for two months. The offender and the victim lived in an intimate relationship. The offence did not involve coercion or assault. The aggravating factors included that the offender took advantage of the victim's emotional attachment to him, that the offender had a criminal record for assaults, uttering threats, and intimate partner violence related breaches. Additionally, the offender was on probation when he committed the offences. The mitigating factors included close family connections and support, that the offender was youthful, and that there were no drugs, alcohol, or firearms involved. He was sentenced to 12 months incarceration and two years of probation.
[42] With the benefit of these authorities, I am satisfied that the procuring prostitution range as suggested in Williams, 1 to 5 years incarceration, 1 to 3 years for first time offenders, is justified. For those less involved who are acting like parties, absent violence or coercive circumstances that approach trafficking, the sentencing range has not generally exceeded 3 years.
Social context evidence
[43] The defence has raised the issue of social context evidence, the presence of anti-Black racism and discrimination, as a relevant feature for my consideration respecting the extent of Mr. Ramocan’s moral blameworthiness. He relies upon his history as relayed to me during submissions, which did not directly speak to the impact of systemic racism or discrimination upon his life or his choices, related to or separate from this offending conduct.
[44] There is now a developing line of sentencing authorities that explore the impact of systemic racism and its relation to sentencing. In R. v. Jackson, 2018 ONSC 2527 at para 40, Nakatsuru J. observed that “African Canadians have been jailed three times more than their general representation in society for quite some time. The problem is not getting better.” However, over a decade earlier, our Court of Appeal in R. v. Hamilton at para 133 cautioned that:
The fact that an offender is a member of a group that has historically been subject to systemic racial and gender bias does not in and of itself justify any mitigation of sentence. Lower sentences predicated on nothing more than membership in a disadvantaged group further neither the principles of sentencing, nor the goals of equality.
[45] Despite this caution, the court also noted that sentencing courts are “required to take into account all factors that are germane to the gravity of the offence and the personal culpability of the offender.” Ibid at para 134 The individualization of sentencing remains a fundamental duty for sentencing judges. In Jackson, the court went so far as to ask, rhetorically, “what is wrong in paying particular attention to the circumstances of the African Canadian offender to achieve a truly proportionate sentence. The answer is self-evident. Nothing.” Jackson, supra at para 115
[46] In Ontario, clarity respecting the use of social context evidence was provided by our Court of Appeal in R. v. Morris, 2021 ONCA 680. There, a 23-year-old black man without a criminal history was found guilty after trial of possessing a loaded firearm in a public place. More aggravating, he ran from the police and attempted to discard the firearm exacerbating the public risk. The court noted that while social context evidence does not detract from the seriousness of the offence or the need for denunciation, it can provide a basis for adding weight to the objective of rehabilitation and diminish the weight placed upon specific deterrence. However, there must be a connection between the overt and/or systemic racism identified and the circumstances or events that explain or mitigate the criminal conduct in issue. Absent this connection, mitigation of a sentence based simply on the existence of overt or institutional racism becomes an impermissible discount based upon an offender’s race. That said, a court when applying the restraint principle, can consider the over-incarceration of Black offenders in Canadian society and, in appropriate cases, address this concern through the imposition of a conditional sentence.
[47] I have reviewed and considered a number of post-Morris authorities that have relied upon anti-Black racism as a mitigating factor related to an offender’s moral blameworthiness. By and large, these authorities, informed by enhanced pre-sentence reports that speak directly to the offender’s experience with racism, involve scenarios where gun possession charges are linked, at least to some extent, with the offender’s history and resulting fears within the community. These offenders, it is argued, have diminished options due to the social context which informs, but does not excuse, their possession of dangerous illegal weapons.
[48] Here, I have a paucity of evidence respecting Mr. Ramocan’s experience with anti-Black racism or how it informed, contextually, this offending conduct. I do not have an Enhanced Pre-Sentence Report, as I understand they have come to be called. I suppose that I am simply asked to infer from what has been relayed in submissions that he has been the victim of anti-Black racism and, by implication, it has somehow informed his offence related conduct in a fashion understood through a number of like cases.
[49] Of course, it is not hard to imagine that Mr. Ramocan has experienced racism and discrimination in his life. I am advised that he moved to Milton at the age of 11 years. As a Jamaican black boy in a predominantly white community, he experienced racial slurs and irrational fears. He developed the sense that teachers were tougher on him leading ultimately to a loss of trust with persons in authority, including generalized experiences with police. He believes that he has been the subject of harassment from police, including being charged for a robbery offence he did not do which resulted in the charge being withdrawn. Of course, the legacy his father has left with the criminal justice system is also relevant. I am told that these experiences have had a real and remaining impact upon him. Any number of these features, contextually, may be inferred as related to, at least to some extent, his racial status growing up in urban Ontario.
[50] In R. v. Gabriel, 2017 NSSC 90 at para 54, Campbell J. was provided with a cultural impact assessment outlining the history of the African Nova Scotian experience over the past 400 years. The court considered what it called the “legacy of racism in Nova Scotia”, a legacy that very well may have parallels in southern Ontario, and commented:
A person’s racial background is also a part of his identity. It does not determine his actions. It does not establish a lower standard for assessing moral culpability. It does not justify or excuse criminal behaviour. It may however help in understanding the broader circumstances that acted upon the person.
[51] Context matters. I find Campbell J.’s acknowledgment of it as a helpful and rational consideration to the sentencing exercise, although its effect is diminished from a strict Morris perspective by the lack of an established nexus to this particular offending conduct.
[52] Mr. Ramocan’s background and possible, if not likely, experiences with overt or systemic racism do not excuse or lesson the seriousness of this offending conduct. Nevertheless, his life experiences may attenuate his moral culpability if it provides an explanation for his choice to commit this particular offence. Here, I cannot confidently leap to that finding on this evidentiary record. To subscribe his offending conduct directly or even indirectly to his racialized experience would be to infer well beyond the factual foundation presented by this evidentiary record. Of course, that does not take away from my ability to consider, in general, this offender’s disadvantaged background as a young Black Canadian living in urban Ontario, as a proper, though perhaps less compelling, mitigating circumstance.
Positions of the parties
[53] The defence seeks a sentence of 14 months incarceration. They argue that the exercise of restraint is necessary based upon the party status of this offending conduct and its relative absence of the traditional aggravating features of control and coercion. Mr. Ramocan’s racialized background diminishes his moral blameworthiness coupled with the significant mitigating benefit of his guilty plea. A sentence on the lower end of the range is, therefore, appropriate.
[54] The Crown is seeking a 6-year penitentiary sentence. It is submitted that Mr. Ramocan played an active role in the recruitment of these vulnerable victims and in their engagement with the sale of sexual services for over 2 years. The Crown acknowledges that this matter explores “uncharted territory” in sentencing for prostitution related procuring matters. They characterize Mr. Ramocan as a party to the recruitment efforts of J.H., by facilitating, in J.H.’s absence, the commencement of both victims’ entry into the sale of sexual services. He was not simply helping a friend, but was aware of the nature of his actions and J.H.’s ongoing intentions and actively facilitated them beyond recklessness or wilful blindness. Indeed, they go further and suggest that Mr. Ramocan was working with another to ‘pimp’ the victims which is statutorily aggravating because they were operating a “criminal organization”.
[55] Ancillary orders including DNA, a weapons prohibition and continued non-communication prohibitions with the various victims are uncontested.
Analysis
A fit sentence for this offence and this offender
[56] Using existing jurisprudence, Campbell J. in Lopez identified a non-exhaustive list of factors to assist in the sentencing assessment of “pimping offences” which I believe, to a relative extent, bear upon the prostitution procuring analysis as well, including:
i. the degree of coercion or control imposed by the ‘pimp’ on the prostitute's activities – here, the control exerted was largely passive and indirect through his association to J.H.; ii. the amount of money received by the ‘pimp’ and the extent to which the pimp allowed the prostitutes to retain their earnings – here, there is no evidence of Mr. Ramocan directly profiting off his enabling and assistance of J.H.’s efforts, but I am prepared to infer that some consideration beyond friendship was at play; iii. the age of the prostitutes and their numbers – these two victims were young adults; iv. any special vulnerability of the prostitutes – both victims had experienced instability in their lives that was knowingly taken advantage of by J.H., and, respecting A.S., an Indigenous young woman who had just lost her children, Mr. Ramocan’s active recruiting facilitation; v. the working conditions in which the prostitutes were expected or encouraged to operate, including their physical surroundings in terms of soliciting and servicing customers, and safety concerns, in addition to whether appropriate health safeguards were taken – Mr. Ramocan’s involvement with K.D.’s entry into the sale of sexual services was not apparently motivated by the provision of security in an inherently dangerous activity, as proven by her subsequent undeterred robbery victimization and her subsequent transfer to J.H.’s ‘care’ in Sudbury; vi. the degree of planning and sophistication, including whether the ‘pimp’ was working in concert with others – Mr. Ramocan’s assistance to J.H.’s efforts, though not terribly sophisticated, amplifies the supervisory restraints of this controlled environment; vii. the size of the ‘pimp's’ operations, including the numbers of customers the prostitutes were expected to service – while J.H.’s activities were protracted, Mr. Ramocan’s involvement with numbers of clients is unclear; viii. the duration of the pimp's exploitative conduct – while it lasted over the course of two years, realistically Mr. Ramocan’s actions were not pervasive but instead focused and time restricted over the course of a handful of days, at most; ix. the degree of violence, if any, apart from that inherent in the ‘pimp's’ parasitic activities – Mr. Ramocan’s presence and acquiescence to the K.D. threat is concerning and amplifies his moral culpability; x. the extent to which inducements such as drugs or alcohol were employed by the ‘pimp’ – Mr. Ramocan was not involved in such conduct; xi. the effect on the prostitutes of the ‘pimp's’ exploitation – the victim impact was profound and lasting and is equally applicable respecting the two victims of Mr. Ramocan’s actions; xii. the extent to which the ‘pimp’ demanded or compelled sexual favours for himself from the prostitutes – while Mr. Ramocan had intimate relations with both victims, they don’t appear to be related to his offence specific conduct; xiii. the age of the customers attracted to the services of the prostitute – here, this is unknown; xiv. any steps taken by the ‘pimp’ to avoid detection by the authorities – from Mr. Ramocan’s perspective, again this is unknown; and xv. any attempts by the accused to prevent the prostitute from leaving his employ – no evidence suggesting that Mr. Ramocan was involved in coercing continued prostitution was presented. Lopez, supra at 53
[57] With these factors in mind, I must assess proportionality through the lens of the presenting aggravating and mitigating factors relevant to this offence and this offender. With the Lopez factors considered, the most prevalent aggravating factors present include the following:
a. the number of victims (two) as compared against much of the common law involving a single complainant; b. the specific vulnerability of these victims. K.D. was 18 years of age when procured into the “sex trade”. She had been having trouble at home and school. A.S. is an Indigenous woman who was 22 years of age when procured and had just had her children taken into foster care. She wanted a fresh start to make a better life for herself. Instead, Mr. Ramocan knew about A.S.’s background, including her Indigenous status, having lived with her and her mother and having been a former intimate partner, yet facilitated her recruitment into J.H.’s prostitution efforts; c. the offence timeframe spanned over two years, though this is significantly attenuated by the mere handful of days of active involvement by Mr. Ramocan; d. his awareness that these victims were being coerced, intimidated, and/or threatened by J.H. and his acquiescence and enabling of it. For example, on one occasion, Mr. Ramocan was present when J.H. threatened to have K.D. killed at his hands. His silence in the face of such a threat can reasonably be inferred as adopting or supporting it; e. the impact upon the victims was profound, both specifically and inherently, and cannot be minimally apportioned between Mr. Ramocan and J.H. By knowingly assisting with the procurement and provision of sexual services by these vulnerable victims, Mr. Ramocan bears responsibility for its impact, just as a drug trafficker who initiated and enabled a client/victim’s addition would; and f. while specifically unrelated, his criminal record, including a drug trafficking conviction from November 2017. Afterwards, Mr. Ramocan was also found guilty of various offences, including: armed robbery and possession of a handgun contrary to a prohibition order in March of 2023 (offences from 2019 which occurred during this offence narrative); and possession of a firearm while prohibited, possession of a loaded prohibited firearm, unauthorized possession of a firearm, drug trafficking, and failing to comply with a release order from April 2023 (offences dating to 2021, after this offence narrative timeframe).
[58] Beyond these considerations, the Crown goes further by arguing that Mr. Ramocan was engaged in assisting a “criminal organization” by knowingly facilitating J.H.’s trafficking operation. The Crown relies upon the analysis in R. v. Alexis-McLymont, Hird & Elgin, 2018 ONSC 1152, whereby Leach J. found that three offenders acted in concert to affect a prostitution operation as a “Cash Gang” in an organized manner, dividing up respective tasks to enhance profit beyond the commission of a single offence. Whether or not Parliament intended jointly organized prostitution efforts to constitute the aggravating feature of benefiting a “criminal organization”, as referenced in s. 718.2(a)(iv), I need not comment upon. Here, I find that Mr. Ramocan’s isolated and few involvements in J.H.’s prostitution activities does not satisfy me that these actions were for the “benefit of, at the direction of or in association with a criminal organization.”
[59] I have also considered a number of mitigating factors relevant to proportionality, including:
a. Mr. Ramocan has pled guilty which is a formal acknowledgement of remorse, coupled with his allocution apology which I characterize as sincere. First, this plea has saved substantial finite administration of justice resources at a time when the pandemic induced backlog has tested the capacity of our justice system. This proceeding, coupled with the co-accused, was slated for a long jury proceeding that has now been avoided. Second, this guilty plea has not only brought finality but has sparred the victims the additional trauma of further reliving these events in a public, scrutinized way. Given the uncertainty of the trial process, particularly in complex human trafficking and prostitution prosecutions, this is no small concession deserving of meaningful mitigating credit; b. while I do not have much in the way of custodial rehabilitative efforts, Mr. Ramocan has used some of his time in pre-sentence custody completing various certificates for rehabilitative programing; c. his pre-sentence custody, while not part of a request for Duncan credit consideration, was nevertheless at various regional detention centres plagued by overcrowding, harsh pandemic remediation efforts, violence, and limited rehabilitative programming – all features that based upon this Court’s experience I am prepared to take judicial notice of; and d. his racialized background, history with racism, and the reality of an overrepresentation of racialized persons in custody is a relevant context for moral culpability assessment and, most importantly, the principle of restraint.
[60] Beyond these considerations, I queried whether the mitigating effect of a guilty plea in a procuring prosecution case has enhanced value. All to often, these “pimping offences” are difficult to prosecute and/or bring to fruition due to the damage wrought upon the victims involved. Just getting a victim of human trafficking or procured prostitution to the courtroom is no small achievement for a variety of offence based human condition related circumstances. The nature of the coercion, control, and/or intimidation, even short of exploitative circumstances, often associated with these narratives invariably causes a chilling effect for prosecution cooperation. So, with that in mind, when faced with a guilty plea for this offending conduct, should I not prioritize and emphasize this mitigating factor?
[61] Or, as the Crown suggests, does a guilty plea within this context instead reflect the strength of the prosecution evidence – here, including forensic accounting, advertisements, corroborating text communications, cross-count corroboration and willing and active complainants? In the face of a strong Crown case, I am encouraged not overemphasize the mitigating benefit of the guilty plea.
[62] Frankly, both considerations are valid, and in the context of these evidentiary record, probably a wash.
[63] Which leaves the cumulative balancing of all these factors to achieve sentencing proportionality. Mr. Ramocan’s offending conduct must be denounced and deterred while appreciating that, even despite his awareness of J.H.’s activities, the gravity of his conduct is distinguishable. Where J.H. was exploitative, Mr. Ramocan was enabling and facilitating the procurement of prostitution. Therefore, Mr. Ramocan’s conduct must be assessed against a continuum of aggressive and controlling behaviour. With the assistance of the context provided by comparable cases, I conclude that this offender’s conduct was both focused and short in duration and, by its nature, falls on the lower end of a spectrum of this inherently coercive, demeaning and, in totality for these victims, exploitative conduct. While inherently grave conduct, it lacks the active coercive elements evident in many procuring prostitution cases which boarder upon the trafficking elements. His limited facilitation of the sale of sexual services as a party to J.H.’s more concerning operation distinguishes this case from many others.
[64] From a moral blameworthiness perspective, most aggravating is Mr. Ramocan’s facilitation of what he subjectively understood to be a significant trafficking operation by J.H. That he exploited two vulnerable victims, for whom he also had an intimate relationship, to assist this profit-based operation enhances his moral blameworthiness. His callous indifference to the victims’ safety and welfare was apparently grounded within a misogynistic acceptance of the commodification of women’s bodies and their resulting lack of human dignity. His presence for and acquiescence to the threatening conduct of J.H. speaks to their joint intention towards control over these victims and his willingness to facilitate same.
[65] As a first-time offender for like offences, his serious drug, weapons and violence related criminal history, does not restrict him to the discussed 1 to 3 year range from Williams. However, having considered this offender’s background, including a racialized history contextually understood, in addition to the significant mitigating benefit I afford to this guilty plea, I conclude that a 30-month sentence balances the minimum needs of deterrence and denunciation with the goals of restraint and proportionality in mind. But for these mitigating factors, a sentence of at least 3 years would have been entirely appropriate.
[66] To address the principal of totality, I have been asked to consider imposing this sentence concurrent to a penitentiary sentence presently being served for his 2023 convictions. I decline to do so. The principle of totality requires that the sum of consecutive sentences does not exceed the offender’s overall culpability. In R. v. Friesen, 2020 SCC 9 at para 155, the Supreme Court highlighted the “general rule … that offences that are so closely linked to each other as to constitute a single criminal adventure may, but are not required to, receive concurrent sentences.” There is no nexus to nor compelling reason for such a totality consideration here. These offence narratives are, as I understand it, entirely distinct. Indeed, to give effect to that submission would be to detract from the denunciatory message required for this offending conduct.
Ancillary orders
[67] As noted, the Crown seeks a DNA order, a weapons prohibition and a non-communication order with the victims while Mr. Ramocan serves his sentence. These requests are not opposed.
[68] Given the qualifying nature of this offending conduct as a “primary designated offence”, under s. 487.04, pursuant to s. 487.051 of the Code Mr. Ramocan will be required to provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act.
[69] Given the nature of this offending conduct, coupled with his criminal history, pursuant to s. 109(1) of the Code, Mr. Ramocan will be prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, prohibited ammunition and any other firearm or any cross-bow, restricted weapon, ammunition and explosive substance for life.
[70] Finally, pursuant to s. 743.21(1) of the Code, Mr. Ramocan is prohibited from communicating, directly or indirectly with all of the globally identified victims, including: K.D., A.S., B.S., A.H., A.R., R.R., and the co-accused J.H., S.H., C.W.
Conclusion
[71] As a result, recognizing the predominate sentencing principles of deterrence and denunciation, Mr. Ramocan is sentenced to 30 months incarceration, consecutive to any sentence he is presently serving.
[72] As noted, he will provide a DNA sample, is prohibited from possessing weapons or firearms for life, and will refrain from communicating with the identified victims.
M. B. Carnegie Released: September 24, 2024
Footnotes
[1] R. v. Lacasse, 2015 SCC 64 at para 12 [2] R. v. Nasogaluak, 2010 SCC 6 at para 42 [3] Canada (Attorney General) v. Bedford, 2013 SCC 72 [4] Department of Justice Canada, Technical Paper: Bill C-36, An act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts (Protection of Communities and Exploited Persons Act), 2014 (online: https://www.justice.gc.ca/eng/rp-pr/other-autre/protect/protect.pdf), at pages 4-5, 9 [5] R. v. N.S., 2022 ONCA 160; leave to appeal refused, [2022] SCCA No 281 [6] Canadian Alliance for Sex Work Law Reform v. Attorney General, 2023 ONSC 5197 at para 200 [7] Ibid at para 204 [8] R. v. Lopez, 2018 ONSC 4749 at para 53 [9] R. v. Bissonnette, 2022 SCC 23 at paras 46-47 [10] Lopez, supra at para 53 [11] R. v. Mascoe, 2020 ONCA 706 [12] R. v. J.G., 2021 ONSC 1095 [13] J.G., at para 47 [14] R. v. M.E.D., 2022 ONSC 1899 [15] R. v. Kanyanga, 2023 ONSC 3426 [16] R. v. Safieh, 2021 ONCA 643 [17] R. v. Williams, 2023 ONSC 4648 [18] R. v. Deidun, 2022 ONSC 3014 [19] R. v. Tang, 1997 ABCA 174 [20] R. v. Miller, [1997] OJ No 3911 (Gen. Div.) [21] R. v. Greaves, 2023 ONSC 5474 [22] R. v. Eftekhar, 2020 ONSC 1386 [23] R. v. McPherson, 2013 ONSC 1635 [24] R. v. Lucas-Johnson, 2018 ONSC 4325 [25] R. v. Jackson, 2018 ONSC 2527 at para 40 [26] R. v. Hamilton, [2004] OJ No 3252 (CA) at para 133 [27] Ibid at para 134 [28] Jackson, supra at para 115 [29] R. v. Morris, 2021 ONCA 680 [30] R. v. Gabriel, 2017 NSSC 90 at para 54 [31] Lopez, supra at 53 [32] R. v. Alexis-McLymont, Hird & Elgin, 2018 ONSC 1152 [33] R. v. Friesen, 2020 SCC 9 at para 155