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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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: 2019-10-16

Court File No.: Guelph 18-0789

Between:

Her Majesty the Queen

— and —

Dominic Strickland-Prescod

Before: Justice M.K. Wendl

Heard on: May 21, 2019 & October 10, 2019

Reasons for Judgment released on: October 16, 2019

Counsel:

• T. Meehan — counsel for the Crown
• R. Hintsa — counsel for the defendant Dominic Strickland-Prescod

Judgment

WENDL J.:

Introduction

[1] Mr. Strickland-Prescod [the applicant] pled guilty to trafficking in persons contrary to section 279.01 of the Criminal Code.

[2] Section 279.01 carries a minimum penalty of 4 years imprisonment. The applicant states that this mandatory minimum contravenes section 12 of the Charter because it is grossly disproportionate, and that this infringement cannot be justified under section 1 of the Charter.

[3] As a result, the applicant requests that this Court declare the mandatory minimum invalid in these proceedings.

[4] For the following reasons, I allow the application.

Agreed Statement of Facts

[5] The victim is a 24-year-old woman who up until early 2018 was employed. She had struggled with drug addiction in the past but had been sober for several months prior to this incident. On March 10, 2018, she and her boyfriend visited Guelph. After arriving, they had an argument and parted ways.

[6] Mr. Strickland-Prescod met the victim approximately a year before, but they did not have regular contact. In March of 2018, Mr. Strickland-Prescod was renting a room at the Parkview Motel in Guelph.

[7] The victim was very upset after the falling out with her boyfriend. She did not know many people in Guelph, so she contacted Mr. Strickland-Prescod hoping he could help her find some illicit drugs.

[8] The accused told the victim she could stay with him for the night. He agreed to provide her with drugs but stated that she had to work for them. She did not want to do this, but thought if she did, she could get some money to buy some drugs. Mr. Strickland-Prescod took several pictures of the victim dressed in lingerie in the hotel room, he was going to post them on the Backpage.com in an escort ad. She did not know what was in the text of the ads, she did not have a cell phone or any means of accessing the internet. Mr. Strickland-Prescod told the victim he would charge clients $160 per half hour and $240 per hour for her sexual services. Mr. Strickland-Prescod would arrange the dates and she was to get the cash from the clients prior to performing any sexual acts. She was then to hand the money over to Mr. Strickland-Prescod. She thought he would keep the money safe and then pass it on to her. She thought he would probably keep some of the money.

[9] Mr. Strickland-Prescod took control of the victim's vehicle – he had the keys and would not allow her to drive it. He used the vehicle to drive to several locations while the victim stayed in the car. On one of these occasions, he picked up another female and brought her back to the hotel room. The female was working as an escort and had clients come to the room. Mr. Strickland-Prescod and the victim hid in the bathroom while these calls were occurring.

[10] Mr. Strickland-Prescod set up a date for the victim in the room. She was not told what Mr. Strickland-Prescod had arranged with the male client. When he arrived, Mr. Strickland-Prescod told the victim to perform oral sex on the client. The victim did and was given $160 which she gave to the accused. The victim asked the man whether she could buy some cocaine from him and he told her not to talk to him but to deal with "her man." Mr. Strickland-Prescod kept the money that the victim had earned on the call, he gave her some cocaine and then another $20 when she told him she needed food. The accused told the victim that he wanted to take her out of town to work. She did not want to go out of town.

[11] Mr. Strickland-Prescod attempted to set up several more dates for the victim, but the clients did not show up and the victim was relieved. On March 12, 2018, Mr. Strickland-Prescod checked out of the Parkview Hotel where he was registered as "Adam Law". He drove her vehicle around town with her in it but did not allow her to drive. They were pulled over by police on a traffic stop and Mr. Strickland-Prescod threw a bag of marijuana at her. Both parties were arrested. The victim's car was impounded as Mr. Strickland-Prescod was a prohibited driver.

[12] When the accused was arrested, the victim's Ontario driver's licence was found on him – she did not give him permission to have her driver's licence.

[13] The victim told police she did not believe she could leave the situation she was in, as she had no money, no phone, no family or friends in town and Mr. Strickland-Prescod was in possession of her car and her ID.

[14] When Mr. Strickland-Prescod was arrested his phone was seized. Subsequent analysis identified his phone number as the contact number on the Backpages.com ad with the victim's photos, in addition to other ads with unknown women's photos and offers of sexual service.

[15] On March 10, 2018, Mr. Strickland-Prescod tells a female named "Mel" that he is working a girl named J.P. He has a further conversation with a Matt and sent him a video of the victim saying, "check out my bottom bitch". (In Human Trafficking investigations, police have found that "Bottom Bitch" is a term used to refer to a sex trade worker that is the pimp's favourite.) He says he is breaking her in. He tells a woman named Rachel that the victim is working for him and sends her a photo of the victim.

[16] On March 11, 2018, Mr. Strickland-Prescod has a video chat with a Spence and sends three photos of the victim to him that were posted in Backpages. He asks a female friend for money to post the victim's ad near the top. He had another conversation with a woman named Rachel and tells her he has a new working girl with a vehicle, and he wants Rachel to work with the victim.

[17] On March 12, 2018, Mr. Strickland-Prescod has a conversation with a male named Jason and sends him several Backpages.com photos of the victim.

[18] In total forty-one phone numbers were found that contained text message conversations between potential male clients and Mr. Strickland-Prescod discussing the sale of the victim's sexual services.

Circumstances of the Offender

[19] Mr. Strickland-Prescod was 23 at the time of his arrest. He has been in custody since. As of October 16, 2019, the day this judgement is released, he will have had 424 days of presentence custody. Mr. Strickland-Prescod turns 25, on October 17, 2019.

[20] Mr. Strickland-Prescod was born here in Guelph. He maintains a strong relationship with both his parents. His father attended court on the day of this hearing. He advised me that the applicant has a job waiting for him. He will work on a painting crew with his uncle. He has a place to stay with his father. His father indicates that their home is drug free. Essentially, Mr. Strickland-Prescod still has a lot of support from his family.

[21] The applicant has a significant criminal record starting in 2009 and uninterrupted until today. Counsel for the applicant categorizes his record as that of a drug addict. I agree. The longest period of custody he appears to have served, prior to this incident, is 171 days of enhanced presentence custody. Counsel for the applicant also categorizes his record as unrelated, and while I agree that Mr. Strickland-Prescod has never done anything similar, and this offence presents a marked increase in seriousness, the underlying drug addiction still forms part of the matrix on the facts in front of me. At the time of the incident he was addicted to Crystal methamphetamine.

Legal Analysis and Principles: Section 12 of the Charter

[22] A sentence will infringe section 12 of the Charter if it is "grossly disproportionate" to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender.

[23] The first step in that analysis is to determine what constitutes a proportionate sentence for the offence, having regard to the objectives and principles of sentencing in the criminal code. Second, after having considered what the appropriate sentence should be, the court must ask itself whether the mandatory minimum is then grossly disproportionate. Gross disproportionality is a stringent test. The sentence must be more than merely excessive, it has to outrage the standards of decency and be abhorrent or intolerable to society.

[24] Human trafficking is a serious offence and one that requires a clear denunciatory sentence. Prostitution takes a heavy toll upon its victims.

[25] Without a mandatory minimum, courts consistently imposed custodial sentences for human trafficking. In Lucas, provided by defense counsel, Allen J., of the Ontario Superior Court, indicated that the range of sentences involving sex service-related offences is from 12 months to five years. Allen J. helpfully summarized sentencing decisions in this area:

R. v. Tang, 1997 ABCA 174 — offender ran a sophisticated brothel business; solicited and provided seven or eight customers per night, up to six nights weekly with two girls aged 13 and 14 over a six-week period; victims were in foster care and a group home when he introduced them to prostitution; accused also had sex with the girls; sentence 60 months for living on the avails of prostitution.

R. v. Miller, [1997] O.J. No. 3911 (Ont. Gen. Div.) — offender, a pimp, operated bawdy-house for one year; involved a number of adult prostitutes working for him; provided three residential apartments; collected 40% of the proceeds; assaulted one woman and threatened her; total sentence of 22 months imprisonment which included sentence for assault with weapon and keeping a bawdy house; six months concurrent for two counts living on the avails.

R. v. MacPherson, 2013 ONSC 1635 — victim met offender at a nightclub when she was age 17; relationship initially platonic; she turned 19 years then offender set her up as exotic dancer at a club; they moved in together and began a sexual relationship; victim thought the offender was her boyfriend; she turned over all of her earnings to offender; offender instructed her to perform sexual services for club patrons with a $1,000.00 per night quota; arrangement continued for a year and a half; offender age 36 at the time of sentencing; global sentence of 36 months for two counts of prostitution-related offences.

R. v. Wallace, [2009] A.J. No. 986 (ABCA) — offender, age 27 years, met 18-year-old victim on internet dating website; offender took victim from Alberta to Toronto; introduced her to prostitution; kept all the proceeds for himself; they then returned to Alberta where the offence continued; total sentence 60 months for sexual offences.

R. v. Downey, [1992] S.C.J. No. 8 (S.C.C.) — appeal of conviction only; offender charged with his companion, the owner of an escort agency, with two counts of living off the avails of prostitution; clients would call the agency and an escort would go on a date with them; clients were charged introduction fee which the agency collected; escorts kept any money they received for sexual services; offender was aware of the sexual activity; offender worked at agency answered phone, made up receipts and did the banking. He had no other employment.

R. v. Brown, [2007] O.J. No. 2985 (Ont. C.A.) — offender, age 31, carried on systematic and calculated exploitation of an unsophisticated and susceptible young woman; was on parole at the time for living on the avails of a 16-year-old victim: offender had significant and relevant criminal record; included prior convictions for living on the avails of prostitution as well as offences of violence and dishonesty; overall sentence eight years imprisonment.

R. v. Ellis, [2017] O.J. No. 3196 (Ont. S.C.J.) — victim age 22 years at the time; living with her family and employed; no previous experience with the sex trade; offender met victim at a party; soon started an intimate relationship; lured her into sex trade with money she could earn; offender groomed victim for sex trade; took photos of her wearing lingerie and arranged ad to be placed on escort website; showed her how to answer calls and messages from prospective clients and how to collect money and he told her what to charge; involved in sex trade with offender for three months; offender violent when victim wanted to leave sex trade; she stood up to him and left the relationship; she continued in the sex trade after she left him; global sentence 20 months.

[26] Lucas himself was sentenced to 12 months on the charge of procuring. In Lucas there was no allegation of violence and no control over the victim's movements. However, the court found he did take advantage of a domestic relationship. He was 23 at the time of the offence, and sentencing took place after a trial.

[27] Other cases provided by the defense are Campbell, A.A. and N.A. In Campbell the accused pled guilty to exercising control over a person to compel engagement in prostitution and possession of a prohibited firearm and ammunition. Campbell was a 32-year old with no criminal record, with two children and a supportive family. Over a three-day period, he exploited a 16-year old drug-addicted prostitute by transporting her to clients and taking all the money she was paid, demanding that she earn more, and by maintaining complete control over her movements. He took her phone and refused to return it until she earned more money. The victim contacted and arranged all of her work. She ultimately escaped Campbell's control by having a client call police. The investigation led to the discovery of a semi-automatic handgun with its serial numbers removed, along with ammunition, in a storage locker rented by Campbell. The victim indicated that she suffered fear, paranoia and panic attacks as a result of the offence committed against her, but that she had since changed her life, left prostitution and returned to school. Campbell was arrested April 10, 2014. He pleaded guilty to exercising control over the complainant and possessing an unloaded prohibited firearm with readily accessible ammunition. Campbell was sentenced to 21 months on the charge of exercising control and 2 years consecutive on the firearms offence.

[28] In N.A., Monahan J., after trial, found the accused guilty of offences under section 279.01 and 279.02. He imposed a sentence of 18 months jail time. Threats and violence were used, the accused keep most of the money, it was of short duration and the victim was an addict. The accused himself had no record, was close in age to the accused, did not engage in sexual acts with the victim and there was no confinement. Significantly, Monahan J. noted the accused had limited insight into his behaviour and showed a lack of remorse.

[29] In A.A., after trial, Wein J. imposed a sentence of 24 months. In analyzing the Tang criteria (discussed below), Wein J. noted the degree of control was modest to high in view of the fact that a gun was seen, and the young woman was living in a jurisdiction she was not familiar with, without family support. The amount of money was low, and it was a very short time period. A.A. exercised complete control over the money received and only doled out modest amounts. The victim was not under age, although quite young, and there is proof of only one victim in this case. English was quite clearly her second language. However, there was no drug or alcohol abuse or homelessness. The working condition were not the worst. The operation was small and took place over 3-5 weeks. There was some evidence of violence. There was an aspect of physical coercion because of the number of persons always in the apartment, and, the showing of a gun which is a factor constituting a serious threat to anyone in this situation. No extraordinary negative impacts were suffered by the victim, and the court found that A.A. did not force or compel any sexual favours. A.A also had an extensive record.

[30] The Crown provided me the case of D.A. In D.A. The accused was found guilty after a jury trial of human trafficking. The accused, in that case, met the victim in 2014 and developed a relationship with her. She came up with a plan in which he would be her protector while she engaged in prostitution. She would give him 50% of the money she received. She had previous similar relationships.

[31] A second male was brought into the arrangement by the accused. The accused and the second male kept all the earnings from prostitution. That second male was physically assaultive towards the victim in the presence of the accused, he did not intervene. On another occasion, the accused himself, kicked and struck the victim and she suffered a broken finger. The exploitation lasted 90 days, the accused took all the victim's money and gave her five dollars a day for food. Furthermore, the accused had possession of the victim's identification card. The accused had no criminal record and the support of his family. Andre J. sentenced the accused to three and half years of imprisonment.

[32] In D.A., Andre J. also discussed sentencing cases in the area.

One of the cases which the Crown relies on is R. v. R.R.S., 2017 ONCA 141. In that case, the accused was convicted of human trafficking, receipt of material benefits, withholding documents to facilitate trafficking, assault, uttering a threat and breach of undertaking. The complainant had been an exotic dancer who had worked as an escort under the accused's direction. She testified that he beat her regularly and kept virtually all the money she earned from her escort services. The judge sentenced him to a global five years imprisonment; a sentence upheld by the Court of Appeal.

In R. v. Mfizi, [2008] O.J. No. 2430 (Q.L.) (Sup. Ct.), a jury convicted the accused of a number of prostitution-related offences and assault. The complainant was 17 when she met the accused. She testified that he controlled her through violence and intimidation and forced her to engage in prostitution. The accused had a criminal record for violence. The court sentenced the accused to a global sentence of 8 years. The facts of that case however, are clearly more egregious than those in the instant case.

In R. v. Estrella, [2011] O.J. No. 6616 (Q.L.) (Sup. Ct.), Justice Corbett sentenced Ms. Estrella who had been convicted by a jury of four counts of prostitution-related charges, including living partly on the avails of prostitution, and aiding, abetting or compelling a person to engage in prostitution, to a global sentence of 30 months imprisonment. The victim had been a 16-year-old high school student when she was procured into prostitution. Ms. Estrella had also coached her into becoming a prostitute and had placed her photos on the internet.

[33] In Miller, Hill J. adopted the factors outlined by the Alberta Court of Appeal in Tang as relevant to sentencing for an offender convicted of living off of the avails. The Tang criteria are as follows:

1. The degree of coercion or control imposed by the pimp on the prostitute's activities;

2. The amount of money received by the pimp and the extent to which the pimp allowed the prostitutes to retain their earnings;

3. The age of the prostitutes and their numbers;

4. Any special vulnerability on the part of the prostitutes;

5. The working conditions in which the prostitutes were expected or encouraged to operate, including their physical surroundings in terms of soliciting customers and servicing customers, and safety concerns, in addition to whether appropriate health safeguards were taken;

6. The degree of planning and sophistication, including whether the pimp was working in concert with others;

7. The size of the pimp's operations, including the numbers of customers the prostitutes were expected to service;

8. The duration of the pimp's exploitative conduct;

9. The degree of violence, if any, apart from that inherent in the pimp's parasitic activities;

10. The extent to which inducements such as drugs or alcohol were employed by the pimp;

11. The effect on the prostitutes of the pimp's exploitation;

12. The extent to which the pimp demanded or compelled sexual favours for himself from the child prostitutes.

[34] Before analyzing the facts of this case through the above criteria, I mention that this analysis is not about finding mitigating conduct or minimizing Mr. Strickland-Prescod's conduct, this is an exercise of comparative of malfeasance. It does not minimize the impact on the victim. It only puts Mr. Strickland-Prescod's conduct on a spectrum of how bad it was.

[35] There is obviously a degree of control over the victim which is implicit in Mr. Strickland-Prescod's actions. In the agreed statement of facts, which Mr. Strickland-Prescod accepted upon plea, the victim indicates that she felt she could not leave. The fact that Mr. Strickland-Prescod had control of her car and ID gives credence to that belief. The possession of the ID is deeply concerning and in line with the facts of D.A. From the agreed statement of facts, it can be inferred that Mr. Strickland-Prescod was aware that she did not have anyone else in Guelph, which made her more vulnerable. However, on these facts it appears that the victim approached Mr. Strickland-Prescod and she agreed, at least initially, to perform sexual services in exchange for drugs. There is no evidence that he threatened her or exerted physical force over her or stopped her from leaving.

[36] The encounter garnered $160. He provided drugs to the victim as per her request and $20 for food. Effectively, Mr. Strickland-Prescod retained some portion of $140.

[37] The victim in this case was 24 years old, still youthful, but not underage. There is no evidence of physical or psychological vulnerabilities. However, again, I would qualify her being alone in Guelph without friends or family as a vulnerability as is the drug addiction. Mr. Strickland-Prescod preyed on that addiction.

[38] Nothing stands out to the court in terms of the working conditions. However, again, prostitution in and of itself is inherently degrading. Meeting strangers for sex in a hotel room can only be qualified has a horrifying experience.

[39] There is a slight degree of sophistication involved in this enterprise. Pictures were taken, ads were placed and an attempt to find someone else to work with was made.

[40] The operation was small, and the duration was short, it involved only one encounter. However, that may only be luck. The taking of the identification, the missed appointments and the multiple text messages clearly point to the expectation that Mr. Strickland-Prescod expected this to be more than a one-time incident.

[41] There was no overt threats or violence except what is inherent in the conduct, and, there is no evidence he compelled sexual activity for himself from her.

[42] No victim impact statement was filled.

[43] Finally, drugs seem to be the impetus for this relationship.

[44] Ultimately, this horrible incident was of short duration, appears to have been, at least initially, voluntarily engaged by the victim to obtain drugs, no violence or threats were used, although Mr. Strickland-Prescod kept some part of $140 he gave the victim money for food upon request and drugs upon request. The most aggravating factor is that this appears to have been a longer-term plan.

[45] In comparing the case law, it does not appear to me that any of the above-mentioned case law dealt with the mandatory minimum. The short duration of this incident compares closest to N.A. and Campbell, two of the more recent decisions. All the other cases, as compared to this one, involved more protracted periods of time. Tang and Miller involved the operation of a bawdy house/brothel. Tang, Estrella, Mfizi, Brown and Campbell all involved underage girls. In MacPherson, the victim was 19 and the exploitation continued for 1½ years, the victim and accused were in a relationship. R.R.S., D.A., Mfizi and Ellis involved violence. In Ellis and Estrella the offenders appear to have groomed their victims into prostitution. In Wallace, again, which involved a protracted period-of-time, the Alberta Court of Appeal found that the accused "manipulated the complainant into entering a life of prostitution. While the appellant used trickery and manipulation, his culpability is equivalent to what might traditionally be called "coercion". The court in Wallace also found it to be an aggravating factor that the victim and accused were in a domestic relationship. In Campbell the accused threatened the victim and had the possession of a prohibited firearm and A.A. involved an implicit threat with a firearm.

[46] In reviewing all the sentencing cases in this area, this case compares closest to A.A., N.A., and Campbell, significantly, they are all relatively recent Ontario decisions. N.A. and Campbell from 2017 and A.A. from 2012.

[47] In A.A. as with the case at bar, the victim was away from home and therefore more vulnerable. Although in this case there is no physical coercion, the accused did take control of the victim's car and identity documents, which in my view demonstrates some control and coercion. Both cases can be categorized as a small operation. Both A.A. and Mr. Strickland-Prescod have a lengthy criminal record. On the other hand, there is no evidence of violence as with A.A., the period of time is much shorter and, although, Mr. Strickland-Prescod did keep control of the money, but gave her the drugs she asked for and money for food when asked. In addition to that, in our case there is no evidence of sexual activity between Strickland-Prescod and the victim while in A.A. the court found there was no evidence of forced sexual activity.

[48] As compared to N.A., both incidents were of extremely short duration, they did not engage in sexual acts with the offender, the victim and the offender were the same age, both victims had addiction issues and the offender kept most of the money. However, there was violence in N.A., it involved working at a strip club not prostitution, N.A. had no record and N.A. and showed little remorse.

[49] In comparing this case to Campbell, both were of short duration, both involved victims with drug issues, and although Campbell did not get the victim involved in the business and had no record, he exercised complete control over her and threatened her with a gun, which he was found in possession of. Campbell is the only comparable case that proceeded by way of guilty plea.

[50] In determining the appropriate sentence, this Court is not only obligated to look at the range of sentence but the circumstances of the offender. Mr. Strickland-Prescod's criminal record is unrelated; however, it does have one entry for robbery, which I would qualify as a violent offence. The drug addiction issue underlies Mr. Strickland-Prescod's criminal record. This offence represents dramatic increase in the seriousness of the crime perpetrated by Mr. Strickland-Prescod.

[51] Having a criminal record is aggravating in the sense that it speaks to Mr. Strickland-Prescod's likelihood of recidivism, his good character and his chances at rehabilitation. Essentially, it speaks to the greater need for specific deterrence. When the Court is presented with an offence that represents a dramatic increase in the seriousness of the type of offence, the prior offences are of limited value in determining a starting point for the sentence.

[52] However, others factor must be taken into account when dealing with the likelihood rehabilitation and the amount of emphasis placed specific deterrence. First, he is youthful and as the Court of Appeal stated in Borde:

The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives. The trial judge's repeated references to the need to send a message and his statement that the sentence was meant to deter others who resort to guns make it clear that general deterrence and to a less extent denunciation determined the length of the sentence. In my view, this error led the trial judge to impose an excessive sentence for the aggravated assault.

[53] Second, Mr. Strickland-Prescod has significant family support. He has a home and a job waiting for him. Pro-social factors give Mr. Strickland-Prescod a better chance at rehabilitation.

[54] Given his youthfulness, pro-social factors and clear identification of the underlying issue i.e. drugs, this Court is of the view that rehabilitation is a significant factor, along with denunciation and deterrence, in determining Mr. Strickland-Prescod's sentence.

[55] In my view, having examined sentencing cases in the area, and identified the comparable ones (namely N.A., A.A and Campbell.), in addition to having determined that rehabilitation, along with denunciation and deterrence, is a significant factor in sentence, and giving Mr. Strickland-Prescod credit for his guilty plea, a penitentiary sentence is not appropriate.

[56] In my view, the appropriate sentence is 21 months. To be specific, given the facts in A.A., N.A and Campbell, which are equally or slightly more aggravating when taken as a whole, that A.A. and N.A were trials, and that Mr. Strickland-Prescod is still relatively youthful with prospects at rehabilitation, I do not see how this Court can give a sentence of more than 21 months. Also, in sentencing Mr. Strickland-Prescod this Court takes into account the paradigm shift in the way prostitution is viewed, away from a nuisance to a form off sexual exploitation, this paradigm shift formed the background discussions to the promulgation of the mandatory minimum.

[57] Having determined what the appropriate sentence is, the next step in in the analysis is to determine if that sentence is grossly disproportionate to the mandatory minimum. Leroy J., of the Ontario Superior Court, in Valade, outlined a helpful analytical framework to discuss gross disproportionality.

[58] Mandatory minimum sentences are grossly disproportionate for an individual's circumstances when:

i. there is a sizeable gap between the sentence otherwise imposed and the mandatory minimum sentence (suspended sentence rather than a ninety day minimum — R. v. JG, 2017 ONCJ 881; 18 months rather than a two year minimum — R. v. Sharma, 2018 ONSC 1141; 5 months rather than the one year minimum — SJP; suspended sentence rather than the two year mandatory minimum — R. v. Joseph, 2018 ONSC 4646; 6 months rather than the 36 month mandatory minimum — R. v. O'Neill Harriott, 2017 ONSC 3393);

ii. there is a high ratio between the sentence otherwise imposed and the mandatory minimum sentence (12 months to 5 months greater than 2:1 — SJP);

iii. the consequence of the mandatory minimum sentence is penitentiary rather than reformatory in the context that penitentiary sentences are generally reserved to the most serious offender and offences — R. v. Robitaille 2017 ONCJ 768;

iv. S. 12 Charter protection is not confined to one dimensional focus on sentence duration, but rather the quality and effect of the punishment on the offender including the nature and conditions under which it is employed — Sharma, Robinson.

[59] Using the framework outlined in Valade, the mandatory minimum under 279.01(b) is grossly disproportionate. The gap between the sentence otherwise imposed and the mandatory minimum is 27 months, the ratio between the sentence otherwise imposed and the minimum is greater than 2:1 and the mandatory minimum mandates a penitentiary sentence in contrast to a reformatory sentence for a youthful offender, who although has a significant record, has never had a sentence close to 21 months let alone 48.

Legal Analysis and Principles: Section 1 of the Charter

[60] Since the court has determined that the mandatory minimum under 279.01(b) infringes section 12 of the Charter, this court must now determine if it can be justified under section 1 of the Charter.

[61] I start this analysis with a quote from Karakatsanis J. in Morrison, "it is difficult to imagine how a mandatory minimum sentence which is found to be grossly disproportionate because it outrages our society's standards of decency could represent a justifiable infringement under s. 1 of the Charter."

[62] Furthermore, I echo Schreck J's. comments in Drumonde that I have not been provided any case law where a section 12 breach has been justified under section 1, nor am I aware of any.

[63] To put it simply, a grossly disproportionate sentence cannot be minimally impairing and fails under the second criteria of the Oakes test.

Conclusion

[64] I declare the mandatory minimum under section 279.01(b) invalid in these proceedings. I sentence Mr. Strickland-Prescod to 21 months custody minus his enhanced presentence custody of 636 days (424 x 1.5). This effectively gives him a time served disposition. In addition, since rehabilitation was a significant aspect of this decision, I place Mr. Strickland-Prescod on 2 years of probation. I also impose a SOIRA order for 20 years, a 109 order for life and a DNA order.

Released: October 16, 2019

Signed: Justice M.K. Wendl