WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Date: 2017-11-16

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Natasha Robitaille

Before: Justice M. Greene

Reasons for Sentence released on: November 16, 2017

Counsel:

• D. Moskovitz for the Crown
• A. Menchynski for Natasha Robitaille

Introduction

[1] Ms. Robitaille was charged along with Mr. Finestone with offences relating to forcing two minors to work in the sex trade. At the time of the offences, Ms. Robitaille was a sex trade worker herself and Mr. Finestone was her pimp. She was also dating Mr. Finestone and believed herself to be in love with him. Mr. Finestone was charged with human trafficking and other offences. He ultimately entered a plea of guilty to one count of human trafficking in relation to one of the minors, J.D., and I sentenced him to four years' incarceration in the penitentiary for his offence. Ms. Robitaille has entered a plea of guilty to two counts of receiving a material benefit from the sexual services of two minors pursuant to section 286.2(2) of the Criminal Code. The issue before the court is what is the appropriate sentence for Ms. Robitaille?

[2] Pursuant to section 286.2(2) of the Criminal Code, the minimum sentence for receiving a material benefit from the sexual services of a child is two years imprisonment. Crown counsel argued that given the mitigating factors involved in the case at bar, the minimum sentence is appropriate. Counsel for Ms. Robitaille argued that a suspended sentence or a conditional sentence is the appropriate sentence. He urges to the court to find that section 286.2(2) of the Criminal Code violates both section 7 and 12 of the Charter. Counsel further argued that section 741.2 (c) of the Criminal Code which prohibits the imposition of a conditional sentence for this offence is also in violation of section 7 of the Charter.

Facts of the Offence against J.D.

[3] Before embarking on a review of the facts in this case, I note that the facts presented at Ms. Robitaille's sentencing hearing were different from the facts presented at Mr. Finestone's sentencing hearing. As a result of the different evidence presented at the two separate hearings, some of my findings of fact in this case are different from my findings of fact in the Finestone case.

[4] On February 21, 2015, J.D., a 14 year old girl, was introduced to Mr. Finestone and Ms. Robitaille through a mutual acquaintance. J.D. met with Mr. Finestone and Ms. Robitaille at the Marriot Hotel at 90 Bloor Street West. Upon arriving at the hotel, Ms. Robitaille was asleep so J.D. socialized with Mr. Finestone. No details were provided about what this "socializing" entailed.

[5] The following day, Mr. Finestone directed a third party named "Swiffy" to book a second hotel room. Mr. Finestone then forced J.D. to engage in prostitution day and night. Four days later, Ms. Robitaille and Mr. Finestone moved J.D. to a different hotel where she was again forced to work as a prostitute to pay off all the rooms and the expenses of the group.

[6] According to the agreed statement of facts, no violence or explicit threats of violence were used to compel J.D. to engage in prostitution. Instead, Mr. Finestone took advantage of J.D.'s vulnerability as a means to control her.

[7] Ms. Robitaille and Mr. Finestone directed J.D. on what clothes to wear. Ms. Robitaille provided further instructions on how to act with customers, what type of services to perform, the definition of various terms and other relevant information on how to engage in prostitution.

[8] Mr. Finestone posted an advertisement for J.D.'s services stating that J.D. was 19 years old. Over the course of the week that J.D. was under Mr. Finestone's control, J.D. serviced approximately 20-30 clients with the sexual services including oral and vaginal sex. On one occasion no condom was used. Condoms and lubricant, however, were left in J.D.'s hotel room and available for her use.

[9] While customers paid thousands of dollars for J.D.'s services, she was not permitted to set the price of her services or keep the money. All proceeds went to Mr. Finestone who then spent some of those proceeds on Ms. Robitaille.

[10] On February 27, 2015, J.D. told Mr. Finestone that she was going out to meet her boyfriend. She was directed by Mr. Finestone to return by 6:00 p.m. J.D. left as planned and returned with her boyfriend with the intention of packing up and leaving. Mr. Finestone directed a man named "Faria" to tell J.D.'s boyfriend to leave and to stand in the hallway outside of J.D.'s room to make sure that the boyfriend did not return.

[11] At 9:00 p.m. on this same date, J.D. stated to another prostitute that she wanted to go home. J.D.'s mother offered to pay for a taxi to bring J.D. home. Upon discovering this, Ms. Robitaille took J.D.'s cellular telephone from her and advised J.D. that she was not allowed to contact anyone. Mr. Finestone then unplugged the hotel room telephone and asked the hotel to block all calls to J.D.'s room. J.D. was then instructed to prepare for her next customer. Mr. Finestone left the room and Ms. Robitaille yelled at J.D. who by this time was crying and felt like a hostage who had no means of escape. Eventually Ms. Robitaille left the room, slamming the door on her way out. A third person remained in the room with J.D.

[12] Security, responding to a noise complaint, attended at J.D's room moments later and found J.D. crying. J.D. told security that she was under aged and was being forced to engage in prostitution.

[13] During a police interview later that evening, while questioning Ms. Robitaille, Mr. Finestone stated to her "remember what we talked about". After hearing this utterance, Ms. Robitaille ceased talking to the officer.

Facts of the Offence against C.S.

[14] In January of 2015, Ms. Robitaille contacted C.S., whom she knew from high school, and spoke about her work as an escort. C.S. was 16 years old at the time. Shortly thereafter, a friend of Mr. Finestone contacted C.S. and arrangements were made to bring C.S. to the hotel where Mr. Finestone and Ms. Robitaille worked. When C.S. met Mr. Finestone she advised him that she was only 16 years old. Mr. Finestone and Mr. Taylor stated they would not work with C.S. but Mr. Finestone then directed Ms. Robitaille to tell C.S. that she would work for Ms. Robitaille privately. Mr. Robitaille brought C.S. her first customer. C.S. performed a hand job on this customer. Ms. Robitaille told C.S. to hand over all the money she made from this act to pay for the cost of bringing C.S. to the hotel. C.S. saw four more customers and had sexual intercourse with one of these customers.

[15] Ms. Robitaille instructed C.S. on how to dress and what to do. Moreover, photographs were taken of C.S. in red lingerie for the purpose of advertising. The following day, after moving hotels C.S. left. Immediately after leaving, Ms. Robitaille telephoned and sent text messages to C.S. demanding that she return to the hotel.

Victim Impact

[16] The court is thankful to J.D. for providing a victim impact statement. It is well recognized just how painful writing out such a document can be. The information provided by J.D. is phenomenally helpful to the court. As a result of Mr. Finestone's and Ms. Robitaille's conduct, J.D. suffers from low self-esteem and depression. Her innocence and childhood were taken away from her. While J.D.'s identity was protected by the courts, people in her community knew about the offence. As a result, J.D. has suffered and continues to suffer from the public nature of her victimization. Like so many victims J.D. feels shame and responsibility for her own victimization. It is Mr. Finestone and Ms. Robitaille, however that are responsible for this, NOT J.D. At an age when J.D. should be enjoying first dates, and movies and school, because of Mr. Finestone's and Ms. Robitaille's actions J.D. is forced to contemplate whether or not she will ever have a "normal" life.

[17] There can be no doubt that J.D. has suffered greatly because of Mr. Finestone's and Ms. Robitaille's actions and that she will continue to suffer for a long time.

[18] C.S. did not provide a victim impact statement in the case at bar, nonetheless, I am satisfied that I can take judicial notice of the extreme harm she must have suffered as a result of this offence. The long lasting psychological effects of child prostitution are well known and referenced frequently in the case law.

Circumstances of the Offender

[19] Ms. Robitaille testified at her sentencing hearing. Her evidence was confusing at times and often contradicted by posts she made to facebook. As a result of the inconsistencies in her evidence, it is difficult to accept all of her evidence. It is particularly difficult to identify a clear timeline of events. Despite the inconsistencies between Ms. Robitaille's evidence and her facebook posts, I nonetheless accept the majority of her evidence in particular as it relates to the trauma she suffered as a young person and to her own victimization as a child sex worker. I do so for a number of reasons. Firstly, I note that the vast majority of the inconsistencies relate to times and dates of when events took place as opposed to the details of many of the events. Given her struggles as a young person, the extent of the trauma she has suffered over time and her drug addiction it is easy to understand why her memory of dates and times is foggy. Secondly, much of what Ms. Robitaille testified about was corroborated in some respects by independent evidence which allows me to have more confidence in the accuracy of this evidence. Thirdly, the Crown does not dispute key portions of Ms. Robitaille's evidence. Instead the Crown argued that while much of Ms. Robitaille's evidence was truthful, she was also prone to exaggeration. Crown counsel took the position that Ms. Robitaille intentionally exaggerated the harm she has suffered to mislead the court and obtain additional benefit on sentence.

[20] In some respects the Crown's position is well founded in that it does appear that at times Ms. Robitaille did in fact exaggerate. Ms. Robitaille at one point indicated that she had 20 pimps over her lifetime. A review of her facebook posts and the proper timeline of Ms. Robitaille's sex trade work suggests that the number of pimps was somewhat less than she indicated.

[21] Ms. Robitaille also testified that Mr. Finestone was the most abusive pimp she had. She also conceded, however, that the working conditions while she was with Mr. Finestone were better than the working conditions with other pimps. Moreover, Ms. Robitaille wrote many facebook posts where she commented on her happiness and intense love for Mr. Finestone.

[22] Ms. Robitaille testified that from the age of 16 onward she worked full time in the sex trade to the exclusion of all else. It is clear from her facebook posts that this is also not accurate. Ms. Robitaille had other lawful employment and spent time with her boyfriend during this timeframe.

[23] One other relevant inconsistency highlighted by the Crown was that Ms. Robitaille testified that she did not see her boyfriend, the one person who was a source of support for her, after moving to Toronto and starting to work for Mr. Finestone. According to her facebook posts, it is clear that Ms. Robitaille saw her boyfriend more often than she let on and remained with him even after she met Mr. Finestone.

[24] Crown counsel argued that these inconsistences were really just over-exaggerations of her trauma and understatement of the good things in Ms. Robitaille's life. I note that the Crown did not argue that Ms. Robitaille was not sexually abused, the Crown did not argue that Ms. Robitaille was not a child sex worker for numerous pimps nor did the Crown argue that Ms. Robtialle was not abused by Mr. Finestone. The Crown's argument focused on the extent of Ms. Robitaille's victimization. Given the evidence at the sentencing hearing, there is some real logic to Ms. Moskovitz's argument and I agree this is a reasonable conclusion based on all the evidence. Having heard the evidence, however, and having reviewed the inconsistencies, and in particular Ms. Robitaille's response when faced with the inconsistencies during her cross-examination, I have reached a different conclusion. The inconstancies and over statements in Ms. Robitaille's evidence are equally attributable to her long standing abuse of drugs during the time frame in issue and the extensive trauma she suffered during this time. During the course of her cross-examination, Ms. Robitaille was confronted numerous times with inconsistencies between her evidence and her social media postings. Ms. Robitaille readily admitted the inconsistency and did not try to make excuses for it. When I consider her evidence as a whole, I am satisfied that Ms. Robitaille was attempting to be truthful. Having said that, given the clear frailties in Ms. Robitaille's evidence, I do find that much of her evidence, in particular about dates and the timing of events was unreliable and absent some confirmatory evidence, I cannot rely on it.

Ms. Robitaille's Childhood

[25] Ms. Robitaille is presently 20 years old. At the time of the offence she was 18 and a half. These offences took place in February of 2015 and Ms. Robitaille turned 18 in August of 2014.

[26] Ms. Robitaille has two half siblings on her father's side. Her parents had another daughter after Ms. Robitaille was born who died at birth.

[27] Ms. Robitaille struggled as a child and displayed a number of behavioural problems at home and at school. Eventually, Ms. Robitaille ran away from home to avoid the strict rules of the house. She remained away from the house for some time before returning home. Over the next number of years, she continued to run away from home at intervals and live either on the street or with her boyfriend. The exact dates and years associated with Ms. Robitaille's time away from home are unclear because as I noted earlier, Ms. Robitaille presented as a poor historian with respect to the timing of events in her life. The fact that Ms. Robitaille ran away from home starting at a young age, was however, confirmed by her family. Ms. Robitaille held a number of jobs during her teen years. This was confirmed through her social media postings at the time.

[28] Ms. Robitaille has suffered numerous acts of sexual violence in her childhood. As noted above, given the lack of clarity in her evidence and the clear inconsistencies between her evidence and her facebook postings with respect to dates, it is unclear when each act of sexual violence occurred. There is no doubt however, that she was sexually abused and the Crown does not contest this fact.

[29] According to Ms. Robitaille, she was sexually assaulted by a stranger when she was eleven years old, shortly after she started to run away from home (it is likely given Ms. Robitaille difficulty with dates that she was older than eleven when this occurred). Ms. Robitaille was also sexually assaulted by another person while hitchhiking.

[30] In addition to these two discrete acts of sexual violence, Ms. Robitaille was involved in a sexual relationship with a 50 year old man when she under the age of 16. Ms. Robitaille testified that she thought she was 12 years old at the time but when I consider all the other evidence presented at the sentencing hearing, it appears that she was slightly older than 12.

[31] When Ms. Robitaille was approximately 16 years old, she started to work in the sex trade. Ms. Robitaille testified that when she was 16 she worked in the sex trade every single day to the exclusion of all other jobs. When confronted in cross-examination with facebook posts from when she was 16 years old that reference other paid employment, Ms. Robitaille agreed that her memory of working full time in the sex trade at 16 was incorrect. There is, however, some other evidence confirming that by the age of 15, Ms. Robitaille was working in the sex trade. At the present time the police have investigated and arrested a person for his role in pimping out Ms. Robitaille from January 2012-2013. Ms. Robitaille would have been 15 and 16 during this time. Regardless of the frequency of her work in the sex trade, it is clear that Ms. Robitaille was being sexually exploited by others while she was in her mid-teens. She was also physically abused by some of her pimps. I understand that the Crown does not dispute that these events occurred.

[32] During these years, Ms. Robitaille also started to abuse drugs including heroin, crack, cocaine and methamphetamines. Much of the money made by Ms. Robitaille went to purchase drugs to support her addiction.

[33] Ms. Robitaille appears to have had one positive male relationship in her life. She dated a man when she was 17 years old and at one point was engaged to him. It appears that he genuinely loved Ms. Robitaille, was stable and supportive of her. Ms. Robitaille was still dating him when she started working for Mr. Finestone.

Ms. Robitaille's Circumstances at the Time of the Offences before the Court

[34] At the time of the offences before the court, Ms. Robitaille was 18 ½ years old. She was still working in the sex trade and was working for Mr. Finestone. Ms. Robitaille described Mr. Finestone as her most abusive and worst pimp. While I accept that this is how Ms. Robitaille feels at the present moment, this appears to be inaccurate. As Ms. Moscovitz properly pointed out, Ms. Robitaille had other abusive pimps in the past and her facebook posts suggest that at times Mr. Finestone treated her "like a queen". He used the proceeds from pimping out J.D. to pay for a nice hotel room, drugs and luxury items for Ms. Robitaille. I am well aware that these posts do not necessarily mean that Ms. Robitaille was not abused by Mr. Finestone, but it does make it less likely that he was her most abusive pimp. I do accept that Ms. Robitaille was under Mr. Finestone's control and that she was being exploited by him at the time she committed the offences before the court. The controlling nature of the relationship was best best articulated by J.D. in her victim impact statement. She wrote "He [Sage] also made comments that he would get his name tattooed on myself and Natasha as we 'belonged to him'".

[35] At the time of the offences, Ms. Robitaille was in love with Mr. Finestone and just, months earlier, transitioned from being a child sex worker to being an adult sex worker. Ms. Robitaille testified that she wanted Mr. Finestone's approval and attention. She was prepared to do what he asked in order to get his love and affection. According to Dr. Martin, a psychologist that assessed Ms. Robitaille prior to her sentencing hearing, given the trauma from her past, and her need to be loved and adored by Mr. Finestone, Ms. Robitaille was unable to empathize with her victims. She was only able to see them as her competition. According to Dr. Martin, Ms. Robitaille's prior history of sexual abuse and victimization in the sex trade interfered with Ms. Robitaille's judgment. Dr. Martin wrote that Ms. Robitaille's life events "shaped her worldview and her view of herself. The shame and humiliation from being raped were compounded by her experiences as a prostitute, likely leaving her feeling helpless, rejected and lacking in worth and efficacy. It appears as though Ms. Robitaille turned to anger and aggression as a way to protect herself both physically and emotionally, and eventually to substances to numb the pain. Poor impulse control, deficient skills to manage frustration and negative emotions, and immaturity led to poor judgments along the way, unfortunately resulting in her current circumstances."

[36] While Ms. Robitaille's motivation was clearly related to her past trauma and sexual exploitation as a young person, there is also evidence that part of Ms. Robitaille's motivation for committing these offences was the desire to have nice things. After meeting Mr. Finestone, Ms. Robitaille posted a number of comments on her social media sites indicating her love of living the "high life". Ms. Robitaille spoke of being "in the money" and living "like a queen". I appreciate that this was not the sole motivation for Ms. Robitaille's actions, but it was clearly a contributing motivator.

[37] On all the evidence Mr. Finestone was the lead actor in these offences and was exerting control over Ms. Robitaille and exploiting her while she committed the offences that are presently before the court. Mr. Finestone continued to be Ms. Robitaille's pimp and he continued to take all the money obtained through the sex trade work of Ms. Robitaille, C.S. and J.D. While Mr. Finestone did spend some of this money on purchasing items for Ms. Robitaille, including luxury items, it was Mr. Finestone who controlled the purchases. Mr. Finestone's control over Ms. Robitaille was even evident at the time of her arrest. During the arrest, Ms. Robitaille was about to provide some information to the police. She abruptly stopped talking the moment Mr. Finestone stated, "hey remember what we talked about".

[38] Additional evidence of Mr. Finestone's manipulation and control over Ms. Robitaille comes from Mr. Finestone's text messages. Mr. Finestone wrote about being the person in the control and that it is all a "head game".

Events while on Release

[39] Ms. Robitaille spent one month in jail before being released on bail. While in custody, Ms. Robitaille suffered from withdrawal. Her symptoms included nausea, vomiting, fever and chills. Her pre-trial custody was also made more difficult due to the publicity around her charges and the nature of her offences. She was targeted by other inmates and at times placed in protective custody.

[40] On March 23, 2015, Ms. Robitaille was released on bail. While on bail she lived with her parents and re-established her relationship with her family. A number of letters were filed with the court from members of Ms. Robitaille's family. All the letters speak of extensive positive gains Ms. Robitaille has made while on release and the joys of reconnecting with her.

[41] While on release, Ms. Robitaille was able to obtain employment. Initially Ms. Robitaille obtained employment as a cleaner and then started her own cleaning company with a friend. She stopped this employment prior to her sentencing as it was unable to make a living off of it. Ms. Robitaille then started working as a personal trainer, but lost the job because of the media attention associated with her arrest.

[42] Ms. Robitaille also attempted to upgrade her education but left the program once her classmates learned of her offences. Her classmates made numerous disparaging comments including that she should be rotting in jail. As a result of this, Ms. Robitaille chose to drop out of her program. She has re-applied to start again in September 2018.

[43] Ms. Robitaille, over time stopped abusing drugs and alcohol and has started counselling. While Ms. Robitaille did not enter counselling immediately upon her release from custody, her insight and understanding of her need for outside assistance developed over time. At the time of her sentencing hearing she had been assessed by Dr. Martin and had entered into a 16 week rehabilitation program through "the gatehouse" that was focused on assisting Ms. Robitaille with her past trauma and ongoing issues. Ms. Robitaille appears committed to this process. Her family notes that Ms. Robitaille has not been abusing drugs and has gained insight into her offending conduct.

[44] Ms. Robitaille testified that she has no intention to returning to the sex trade. This work made her feel disgusting and ashamed of herself. Her intention, once this matter is completed is to complete high school, study health and nutrition in college so that she work in nutrition for body builders.

Mental Health Assessment

[45] Dr. Erica Martin wrote a report about Ms. Robitaille that was filed with the court. She also testified at the sentencing hearing. Much of Dr. Martin's report is based on Ms. Robitaille's self-report. As previously noted, Ms. Robitaille's self-reports about the timing of different events and the amount of time she worked in the sex trade is not reliable. Having said that, it is clear that Ms. Robitaille worked in the sex trade for some time while under the age of 18, that she was sexually victimized on more than one occasion, that she was psychically abused by some of her pimps and that she still working as a sex trade worker for Mr. Finestone at the time that she committed the offences outlined above. According to Dr. Martin, despite the ambiguity noted above, she is still confident that her findings in relation to Ms. Robitaille's mental health and treatment needs are accurate and reliable.

[46] As part of her assessment of Ms. Robitaille, Dr. Martin reviewed other psychiatric materials. According to records obtained from the Centre for Addiction and Mental Health (CAMH), Ms. Robitaille was struggling when she was first released from custody. She was depressed and suffering from suicidal ideations. As a result she was referred by her family physician to CAMH for depression, anxiety and substance abuse. Ms. Robitaille had a single consultation on August 5, 2015. She was diagnosed with substance abuse disorder in early remission, unspecified mood disorder, post-traumatic stress disorder and cluster B personality features. A course of medication and psychotherapy were recommended.

[47] Ms. Robitaille was inconsistent with her use of medication and did not attend any psychotherapy sessions at this time. She was also dishonest to her family and friends about her use of substances and about taking her prescribed medication. On October 8, 2015, Ms. Robitaille attempted suicide by intentionally overdosing on Tylenol. As a result, she was admitted to CAMH. She was discharged a short time later. At the time, Ms. Robitaille was not interested in following up with CAMH.

[48] The assessment with Dr. Martin began in August of 2016. By then, Ms. Robitaille's attitude towards treatment and her general mood seems to have changed. Dr. Martin testified that despite the earlier diagnoses by the time she met with Ms. Robitaille she did not meet the DSM-5 criteria for a mood or trauma-related disorder. It was Dr. Martin's opinion that Ms. Robitaille's past traumatic experiences caused Ms. Robitaille to suffer from low self-esteem, a feeling of helplessness and caused her to engage in attention seeking behaviour. This then led to substance abuse issues, poor impulse control and self-loathing.

[49] Dr. Martin conducted many tests on Ms. Robitaille. According to the MMPI-2RF, Ms. Robitaille identified with a number of anti-social features including a tendency to act out when bored, a failure to follow social norms and conventions and juvenile conduct difficulties. Her substance abuse difficulties were noted as well as her risk for suicidal behaviour. Dr. Martin also wrote that Ms. Robitaille endorses a willingness to step on people's toes to get what she wants and has a propensity towards being the centre of attention. Dr. Martin testified that she would not, however, diagnose Ms. Robitaille as having anti-social personality disorder. It was her opinion that while she at times exhibited some of the traits associated with this personality disorder, given her past trauma and her present willingness to change and ability to change, the diagnosis was not appropriate.

[50] In relation to the AQ, a self-report questionnaire designed to assess aggression and anger, Ms. Robitaille presented as experiencing a high level of anger and aggression. Dr. Martin wrote that Ms. Robitaille's profile suggests someone that possesses attitudes of bitterness, social alienation and paranoia. Dr. Martin wrote that Ms. Robitaille's anger may be a defensive strategy for Ms. Robitaille "protecting her from overwhelming feelings of grief or helplessness".

[51] On another self-report questionnaire, the SCID-II-PQ, Ms. Robitaille endorsed several items consistent with cluster B personality traits. According to Dr. Martin, Ms. Robitaille may outgrow this as she matures or they may evolve into a full blown personality disorder if the proper support is not put in place. As noted above, at this time, Dr. Martin did not believe that a diagnosis of any personality disorder was appropriate.

Impact of Incarceration on Ms. Robitaille

[52] According to Dr. Martin, incarceration could have a negative effect on Ms. Robitaille's rehabilitation. She wrote:

Ms. Robitaille noted that she is doing everything in her power to stay out of prison. She worries that if she is incarcerated her "mind will turn to criminal". She reported that it would break her heart and make her want to stop pushing forward. Ms. Robitaille stated, "if you throw me in there after everything I've done I'm obviously worth nothing…why bother doing it the right way?" She further noted that she knows that she is not completely innocent but feels as though she has learned her lesson.

[53] Dr. Martin wrote in her report that if incarcerated, Ms. Robitaille would likely regress with respect to the progress she has made. During cross-examination, Dr. Martin conceded that this opinion was based on her belief that there were insufficient programs in the jail to help Ms. Robitaille. When Dr. Martin was advised of all the programs that do exist in the woman's reformatory, Dr. Martin acknowledged that the jail had many more programs than she originally thought. Dr. Martin maintained, however, that Ms. Robitaille's rehabilitation would be better served through community programs. Dr. Martin testified that, based on her experience with Ontario Review Board, patients tend to respond better to programs while living in the community because they can apply what is learned in programs immediately. Programs received while in custody are harder to apply once released.

[54] Ms. Muller testified about the programs at Vanier, which is the institution that Ms. Robitaille is most likely to be placed. There are a number of programs available for women housed in Vanier. While the programs are more limited to women housed in protective custody, many of the programs are also available to women housed in protective custody.

Issues

[55] Ms. Robitaille faces a minimum sentence of 2 years. Counsel for Ms. Robitaille nonetheless argued that the appropriate sentence in the case at bar is either a suspended sentence or a conditional sentence. In light of this position, counsel argued that both section 286.2(2) of the Criminal Code (which mandates a two year minimum sentence) and section 742.1 (c) of the Criminal Code (which prohibits the imposition of a conditional sentence for the offences before the court) are unconstitutional. Counsel for Ms. Robitaille argued that section 286.2(2) violates both section 12 and section 7 of the Charter and that section 741.2 (c) violates section 7 of the Charter.

[56] Crown counsel urged the court to refuse to entertain the constitutional argument. She argued that the fit sentence for Ms. Robitaille is two years and as a result, given the fact that I cannot declare the section invalid, judicial economy demands that I refuse to entertain the argument. It was the position of the Crown that if I nonetheless decide to engage in an analysis of the constitutionality of the minimum sentence, I should find that all the relevant sections are constitutional.

Should the Court Engage in the Constitutional Analysis?

[57] Provincial court judges have no jurisdiction to make formal declarations that a law is of no force or effect under s.52(1) of the Constitution Act. Provincial court judges do, however, have the authority to determine the constitutional validity of a mandatory minimum sentence when the issue arises in a case they are hearing (R. v. Lloyd, 2016 SCC 13 at para 16). While provincial court judges do have this authority, it is open to the court to refuse to address the constitutional argument where it would have no impact on the offender before the court. McLachlin C.J.C. stated at paragraph 18 of R. v. Lloyd, supra:

To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. But a formalistic approach should be avoided.

[58] It follows, that I must first assess what sentence might be appropriate in the case at bar. If it potentially falls below the mandatory minimum sentence, then, in my view, this court should assess the constitutionality of the provision.

What Range of Sentences Would be Appropriate but for the Mandatory Minimum Sentence?

General Sentencing Principles

[59] I reviewed in detail the general principles of sentencing offenders who sexually exploit children in R. v. Finestone, 2017 ONCJ 22. I will repeat them here because in my view even though Ms. Robitaille was found guilty of different offences, both offences involve the sexual exploitation of young persons. Therefore, in my view, similar principles apply.

[60] The overarching principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is best determined by considering all the aggravating and mitigating factors while keeping in mind the objectives of sentencing which include:

a) General and specific deterrence

b) Denunciation

c) Rehabilitation

d) Reparation to society and/or the victim

e) Separation from society where necessary

f) The need to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.

Generally, the Criminal Code does not place these objectives in any hierarchy of importance. How much weight a sentencing judge places on any given objective will depend on the facts of each case. As our society has become more and more aware of the damaging effects of child sexual abuse, child exploitation and the need to protect children from predators, the criminal justice system has responded. Pursuant to section 718.01 of the Criminal Code, where a person is being sentence for an offence involving the abuse of a person under the age of eighteen years old, primary consideration is to be given to the objectives of denunciation and general deterrence.

[61] In recent years the Appellate courts have consistently maintained that in sentencing child sexual offenders and predators the objectives of general deterrence and denunciation are paramount. In R. v. Woodward, 2011 ONCA 610, Justice Moldaver stated, at paragraph 76:

In so concluding, I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence.

[62] In R. v. D.D., the leading authority in Ontario on sentencing child sexual abuse, the court clearly stated that the focus on sentencing these types of offenders must be on denunciation, deterrence and protection of the public. The court stated at paragraph 34:

The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s.718 (a), (b) and (c) of the Criminal Code, commonly referred to as, denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.

[63] I am mindful that the above cases involved findings of guilt for sexual assaults on a young person which is not the offence before the court. In my view, however, given the age of the victims and the level of exploitation involved in the case at bar, similar principles apply. I further note that Justice Wein in R. v. A.A., [2012] O.J. No. 6526 (S.C.J.) likened pimps to child molesters and abusers. Therefore, in sentencing Ms. Robitaille I must focus primarily on the objectives of deterrence and denunciation.

[64] In assessing the range of sentence to be imposed on Ms. Robitaille, the court must also be mindful of the harm caused by Ms. Robitaille's actions. This is relevant to both the specific inquiry about the appropriate sentence but also to the broader constitutional question. In R. v. Nur, 2013 ONCA 677, affirmed by the Supreme Court of Canada in R. v Nur, 2015 SCC 15, Doherty J. held that in assessing the appropriate sentence, the court must consider the harm targeted by the elements of the crime and the moral culpability required to establish guilt for the crime (paras 83-87). There can be no doubt that severe harm is caused even by the least serious cases of child trafficking. As Warkentin J. held in R. v. Byron, 2014 ONSC 990 at paragraph 36:

All cases of this nature must be taken seriously. Young people must be protected from being trafficked, exploited and abused in this fashion. Sadly, in an era of social media and the use of the internet, the on-line advertisements for sexual services continually victimize those who have been forced into prostitution against their will because it is impossible to remove those images from the internet. This is particularly tragic when the individual is a minor, as was IB

[65] The horrors and evils of prostitution, especially when young persons are involved, are well documented and beyond dispute. As justice Trotter noted at paragraph 10 of R. v. Burton, 2013 ONSC 3021:

The social ills and dangers associated with prostitution and juvenile prostitution in particular, are well-recognized and accepted by social science and reflected in the legal literature.

[66] In light of all these comments, it is clear that the focus of any sentencing for offences arising from the sexual exploitation of children, even the sentencing of youthful first offenders, has to be on denunciation and general deterrence.

[67] There is one additional factor that is highly relevant in assessing the appropriate sentence in the case at bar. Ms. Robitaille was sexually exploited as a young person and while at the time of these offences she was an adult, she was still being sexually exploited. In my view, this places Ms. Robitaille in a very unique position and allows the court to consider her potential and need for rehabilitation in conjunction with deterrence and denunciation.

Aggravating and Mitigating Factors

[68] In R. v. Finestone, supra, I reviewed the aggravating factors relevant to that case. In identifying the relevant aggravating factors, I referred to the cases of R. v. Tang, 1997 ABCA 174, and R. v. Miller, [1997] O.J. No. 3911 (SCJ). While all three of these cases really speak to the sentencing of "traditional pimps" of which Ms. Robtialle is not, they do nonetheless provide a helpful guide in assessing the aggravating facts in the case at bar.

a) Degree of coercion or control by Ms. Robitaille on J.D. and C.S.

[69] The agreed statement of fact states that the victim was forced into prostitution. I note that it was Mr. Finestone who forced J.D. into prostitution. Moreover, it was Mr. Finestone who created the rules and controlled the clients and services. I further note that during the first 5 ½ days of J.D.'s victimization, she was able to come and go from the hotel as she wanted. Ms. Robitaille, did however, exert some control over J.D. in that she instructed J.D. on what to say to customers and how to dress. Moreover, on the day of Ms. Robitaille's arrest, she prevented J.D. from leaving the hotel and took away her means of communication with others so that J.D. could not call for help.

[70] In relation to C.S., Ms. Robitaille encouraged C.S. to engage in prostitution by glamorizing it to her. Ms. Robitaille also instructed C.S. on what to say to clients and how to act. While no physical force was used with C.S., Ms. Robitaille did leave numerous text and phone messages for C.S. to return after she left.

b) The amount of money received by Ms. Robitaille and the victim

[71] The Court was not advised of exactly how much money was made. The agreed statement of fact states that the several thousand dollars was earned over the six days where J.D. was forced into prostitution. This money went to Mr. Finestone who then used it to pay for Ms. Robitaille's hotel room, drugs and other purchases. While Ms. Robitalle did receive some material benefit from J.D.'s and C.S.'s work in the sex trade, it was Mr. Finestone who controlled the money. It was Mr. Finestone who decided how much to spend on Ms. Robitaille for her assistance in the sexual exploitation of C.S. and J.D.

c) The age of the victims and number of victims

[72] There were two victims, aged 14 and 16.

d) The working conditions and health safeguards

[73] In R. v. Finestone, supra, I highlighted the working conditions as follows:

All the sexual acts occurred in a hotel room. Condoms were provided, although on one occasion the victim engaged in sexual intercourse with a customer and a condom was not used. There is no evidence before the court that Mr. Finestone ordered this, knew about it or had any role in it. Mr. Finestone did, however, place advertisements on line for J.D.'s services and did not specify any restrictions. There is no suggestion of any other type of risky behavior (other than the inherent risks attached to prostitution).

I am satisfied, given Ms. Robitaille's role in preparing J.D. to work as a prostitute that Ms. Robitaille was aware of the working conditions and the number of customers J.D. was forced to service.

[74] In relation to C.S., she engaged in a variety of sexual activities with at least four different customers. No other details of her work conditions were relayed to the court.

e) Vulnerability of the victim

[75] J.D. was a young person living in a group home. This, in my view, makes her vulnerable. C.S. was a young person also making her vulnerable.

f) The degree of planning, sophistication and size of organization

[76] In R. v. Finestone, supra, I made the following finding in relation to the sophistication of the organization:

[44] Mr. Finestone worked in conjunction with Ms. Robitaille to pimp out the victim in this case. Ms. Robitaille was a prostitute herself. She was in love with Mr. Finestone and worked for Mr. Finestone. The agreed statement of fact references other people working alongside Mr. Finestone and on one occasion Mr. Finestone issuing a direction to a Mr. Faria (whose girlfriend was also a prostitute) and on another occasion issuing a direction to another person to book a hotel room. Nonetheless, when the agreed statement of fact is considered as a whole, in my view this was a small operation, with little planning involved and was not a sophisticated project.

[77] In relation to Ms. Robitaille, I further note that she was not the leader nor was she the organizer of this enterprise. All of Ms. Robitaille's actions in relation to the two victims were at the direction of Mr. Finestone, a person whom at the same time was exploiting Ms. Robitaille.

g) The duration of the exploitative conduct

[78] The duration of the exploitive conduct of J.D. was six days. During this time J.D. was forced to engage in sexual services with 20-30 men. The duration of the exploitative conduct on C.S. was two days.

h) The degree of violence, if any, apart from that inherent to the pimp's parasitic acts

[79] No explicit threats were made, no implied threats were referenced in the agreed statement of fact and no actual violence was used.

i) The extent inducements were used

[80] No inducements were referenced in the agreed statement of fact.

j) The effect on the victim

[81] As noted above this offence had a huge impact on J.D. She lost her childhood and her innocence. She was violated day and night for six days. While there is no victim impact from C.S., I take judicial notice that she suffered psychological harm.

k) The extent to which the pimp demanded sexual favours from the victim

[82] Ms. Robitaille did not engage in any sexual acts with the victims.

[83] In light of the above facts, it is clear that there are a number of aggravating factors in the case. The aggravating factors can be summarized as follows:

i) Two victims;

ii) The young age and vulnerability of the victims all of which was known to Ms. Robitaille;

iii) The harm suffered by the victims;

iv) The exposure to risk of physical harm (the advertisement did not identify any restrictions);

v) On the day of her arrest, Ms. Robitaille prevented J.D. from leaving the hotel room and took away her cell phone;

vi) Ms. Robitaille attempted to intimidate C.S. by calling and texting her after she left the hotel;

vii) Ms. Robitaille's conduct was partially motivated by greed as is evidenced by her social media postings indicating her enjoyment of the lifestyle she was leading as a result of J.D.'s and C.S.'s exploitation.

[84] Crown counsel highlighted some additional aggravating factors including that Ms. Robitaille received money from the forced sex trade work. In my view this is subsumed in the elements of the offence and is not an additional aggravating factor. I agree that it is aggravating that the victims were prohibited from keeping any of their earnings, but this appears to have been a decision made by Mr. Finestone and not Ms. Robitaille.

[85] There are a number of mitigating factors that this court must consider. They include:

a) Ms. Robitaille is a youthful first offender;

b) Ms. Robitaille is a victim of child sexual abuse;

c) Ms. Robitaille was a child prostitute herself;

d) Ms. Robitaille was still working as a prostitute for Mr. Finestone when she committed these offences and was still being exploited by him;

e) Ms. Robitaille was abused both emotionally and physically by Mr. Finestone;

f) Ms. Robitaille is remorseful for her conduct;

g) Ms. Robitaille is taking responsibility for her actions;

h) Ms. Robitaille has entered a plea of guilty;

i) While Ms. Robitaille did not initially attend any counselling, in the months leading up to her sentencing, Ms. Robitaille has started to engage in counselling;

j) Ms. Robitaille has actively sought to upgrade her education and has attempted to secure meaningful employment;

k) Ms. Robitaille suffers from addictions to numerous drugs and has worked hard to address these addictions;

l) Ms. Robitaille has strong family support;

m) Ms. Robitaille has very good rehabilitative prospects; and,

n) There is some evidence that Ms. Robitaille was suffering from PTSD and other issues at the time that she committed these offences (as was found by the doctors at CAMH shortly after Ms. Robitaille's arrest but was no longer present by the time she saw Dr. Martin).

[86] In addition to these mitigating factors, defence counsel also urged the court to find that Ms. Robitaille's bail conditions are a mitigating factor in that she was on a relatively restrictive bail. Counsel did not, however, argue that the court should give Ms. Robitaille pre-trial custody credit for her bail conditions. Crown counsel argued that since Ms. Robitaille benefited from her release terms in that she was able to take steps to improve herself, it is not properly a mitigating factor. In my view, for the same reasons I articulated in R. v. Finestone, supra, I do not think that Ms. Robitaille should obtain pre-trial custody credit for her bail conditions. It is mitigating, however, that Ms. Robitaille was able to turn her life around so completely during the two years that she was on release pending her sentencing in this matter.

Range of Sentences Normally Imposed

[87] It is exceptionally difficult to identify a range of sentence for this offence for two of reasons. Firstly, the offence is relatively new so there is very little judicial application of it, albeit the offence is similar to older provisions in the Criminal Code. Secondly, there are some very unique factors in this case including that Ms. Robitaille was also a victim of child prostitution, had only recently come of age at the time of the offence and was still being exploited by her pimp when she committed these offences.

[88] In my view, the starting point is to compare the offence as committed by Ms. Robitaille to the three categories of offenders found guilty of living of the avails of a sex trade worker identified by Justice Hill in R. v. Miller, [1997] O.J. No. 3911 (SCJ). Hill J. stated, at paragraph 39:

The court, in Tang, noted the usefulness of the guideline categorization of the living off the avails offence by Dr. D.A. Thomas, Principles of Sentencing, 2nd ed. (1970) at pp. 130-3:

In the first:

Sentences within the bracket of four to five years are usually approved where the offender has coerced the woman concerned into becoming or remaining a prostitute, and has exercised a significant degree of control over her activities.

In the second category:

Where the element of coercion is lacking but the offender relies on the earnings of the woman as his main source of income, the appropriate sentence is more likely to be within the range of two or three years imprisonment.

In the third category:

Sentences in the lowest bracket, between twelve and eighteen months imprisonment, are likely to be found where the offender receives money from the woman concerned but the relationship cannot be characterized as one of exploitation.

[89] Looking at these categories, it is easy to understand the appropriateness of a two year minimum sentence for the offence of receiving a material benefit from the sexual services of a child. One might even argue that in the vast majority of cases two years may be too low of a sentence. These categories, however, in my view were meant to apply to the more "traditional" pimp and do not easily translate to Mr. Robitaille's unique situation. Ms. Robitaille is not a traditional pimp or "madam". While being exploited herself, Ms. Robitaille assisted her pimp in the exploitation of two young girls and received a material benefit from her pimp out of his proceeds as a reward or benefit for assisting him.

[90] It is helpful to look at the actual sentence imposed in Miller. In that case, Justice Hill imposed a 22 month sentence. In some respects the facts in Miller are more aggravating in that Mr. Miller was a traditional pimp, he had many victims, the offending conduct lasted well over a year and he used violence on some of his victims. The facts in the case at bar are more aggravating in that the victims are young and vulnerable.

[91] In R. v. Badali, 2016 ONSC 788 (SCJ), after declaring that the minimum sentence for the offence of living off the avails of prostitution was unconstitutional, Justice Glass imposed a 2 year sentence for living off the avails of a child sex trade worker (in actuality a sentence of three years was imposed as he received a one year sentence to be served consecutively for engaging in a sexual act with the 16 year old victim). The trial judge found, after a trial, that Mr. Badali procured a 16 year old into prostitution with the promise of money, he took a portion of her earnings and fined his victims if they were late for work or failed to clean their rooms as he saw fit. He did not, however, dictate the kinds of services the victims must provide. Furthermore, it appears that the trial judge accepted that the victim told Mr. Badali that she was 19 years old. The police discovered the offence after the young victim had been working for Mr. Badali for three days. In upholding the sentence the Court of Appeal commented on the youthful age of the victim, the fact that Mr. Badali procured her into engaging in prostitution and that Mr. Badali had a criminal record that included convictions for forcible confinement extortion and uttering threats (R. v. Badali, [2016] O.J. No. 4799 (CA)). It is difficult to conclude that Ms. Robitaille and Mr. Badali should receive the same sentence given the absence of the mitigating factors in Badali that exist in the case at the bar and the presence of aggravating factors in Badali that are not present in this case (including that Mr. Badali was the lead perpetrator, used a high level of coercion and aggression).

[92] In R. v. J.L., 2016 ONCJ 594 (OCJ), Justice Stribopoulos imposed a sentence of six months deferred custody followed by two years of probation on a young person whom was only one year younger than Ms. Robitaille when he pimped out two under aged girls. It is important to note that the principles of sentencing under the Youth Criminal Justice Act are significantly different than the principles of sentencing in the Criminal Code. These differences justify imposing very different sentences on young persons than on adults. While Ms. Robitaille was only 18 at the time of her offences, she must still be treated as an adult offender.

[93] In R. v. Hargreaves, 2016 QCCQ 1943, a conditional sentence of two years less a day was imposed for similar offences for which Ms. Robitaille is being sentenced. Ms. Hargreaves, like Ms. Robitaille was a sex trade worker at the time that she committed these offences, was addicted to alcohol and drugs and had taken positive steps towards her own rehabilitation at the time of sentence. The key distinction between Ms. Hargreaves and Ms. Robitaille is that Ms. Hargreave's victims were adults. It is significantly more aggravating that the victims in this case were 14 and 16 years old. It is difficult to draw any other real comparisons between the two cases because there are so few details about the actual offending behaviour included in the Hargreaves judgment.

Application to the Case at Bar

[94] In my view, the most complicated aspect of this sentencing is identifying and articulating Ms. Robitaille's level of moral blameworthiness. In making this assessment, I must give her own victimization sufficient weight while also taking into account and giving proper consideration to the serious nature of these offences and the harm caused to her victims.

[95] There are many factors that substantially reduce Ms. Robitaille's own moral culpability. Much like the addict trafficker, Ms. Robitaille is best described as an offending victim. That is, Ms. Robitaille was a victim of sexual exploitation herself and was still being victimized when she committed the offences that are before the court. Mr. Menchynski, on behalf of Ms. Robitaille argued that this was a significant mitigating factor such that a non-custodial sentence should be imposed. Crown counsel, Ms. Moskovitz, who throughout the entire proceeding displayed compassion for Ms. Robitaille, argued that while Ms. Robitaille's past is meaningful and relevant, being an offending victim is not unique to Ms. Robitaille and should not play too significant of a role in deciding the appropriate sentence. Ms. Moskovitz argued that it is because Ms. Robitaille is a victim herself that she is only asking for the minimum sentence as opposed to the much higher penalty that would otherwise be necessary given all the aggravating facts in this case.

[96] Ms. Moskovitz is correct. So many offenders seen in our courts have a long history of victimization and this victimization can easily be linked to their substance abuse issues and their ongoing conflict with the law. It is my view, however, that Ms. Robitaille' s situation is unique in that she was in the midst of her own victimization at the time she committed the offences before the court. There was no meaningful gap in time between her exploitation and the commission of her offences. Ms. Robitaille was a child sex worker. On the day she turned 18 she became an adult sex worker. She was still the same person, with the same vulnerabilities, only one day older. She never had space or time to step away from her victimization as a sex trade worker to evaluate and gain insight into her conduct. By turning 18, Ms. Robitaille did not all of a sudden cease to be vulnerable. Her exploitation continued and was ongoing and still taking place at the time that she committed these offences.

[97] There is no doubt, that Ms. Robitaille had power in relation to J.D. and C.S. There is also no doubt that she made the decision to work for Mr. Finestone and to help Mr. Finestone pimp out these two young girls. That decision, however, was made while she was still being exploited herself. She moved from one exploitative relationship to another. In my view, this context reduces Ms. Robitaille's moral culpability. It does not, however, absolve Ms. Robitaille of all responsibility for her actions. Moreover, I note that it is clear by Ms. Robitaille's own admission in court that part of her motivation to comply with Mr. Finestone was because she was enjoying the financial benefits of working for Mr. Finestone.

[98] In my view, imposing the same sentence on Ms. Robitaille as was imposed on Mr. Badali and Mr. Miller would not be a just sentence. Ms. Robitaille's moral blameworthiness is substantially lower than both Mr. Badali and Mr. Miller. It therefore stands to reason that a sentence substantially less than 22 months would be appropriate in this case.

[99] What sentence then gives proper weight to the mitigating factors highlighted above while also properly taking into account the need to deter and denounce offenders that sexually exploit children? There are a number of factors that weigh heavily in favour of a community based sentence either by way of a suspended sentence or a conditional sentence. Ms. Robitaille was sexually exploited when she was a young person. Her addiction, low self-esteem and prior sexual abuse made her more vulnerable to exploitation and led to Ms. Robitaille being victimized by a number of different people. At the time that she committed the two offences before the court, she was still being exploited as she was still being pimped out by Mr. Finestone. Her continued victimization coupled with her desire to please her pimp and be his number one substantially contributed to Ms. Robitaille's decision to assist Mr. Finestone in pimping out C.S. and J.D. Moreover, since her arrest, Ms. Robitaille has gained insight into her conduct, has re-connected with her family and is getting treatment. She is clearly on a path of recovery.

[100] There are also many factors that support a custodial sentence of some magnitude. These include the young age of the victims, their vulnerability, the level of control employed by Ms. Robitaille during J.D.'s last hours working for her and Mr. Finestone and the fact that one of Ms. Robitaille's motivations for committing these offences was the receipt of financial rewards. I further note that there were times when Ms. Robitaille could have left the sex trade, in particular when she was dating J.F. I must also keep in mind the importance of the need to deter and denounce this kind of criminal and harmful behaviour.

[101] When I consider all the factors highlighted above, in my view a sentence of eight months incarceration is appropriate. A sentence of eight months to some may seem very lenient when one takes into account the aggravating factors highlighted above. Ms. Robitaille had the capacity to make her own decisions and she decided to engage in conduct that was extremely harmful to vulnerable young people. The court, however, must look at all the factors relevant to this case including how her own victimization and exploitation impacted her ability to make decisions. In my view a sentence of eight months properly reflects Ms. Robitaille's unique circumstances and the harm she has caused to others. But for her unique circumstances, a sentence higher than then the minimum sentence of two years would have been appropriate. The courts must send a loud message to the public that the courts will not tolerate the sexual exploitation of children. In my view, the eight month sentence imposed in the case at bar does not detract from that message. Instead, it reflects the courts ability to take into account the impact of childhood sexual exploitation on the young adults that are now before the court as offenders, in particular where that offender is still being sexually exploited by her pimp.

[102] To some, an eight month sentence for an offender who has been extensively victimized herself may seem overly harsh. The court, however, cannot endorse a sentencing model that completely excuses behaviour that is extremely harmful to others because the offender has suffered or been victimized. Meaningful sentences must still be imposed that properly consider the harm caused by the offender in addition to the offender's personal circumstances. In my view, a sentence of eight month incarceration is of sufficient length to act as deterrent to Ms. Robitaille and other offenders similarly situated while also taking into account Ms. Robitaille's reduced moral blameworthiness, her positive steps while on release and her admission of guilt.

[103] Counsel for Ms. Robitaille argued that if the court concluded that a further period of incarceration should be imposed, it should be served in the community by way of a conditional sentence. Conditional sentences were introduced in Canada as part of Bill C-41 reforms. The model was described by the Supreme Court of Canada in R. v. Proulx, 2000 SCC 5, as follows, at paragraphs 21-22:

The conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders. The offenders who meet the criteria of s. 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. These offenders' liberty will be constrained by conditions to be attached to the sentence, as set out in s. 742.3 of the Code. In case of breach of conditions, the offender will be brought back before a judge, pursuant to s. 742.6. If an offender cannot provide a reasonable excuse for breaching the conditions of his or her sentence, the judge may order him or her to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence.

[104] Under the original provisions, conditional sentences were not available for all offences, the provision included a list of serious violent offences where a conditional sentence could not be imposed. Since 1996, there has been a tremendous claw back in relation to when a judge can impose a conditional sentence. In 2007 with Bill C-9, conditional sentences became unavailable for any personal injury offence where the crown proceeded by indictment as well a host of other offences. In 2012, with Bill C-10, the conditional sentences were further restricted in that a conditional sentence could not be granted where the offence has a maximum term of 14 years or life as well as a number of other offenses.

[105] In my view, a conditional sentence would not be appropriate in the case at bar. The gravity of the offence is such that a period of real incarceration is absolutely necessary. In my view, a conditional sentence fails to take into account the aggravating factors highlighted above. A conditional sentence, while helpful to Ms. Robitaille's rehabilitation will not properly address the objectives of deterrence and denunciation.

[106] In support of her request for a community based sentence, counsel argued that placing Ms. Robitaille in jail will be counter-productive, harm Ms. Robitaille and interfere with her rehabilitation. It is important to remember that while sentencing must take into account the individual offender, there are often broader societal factors that must also be considered. As previously noted, given the nature of the offences before the court denunciation and deterrence must be primary considerations. Where possible these two objectives should not work against someone's rehabilitation. There will be times, however, where an offender's rehabilitative needs are best met in the community but the facts of the offence are sufficiently troubling to demand a period of incarceration. In these cases, the offender's immediate rehabilitative needs may have to take a back seat to the other objectives of sentencing.

[107] One of the concerns expressed by both Ms. Robitaille and Dr. Martin during this sentencing hearing is that Ms. Robitaille has done all she can to move forward productively and avoid a jail sentence. To sentence her to prison now would cause her to "lose heart" and cause her to stop trying to move forward. I really hope for Ms. Robitaille's sake that this is not true. It is clear to me that Ms. Robitaille has made substantial gains over the past two years. Ms. Robitaille should be proud of the steps she has taken and of all the gains she has made. A sentence of incarceration is not a statement by this court that Ms. Robitaille has failed in her attempts to change her path, it is a statement about the gravity of the offence which was committed two years ago. I am also hopeful that Ms. Robitaille did not just take all the positive steps she has taken in order to appease the court and obtain a lower sentence. I have found that Ms. Robitaille is truly remorseful for her actions and has truly learned from her mistakes. Given this finding, I am confident that Ms. Robitaille took many of the positive steps identified in court in order to better her own life and make her own life more fulfilling.

[108] The second argument put forward by counsel in support of a community based disposition is that there will be less programs available in jail than what is available in the community. Ms. Muller testified at the sentencing hearing about the different programs in jail. On her evidence there are plenty of programs available to Ms. Robitaille, even if she is placed in protective custody. There is insufficient evidence before the court for me to conclude that Ms. Robitaille's rehabilitative needs will not be met in custody. It may be that Ms. Robitaille's rehabilitation is best addressed in the community, but that is different from her needs not being met at all. In my view, this factor is not a basis to impose what would otherwise be an unfit sentence.

[109] In light of the fact that but for the minimum sentence, I would have imposed a sentence of eight months incarceration, I must now consider whether or not section 286.2(2) of the Criminal Code is constitutional. Having found that a conditional sentence is not appropriate, it is unnecessary for me to consider the constitutionality of section 742.1 (c) of the Criminal Code.

Test for Infringement of Section 12 of the Charter

[110] As stated in R. v. Finestone, supra, the courts have set a very high bar for what types of sentences constitute cruel and unusual punishment. A mandatory minimum sentence will only be considered cruel and unusual punishment and therefore violate section 12 of the Charter where the minimum sentence is grossly disproportionate to the offence and its circumstances.

[111] Grossly disproportionate is a high standard. To be considered grossly disproportionate, the sentence "must be more than merely excessive. The sentence must be 'so excessive as to outrage standards of decency: and disproportionate to the extent that Canadians would find the punishment abhorrent or intolerable". (See R. v. Ferguson, 2008 SCC 6 at para 14). The court "should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation" (see R. v. Nur, 2015 SCC 15 at para 39).

[112] In R. v. Lloyd, 2016 SCC 13 at para 45, the Supreme Court of Canada stated:

It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment. While the final judgment as to whether a punishment exceeds constitutional limits set out by the Charter is properly a judicial function, the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency.

In R. v. Morrissey, 2000 SCC 39 at paragraph 26, the Court stated:

Where a punishment is merely disproportionate, no remedy can be found under section 12. Rather, the court must be satisfied that the punishment imposed is grossly disproportionate for the offender, such that Canadians would find the punishment abhorrent or intolerable. As I said in Goltz, at p. 501, "the test is not one which is quick to invalidate sentences crafted by legislators

[113] All these cases make it very clear that the standard for gross disproportionality is a stringent one. This is necessary because it is not the place of a trial judge to second guess the wisdom of Parliament. There is a strong argument that judges should be ever more hesitant about finding mandatory minimum sentences as they relate to offences involving sexual violence against children unconstitutional. This is because the objectives of mandatory minimums mirror the general objectives of sentencing such offenders. The appellate courts have consistently held that in sentencing offenders who sexually abuse young persons the objectives of deterrence and denunciation are paramount. Similarly, mandatory minimum sentences highlight the objectives of deterrence and denunciation over other objectives of sentencing. McLachlan C.J.C. stated in R. v. Nur, supra, at para. 44:

Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of the sentencing range. They may, in extreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality. They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result. They affect the outcome of the sentence by changing the normal judicial process of sentencing,

[114] If personal circumstances and other objectives of sentencing play a lesser role in sentencing child sexual offenders, then it is less likely that a mandatory minimum sentence for such offences will be unconstitutional.

Is the Sentence I Would Impose on Ms. Robitaille Grossly Disproportionate to the Mandatory Minimum?

[115] The first step in assessing whether section 286.2(2) of the Criminal Code violates section 12 of the Charter, is to determine whether the sentence I would have otherwise found to be a fit and proportionate sentence is grossly disproportionate to the 2 year mandatory minimum sentence. As I noted above, absent the minimum sentence, a sentence in the range of eight months would be imposed. In my view, this would be grossly disproportionate. The mandatory minimum in the case at bar, but for pre-trial custody, would demand a penitentiary sentence. It is well recognized that there are some significant differences between a reformatory and penitentiary sentence. Penitentiary sentences are generally reserved for the most serious offenders or offences. Moreover, a two year sentence is triple the sentence I would have imposed. These two factors lead me to conclude that the mandatory minimum sentence is grossly disproportionate to the facts of this offence and the circumstances of this offender.

Reasonable Hypothetical

[116] Despite my above finding, out of an abundance of caution I will nonetheless turn my mind to the reasonable hypotheticals proposed by counsel. The inquiry under this stage, must focus on "reasonable hypothetical circumstances, as opposed to far-fetched or marginally imaginable cases" (R. v. Nur, supra, at para 54). To be a reasonable hypothetical, the fact pattern suggested must be a "reasonably foreseeable situation where the impugned law may apply" (R. v. Nur, supra, at para 58). The court looks to facts that can reasonably arise and will reasonably be caught by the section. McLachlan C.J.C. stated in R. v. Nur, supra, at para 68:

The reasonable foreseeability test is not confined to situations that are likely to arise in the general day-to-day application of the law. Rather, it asks what situations may reasonably arise. It targets circumstances that are foreseeably captured by the minimum conduct caught by the offence. Only situations that are "remote" or "far-fetched" are excluded

[117] In looking at a reasonable hypothetical, I will consider a modified version of the hypothetical put forward by Mr. Menchynski. In my view, this modified version of his hypothetical is simpler, more realistic and addresses the concerns raised by Ms. Moskovitz about the validity of the original hypothetical. This modified hypothetical involves an offender whom just turned 18 in the days preceding the offence. According to the hypothetical, the offender is a sex trade worker herself, suffering from addictions and a history of sexual abuse. The offender's pimp takes 50% of the money she earns and also deducts the costs of living from her income. The victim, a runaway and two months shy of her 18th birthday starts to work for the offender's pimp in order to make some money. The offender's pimp instructs her to teach the victim the rules of the trade and to help purchase the victim clothing. In return, the offender is given 10% of all of the victim's earnings. Two days later, the victim's family locates victim, the police are called and the offender and her pimp are arrested. The victim advises that she serviced three clients over the two days all of which were hand job. As promised, the offender received 10% of the victim's earnings. In law, the offender has committed an offence.

[118] In my view, this is a reasonable fact scenario. In some ways it bears a strong resemblance to the case at bar except that it includes some additional mitigating factors and has fewer aggravating factors. In my view, the limited role the offender is playing in the victim's prostitution, the limited financial benefit she is receiving and the closeness in age between the victim and the offender all serve to diminish the culpability of the offender. Moreover, her dual status as a victim offender is more relevant here given her very limited involvement in the exploitation of her victim. In my view a two year sentence for this offence would be grossly disproportionate.

[119] The second fact scenario proposed by Mr. Menchynski is a variation on the Badali case. In that scenario, the offender, who has just turned 18 is running an escort service that does not involve any exploitation, violence, intimidation or manipulation. The offender meets the 17 year old victim and encourages her to work in the sex trade industry. She is arrested a short time later. Respectfully, I have a harder time accepting that this is a reasonable hypothetical. Firstly, it is hard to envision the average 18 year old running such a business. Secondly, it is difficult to fully envision an owner of an escort service hiring a young person to work as a sex trade worker without there being some kind of exploitation involved. I am not saying that it is impossible, it just seems sufficiently unlikely so as to not warrant consideration in the case at bar. Finally, running a larger scale escort service that pimps out persons under the age of 18 is, in my view, a very serious offence and arguably would require a sentence of two years.

Section 1

[120] The court was advised by Crown counsel that should this court find that the minimum sentence in question violated section 12 of the Charter, she would not be calling any further evidence nor did she want the opportunity to make further submissions on this point. In my view the section 1 analysis in the case at bar is similar to the analysis I underwent in R. v. Finestone, supra. I appreciate that different sections of the Criminal Code were at play, but in my view the underlying purpose and objectives of the two provisions is effectively the same.

[121] Pursuant to section 1 of the Charter, a law that violates of the charter will nonetheless prevail where the Attorney-General establishes that the law has a pressing and substantial objective and that the law is proportional to that objective. McLachlan C.J.C. stated in R. v. Nur, supra, at para 111:

A law is proportionate if (1) the means adopted are rationally connected to that objective; (2) it is minimally impairing of the right in question; and (3) there is proportionality between the deleterious and salutary effects of the law: R. v. Oakes. It will be difficult to show that a mandatory minimum sentence that has been found to be grossly disproportionate under s.12 is proportionate as between the deleterious and salutary effects of the law under s.1

[122] In the case at bar, there can be no doubt that there is a pressing and substantial objective. Protecting young people from the predatory and exploitative conduct of others is a pressing and substantial objective. Similarly, there is a rational connection between the objective and the legislation. As was noted in R. v. Nur, "Despite the frailty of the connection between deterrence and mandatory minimum sentence provisions, a rational connection exists between mandatory minimum terms of imprisonment and the goals of denunciation and retribution" (at paragraph 115).

[123] In relation to the second prong of proportionality which is minimal impairment, at this stage the court must ask "whether there are less harmful means of achieving the legislative goal" (R. v. Nur, supra, at para 116). In my view the law at stake in the case at bar suffers from the same frailty as the legislation in issue in the Nur case. Section 286.2(2) has a wide scope and includes a range of conduct where the conduct at the lower end of the range that is captured does not require a sentence of two years to address the objective. In this case, as in Nur, Parliament could have achieved its objective by drafting an offence with a closer correspondence between conduct attracting significant moral blameworthiness and the minimum sentence.

[124] With respect to the third prong, in light of my decision that the section provides for a grossly disproportionate sentence for many offences captured under the section, it cannot be said that there is proportionality between the deleterious and salutary effects of the law. I therefore find that the provision cannot be saved by section 1 of the Charter.

[125] As a judge of the Ontario Court of Justice, I have no jurisdiction to declare the mandatory minimum sentence unconstitutional under section 52 of the Constitution Act, but, having found the law unconstitutional I need not apply the minimum sentence.

[126] In light of my finding that section 286.2(2) of the Criminal Code violates section 12 of the Charter, I need not address the section 7 argument.

The Sentence

[127] As noted above, in my view the appropriate sentence in the case at bar is eight months incarceration, concurrent on both counts. Ms. Robitaille spent one month in pre-trial custody. Properly credited for this time, at 1.5:1, six and a half months are left remaining in her sentence. In light of Ms. Robitaille's need for assistance with her rehabilitation, Ms. Robitaille will be placed on probation for two years following her release from custody with the following terms:

a) to report to probation within two working days of her release from custody and thereafter as directed by her probation officer;

b) to attend counselling to address her ongoing mental health issues and her addictions;

c) Ms. Robitaille is to sign all necessary released so probation can monitor compliance with this term;

d) Ms. Robitaille is to have no contact with Mr. Finestone, J.D. and C.S.;

e) Ms. Robitaille is not engage in any employment or volunteer activities where she is in a position of trust or authority over persons under the age of 16;

f) Ms. Robitaille is not to possess any weapons as defined by the Criminal Code; and,

g) Ms. Robitaille is to seek and maintain employment or attend school;

[128] In addition to the term of imprisonment, the following additional orders will apply:

i) A DNA order;

ii) An order under section 109 of the Criminal Code for 10 years; and,

iii) A SOIRA order for life.

Released November 16, 2017

Justice Mara Greene