WARNING

The court hearing this matter directs that the following notice 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: 2019-04-10

Court File No.: Peterborough 171440

Between:

Her Majesty the Queen

— and —

Elsa Johnson

Before: Justice S. W. Konyer

Heard on: March 20, April 12, 13, 24, May 29, July 6, August 17, 2018, and April 1, 2019

Reasons for Judgment released: April 10, 2019

Counsel:

• Ms. A. Kok — counsel for the Crown
• Mr. T. Burgis — counsel for the accused Elsa Johnson

REASONS FOR JUDGMENT

KONYER J.:

Introduction

[1] On August 17, 2018, I found Ms. Johnson guilty of being an occupant of a hotel room while knowingly permitting two 15 year old females to use the room for acts of prostitution, contrary to section 171 of the Criminal Code. The Crown proceeded by indictment against Ms. Johnson, which means that she is subject to a mandatory minimum sentence of 12 months jail. Ms. Johnson claims that the mandatory minimum sentence violates her right to be free from cruel and unusual punishment. She is guaranteed this right under section 12 of the Canadian Charter of Rights and Freedoms. If Ms. Johnson is correct, then the mandatory minimum sentence will not apply in her case. The Crown says that there is a high test to show that a mandatory minimum sentence violates s.12 of the Charter, and that Ms. Johnson has not met that test. What follows are my reasons for how I have decided this issue.

The Sentencing Principles

[2] The fundamental duty of a sentencing judge is to impose a proportionate sentence: see R. v. Ipeelee, 2012 SCC 13, at paras. 37 and 75; R. v. Lacasse, 2015 SCC 64, at para. 54. A proportionate sentence is one that fits with the seriousness of the crime that has been committed, the harm caused by that crime to the victims and the community, and the degree of moral responsibility of the offender who committed the crime. Finding the proper sentence in any case is therefore a very individualized process, since no two crimes and no two offenders will be the same. There is no doubt that mandatory minimum sentences will often not be proportionate because they limit the sentencing judge's ability to tailor the sentence to the individual circumstances of the case. In some cases, the mandatory minimum sentence will be disproportionately harsh.

[3] The Supreme Court of Canada recognized this reality in R. v. Nur, 2015 SCC 15, 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 the court 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.

The Gross Disproportionality Test

[4] The fact that a mandatory minimum sentence would be disproportionate in the case of the particular offender, however, is not enough to find that the sentence infringes s.12 of the Charter. To make out a s.12 breach, Ms. Johnson must prove that the mandatory minimum sentence in her case would be "grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender": Nur, supra, at para. 39. It is not enough that the sentence would be merely excessive or disproportionate – a s.12 infringement will only occur if the mandatory minimum sentence is grossly disproportionate. This can mean that imposing the mandatory minimum would be grossly disproportionate in Ms. Johnson's case, or in another reasonably foreseeable case. I will limit my analysis to a consideration of Ms. Johnson's case only, since this will be enough to allow me to decide the issue.

[5] If I determine that imposing the mandatory minimum sentence of 12 months jail would be grossly disproportionate in Ms. Johnson's case, then she will have proven a breach of s.12 of the Charter. If there is a breach, the Crown is not seeking to justify it under s.1 of the Charter, and the parties agree that the appropriate remedy is for me not to apply the mandatory minimum sentence to Ms. Johnson.

Determining a Fit Sentence

[6] To decide this issue, I must first decide what would be a fit sentence for Ms. Johnson without the mandatory minimum. Then I must compare that sentence to the mandatory minimum to decide if it is grossly disproportionate to the sentence that would otherwise be proper.

[7] The sentence for Ms. Johnson should be tailored to fit the seriousness of the offence she committed, her role in that offence, the harm caused by her conduct, and her level of moral responsibility for her conduct. To assess her level of responsibility, I must take into account her background and the circumstances that led to her committing this offence. I must do my best to impose a sentence that condemns her unlawful conduct, that will deter her and others, that will promote her rehabilitation, that will repair some of the harm done to the victims or the community, and that will promote a sense of responsibility in Ms. Johnson. I must consider all reasonable alternatives to a jail sentence. If a period of jail is required to achieve these goals, then I must use restraint and impose the shortest possible period of jail that is likely to accomplish these goals. The sentence should also be on par with sentences imposed on similar offenders in similar circumstances.

The Offence and the Offender's Role

[8] There is no doubt that the offence committed by Ms. Johnson is serious. She aided in the sexual exploitation of two teenagers, S.F. and K.M. They were each 15 years old, had run away from home and set up a prostitution business in a hotel room at the Motel 6 in Peterborough. They were assisted in this business by a number of adult males, including Lennox Gray-Lewis, who was charged jointly with Ms. Johnson. He was also charged with a number of other prostitution-related offences. I found Mr. Gray-Lewis guilty on the joint charge with Ms. Johnson, and also guilty of the offence of receiving a financial benefit from the sexual exploitation of S.F. and K.M. He was sentenced for his role on September 6, 2018.

[9] Ms. Johnson was not involved in recruiting or encouraging the victims to enter into the business of prostitution. She only became involved once the girls had already started working out of the Motel 6. Mr. Gray-Lewis, a friend of hers, recruited her because he needed someone to extend the room rental. He was unable to himself because he did not have any valid identification, and the other adults who had been involved had disappeared after the first night. Ms. Johnson, who was 19 at the time, accepted his invitation in part to escape living at home with her parents. She had developed a serious cocaine addiction at the time and struggled to conceal her use from her parents. The stay at the hotel offered her a location where she could freely use cocaine without her parents' knowledge.

[10] It was never disputed that Ms. Johnson knew that the two victims were providing sexual services for money from the same hotel room. Ms. Johnson stayed there with them and Mr. Gray-Lewis for two days. She and Mr. Gray-Lewis left the room on several occasions when customers attended to obtain sexual services for money. I found that Ms. Johnson had good reason to believe that the victims were under the age of 18, and that she failed to take reasonable steps to learn their true ages. She assisted them in getting a room for two days before the police arrested her. She did not receive any money from the sexual services provided by the victims.

The Seriousness of the Offence

[11] The sexual exploitation of young persons is always a serious matter. As Trotter J (as he then was) held in R. v. Burton, 2013 ONSC 3021, at para. 10, "[t]he 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 and Canadian jurisprudence." Ms. Johnson turned a blind eye to the potential harm that could come to S.F. and K.M. by their involvement in juvenile prostitution, and she did so for selfish reasons. Furthermore, as the Crown points out, she did so over the course of two days. She had time to reflect upon the situation, and her own conduct. This was not a mere momentary lapse in judgement, and the offence only stopped when she was arrested.

Victim Impact

[12] I have very little information about the impact of Ms. Johnson's conduct on S.F. or K.M. They each declined to provide formal victim impact statements. Both K.M. and her mother, however, were interviewed by the author of the pre-sentence report. According to the report, K.M. had no ongoing safety concerns but "expressed that she regrets what occurred at the time of the offence as that is not a life she wants to live." [1] K.M.'s mother reported that her daughter has become guarded and untrusting since the offence, which has negatively affected their relationship.

[13] Although I have no direct evidence of community impact, there can be no doubt that the sexual exploitation of young people harms the community as a whole. Young victims of sexual exploitation are invariably damaged by the experience. They suffer emotional trauma and psychological harm which often lasts a lifetime. To cope with the damage, victims often abuse alcohol or drugs, and the harmful effects of substance abuse are well known. These victims are also at increased risk of further exploitation and victimization in the future. The community at large is harmed by the ongoing suffering caused to victims of such crimes.

The Need for Denunciation

[14] For all of these reasons, those who engage in or assist in the sexual exploitation of young people deserve harsh punishment. There is real need to strongly denounce or condemn such conduct. One of the ways this is achieved is through sentences imposed by judges on those found guilty of this type of offence. As the Supreme Court put it in R. v. M.(C.A.), [1996] 1 S.C.R. 500, at para. 81, "[t]he objective of denunciation mandates that a sentence should communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law."

Rehabilitation and Personal Circumstances

[15] While Ms. Johnson's conduct deserves to be condemned, that is not the only relevant factor. I cannot ignore the need to promote her rehabilitation. She is a youthful first offender. She was only 19 at the time she committed this offence. She has no previous criminal record, and she has not breached her bail or committed any further offence since her arrest on March 1, 2017. From the pre-sentence report, I know that she is estranged from her biological father, who has been incarcerated for virtually her entire life. She was raised by her mother and step-father, who have a good relationship. Ms. Johnson was not exposed to any form of abuse within her home growing up. However, she was the victim of an abusive domestic relationship prior to the commission of this offence, and she developed a serious drug addiction during and following that relationship. Her addiction was the main reason she chose to come to the hotel when invited by Mr. Gray-Lewis.

Moral Responsibility

[16] Her level of moral responsibility is also reduced because she played a limited role in the sexual exploitation of S.F. and K.M. Ms. Johnson did not recruit them into the sex trade, she was not involved in placing advertisements or securing clients, she did not actively encourage their actions, nor did she financially profit from their prostitution. She did aid them by renting the hotel room where they provided sexual services for money, and she did so knowing that the room would be used for this purpose.

[17] The Crown says that Ms. Johnson bears a high degree of moral responsibility for her actions because this offence occurred over a period of days and only came to an end with her arrest. She clearly knew that the victims were providing sexual services for money and had many opportunities to reflect on her own role in aiding that ongoing criminal and harmful activity. While I agree that her conduct was not a simple momentary lapse, I also find that her judgment was likely clouded by her own personal circumstances. These include her own victimization by her former partner and her drug abuse. Based on what I know now of Ms. Johnson, I doubt that she would have chosen to involve herself in aiding the sexual exploitation of other young women had her judgment not been impaired. While this does not excuse her conduct, her personal circumstances do reduce her degree of moral responsibility for that conduct.

Post-Conviction Rehabilitation

[18] To her credit Ms. Johnson has taken some steps to rehabilitate herself since she was found guilty. I accept her assertion that she attended a residential treatment program to address her substance abuse. This is important since her addiction was a large part of the reason why she committed this offence. It is unfortunate that Ms. Johnson did not complete the program, for reasons that are not clear to me. Nevertheless, she has not committed further offences in almost two years since she was first charged. She is back living with her mother and step-father, who remain supportive of her.

[19] She was cooperative and forthcoming with the author of the pre-sentence report, demonstrated remorse for her conduct and appears to have some insight into the harmful effects of her conduct on the victims in this case. The probation officer who wrote the pre-sentence report concluded that Ms. Johnson "would be suitable for community supervision should she continue to demonstrate genuine motivation and commitment to address identified areas of concern." [2] The probation officer recommends conditions for supervision in the community that include protection conditions for the victims, non-communication conditions with her co-accused, and counselling conditions.

Balancing the Sentencing Principles

[20] Although there is a pressing need to denounce or condemn the sexual exploitation of young people in our community by imposing harsh sentences on anyone who aids in this activity, in Ms. Johnson's case the community also has a real interest in promoting her rehabilitation. The sentence I impose must fit with these competing interests.

Sentencing Precedents

[21] There are few reported sentencing decisions for offences contrary to s.171, and no reported cases where offenders were sentenced only for this offence. In each case that I was able to find, the offender was also found guilty, as was Mr. Gray-Lewis in this case, of other related offences. One example is R. v. Akumu, [2017] B.C.J. No. 1783, where a 36 year old female first offender was sentenced to 12 months jail for being a householder permitting sexual activity. That sentence was imposed concurrently to sentences of two years less a day jail for offences of sexual interference and invitation to sexual touching arising out of the same set of facts. In that case Ms. Akuma provided alcohol and drugs to the 14 year old victim, who became very intoxicated. Ms. Akuma and then a male friend both engaged in sexual activity with the victim. Subsequently, Ms. Akuma invited the victim over to her residence again, offering more alcohol and asking the victim not to tell her mother what happened. Ms. Akuma did not challenge the constitutionality of the mandatory minimum sentence.

[22] I also sentenced Mr. Gray-Lewis to a period of 12 months jail for the s.171 offence in this case. Mr. Gray-Lewis did not challenge the mandatory minimum sentence either, and his sentence for this offence was imposed concurrently to a sentence of 2 years jail for the offence of receiving a financial benefit from the sexual exploitation of S.F. and K.M. Mr. Gray-Lewis was involved in facilitating the exploitation of the two victims from the outset, he profited financially from the sexual services they provided, and he is the one who enlisted Ms. Johnson's assistance to enable them to continue to rent a hotel room. His level of moral responsibility for his role greatly outweighs Ms. Johnson's moral fault, and justifies a different length of sentence in response.

The Fit Sentence

[23] In this case, I do agree with the Crown that a sentence of mere probation would not adequately address the need to express society's condemnation for Ms. Johnson's conduct. Some period of incarceration is necessary to properly denounce her crime. At the same time, however, the principle of restraint dictates that the sentence ought to be as short as possible to achieve the necessary punitive sentencing goals. I find that a short, sharp jail sentence of 60 days followed by probation would be sufficient to achieve these goals while at the same time balancing the restorative and rehabilitative needs of Ms. Johnson. A sentence of 12 months jail would be unnecessarily harsh and would potentially constitute a crushing sentence for her. A short jail sentence followed by probation would allow for real punishment of her conduct while at the same time fostering her ongoing rehabilitation and making reparations to the community. But for the mandatory minimum sentence, I would have chosen a sentence of 60 days jail followed by 2 years of probation with appropriate conditions including protection terms, counselling terms and community service.

Gross Disproportionality Analysis

[24] Since I have determined that the appropriate sentence for Ms. Johnson in this case would be a 60 day jail sentence and probation, the question then is whether the 12 month mandatory minimum jail sentence required by s.171 of the Code is grossly disproportionate. In my view, it is. Although a sentence of 12 months jail would certainly condemn her conduct in stronger terms, a sentence of that length is so far removed from what is appropriate that it would be a grossly disproportionate punishment in her circumstances.

[25] There is nothing startling in this conclusion. Other courts have reached the same conclusion with respect to a variety of mandatory minimum sentences. In R. v. Morrison, 2017 ONCA 582, the Court of Appeal found that the 12 month mandatory minimum sentence for the offence of child luring was grossly disproportionate. In R. v. Boodhoo, 2018 ONSC 7207, Bale J found that mandatory minimum sentences of 1, 2 and 5 years were grossly disproportionate for the offences of distributing child pornography, receiving material benefit from sexual services provided by a person under the age of 18, and procuring a person under the age of 18. Although not binding on me, these cases are instructive and confirm my conclusion that a 12 month sentence for Ms. Johnson in this case would also be grossly disproportionate.

Charter Breach Finding

[26] I therefore conclude that Ms. Johnson has proven that the mandatory minimum sentence in her particular circumstances would infringe her right not to be subject to cruel and unusual punishment as guaranteed by s.12 of the Charter. As a result, the mandatory minimum sentence does not apply to her.

[27] Given this finding, it is unnecessary for me to consider whether the mandatory minimum sentence would also constitute grossly disproportionate punishment in the case of another reasonably hypothetical offender.

Sentencing Order

[28] Accordingly, my sentence for Ms. Johnson is as follows. She will serve 60 days in jail to be followed by 2 years of probation. The conditions of probation are as follows:

• Keep the peace and be of good behaviour

• Appear before the court when required to do so

• Notify the court or probation officer in advance of any change of name of address and promptly notify the court or probation officer of any change in employment or occupation

• Report in person to a probation officer within two working days of your release from custody and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision

• Your reporting requirement ends when you have satisfied your probation officer that you have completed all of your community service hours and completed all of your counselling

• Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer on request

• Do not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means, with S.F., K.M. or Lennox Gray-Lewis

• Do not be within two kilometres of any place where you know S.F., K.M. or Lennox Gray-Lewis to live, work, go to school, frequent or any place you know the person(s) to be except for required court attendances

• Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer, including but not limited to substance abuse

• Perform 50 hours of community service work on a rate and schedule to be directed by the probation officer but must be completed within 18 months of the start date to this Order

• Make reasonable efforts to seek and maintain suitable work and provide proof of same as required by the probation officer, or attend school or an educational or training program approved of by your probation officer and provide proof as required by your probation officer

Additional Orders

[29] The Crown's application for a DNA order is granted. I also make an order pursuant to s.161(1)(a.1) prohibiting Ms. Johnson from being within two kilometres of any dwelling house where either S.F. or K.M. ordinarily reside for a period of 5 years. I decline to make the order sought by the Crown pursuant to s.161(1)(b) prohibiting Ms. Johnson from working or volunteering with persons under the age of 16, as in my view such an order is not necessary for the protection of the public and would be unduly restrictive of Ms. Johnson's liberty and prospects for rehabilitation.

Released: April 10, 2019

Signed: "Justice S. W. Konyer"

Footnotes

[1] Pre-Sentence Report, Exhibit 1, page 7

[2] Pre-Sentence Report, Exhibit 1, page 8