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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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: 2020-01-16

Court File No.: Ottawa 18-A9174

Between:

Her Majesty the Queen

— and —

Reginald Gracia

Before: Justice D. Berg

Counsel

• J. Daller — counsel for the Crown
• J. Cavanagh — counsel for the Crown
• J. Gilbert — counsel for the defendant

Reasons for Sentence

Delivered on January 16, 2020

Berg J.:

Introduction

[1] I am now sentencing Reginald Gracia after trial. The Crown elected to proceed by way of indictment on those charges where an election was available. I have found him guilty of the following offences:

• that between the 1st day of August and the 31st day of December, 2015, in the City of Ottawa, he did for the purpose of facilitating an offence under subsection 286.1(1), recruit or exercise control, direction or influence over the movements of a person, namely A.P., who offers or provides sexual services for consideration contrary to section 286.3 of the Criminal Code;

• that between the 1st day of August and the 31st day of December, 2015, in the City of Ottawa, he did knowingly advertise an offer to provide sexual services for consideration by Backpage.com contrary to section 286.4 of the Criminal Code;

• that between the 31st day of December in the year 2015 and the 1st day of January in the year 2016 at the City of Ottawa, he did commit an assault on A.P. contrary to section 266 of the Criminal Code; and

• that between the 30th day and the 31st day of December in the year 2015 at the City of Ottawa, he did, in committing an assault on A.P., cause bodily harm to her, contrary to section 267(b) of the Criminal Code.

I acquitted him of a count of human trafficking (s. 279.01(1)), a count of receiving a material benefit from human trafficking (s. 279.02(1)), and a count of threaten bodily harm.

[2] The factual context for the finding of guilt on the count of procuring is that A.P. worked as a prostitute for one night: the evening of September 30 to October 1, 2015. I could not find, on the evidence before me, that the Crown had proven that she was so engaged on any other date. She then told Mr. Gracia that she no longer wished to have sex with men for money and would prefer to work as a dancer at a strip club. Mr. Gracia then assisted her in finding this alternate employment. She was twenty years old at the time. She had never engaged in prostitution before.

[3] I have accepted the evidence of A.P. as to what occurred on this particular night. The accused reserved and paid for the hotel room with his credit card. Potential clients would telephone an advertised phone number and speak to Mr. Gracia who would arrange a time and advise the client of the place. He would then tell A.P. that a client was on the way. Once the client arrived at the hotel, Mr. Gracia would leave the hotel room and go and hide in a hotel staircase until the client had left. A.P. would get the money from the client before any sexual activity. After the client had left, she would telephone Mr. Gracia, hiding in the staircase, and he would return to the room. She would then give him the money that she had earned from that client. I note that she testified that Mr. Gracia was the one who told the clients what the cost would be. She told me that he was the one who had set those rates. Mr. Gracia insisted that the clients use condoms. A.P. was, after all, his girlfriend and he would not want to contract a sexually transmitted disease.

[4] It is unclear to me how many clients A.P. had over the evening of September 30 to October 1. All I can say is that there was more than one.

[5] Leading up to the night in question, I have found that Mr. Gracia pressured, persuaded, manipulated, or recruited A.P. to work as an escort. His campaign to get her to do so started even before they had met face to face and were communicating by social media or telephone. I have rejected completely Mr. Gracia's contention that the impetus to work as an escort came from A.P. herself. However, it is important to reiterate that Mr. Gracia did not force A.P. to work as a prostitute and that she did so was not out of fear. On her evidence, I found that she agreed to do that work just to get him to stop bringing up the subject. Of course, one must also remember that Mr. Gracia's campaign to convince her included the idea that by making money in this fashion, they would be saving for their future, a future that included a home, children, and a life together. Mr. Gracia was supposedly taking the money made by A.P. on the night in question (as well as the money she made dancing at the strip club) and putting it into a savings account. There is no evidence before me that said account ever existed or that the accused was somehow putting the money aside for their future together. She never saw any of the money once she had handed it over to him. Mr. Gracia, when testifying, did nothing to suggest that there had been any savings put aside.

[6] Mr. Gracia, in his own testimony, admitted to having taken A.P. shopping prior to September 30 in order to purchase clothing suitable for work as an escort. She also had her nails done professionally. Mr. Gracia paid for all of this. Even in the face of Mr. Gracia's denial under oath, I have accepted A.P.'s evidence that he posted photographs of her onto the Backpage web site and composed the wording of the advertisement for her sexual services. It seems that the advertisements were posted on September 25 and 27, 2015. The photographs depicted A.P. in various degrading poses.

[7] I turn now to the two assaults. The first occurred during the night of December 30 to 31, 2015. I accepted A.P.'s evidence, as well as that of her sister, and the photographs, that when driving her home from the strip club, Mr. Gracia became enraged when he learned that she had been speaking to an ex-boyfriend at the club. The fact, apparently, that she had not made a lot of money that evening did not sweeten his mood. As he drove her from the downtown club out towards her residence in the east end of Ottawa, he became increasingly more irate and then began to accuse her of stealing money from him. A.P. was somewhat intoxicated at this point, having had a few drinks at work, and responded verbally to his accusations. An argument broke out and culminated in Mr. Gracia, who is significantly larger and stronger than A.P. striking her in the face and then grabbing her head and forcing it onto the dashboard. As a result of this action, A.P.'s nose and forehead hit the dashboard and she began to bleed. He did not hit her again that evening, but continued driving towards her house all the while calling her names. To my mind, it is noteworthy that Mr. Gracia never stopped the car, not when the argument broke out, not when he hit her, not afterwards. The injuries sustained by A.P., while sufficient to make out bodily harm, were not serious.

[8] The second assault occurred over New Year's Eve (i.e., December 31, 2015 to January 1, 2016). Once again, Mr. Gracia was driving A.P. home after she had worked at the strip club and once again he assaulted her during the course of that ride. Once again he did not stop the car. In this case, however, Mr. Gracia was unaware that A.P. was surreptitiously recording what was being said on her cell phone and over the course of the trial, I had occasion to hear that recording. Mr. Gracia was clearly enraged, A.P. remained calm at least until Mr. Gracia began to assault her by holding her head down in a manner causing her to have difficulty breathing. The whole while, Mr. Gracia is shouting at A.P. and belittling her. She sustained minor injuries.

[9] As part of this sentencing process, I had the benefit of receiving three Victim Impact Statements: that of A.P., that of her mother, and that of her step-father. The effect of Mr. Gracia's actions on A.P. and her family are well documented in those statements. She wrote "[a]fter all of that I can't allow myself to hold a grudge against you. I'm trying my hardest every single day to prove to myself that I am not my past. I am stronger than what you have ever done to me." What I take from her words is an understanding that the process of sentencing does not include the visiting of vengeance upon Mr. Gracia but that he will be punished according to law. It is my hope that her participation in this process will help her to heal.

[10] The Crown's position on sentencing was initially for a global sentence of three to four years of incarceration. During sentencing submissions, Mr. Cavanagh articulated the Crown position as twenty-four months on the procuring, a concurrent sentence on the advertising of sexual services, and around twelve months globally for the assaults, to be served consecutively to the other counts. Mr. Gilbert, for the defence submits that I should sentence Mr. Gracia as follows: 90 days on the count of procuring and 90 days concurrent on the count of assault causing bodily harm, to be followed by a conditional sentence order of six to twelve months on the count of common assault, to be followed by another conditional sentence of six months on the count of advertising, the whole to be followed by a period of probation of two years duration.

Who is Reginald Gracia?

[11] On May 30, 2019, I ordered that a Pre-sentence Report be prepared.

[12] Mr. Gracia was born in 1991 in Gatineau, Quebec. He is the middle child of three. According to the Pre-sentence Report, he grew up in a household that was family and church centered. He was close to his two brothers, one of whom, Mr. Gracia advised, is a Federal correctional officer. Mr. Gracia continues to live with his parents and two brothers. Mr. Gracia advised the probation officer that he has been in a relationship with a woman since September 2019 and that they are expecting a child in June of 2020.

[13] He is fluently bilingual. At one point in the trial, I was surprised to realize that English was not his maternal language when he had to resort to French for a particular word.

[14] Mr. Gracia completed high school. Indeed, he went on to university and obtained a B.A. in social sciences with a minor in economics; this was in 2016.

[15] Since 2014, he has been the franchise owner of a student painting company, part of the College Pro franchise network. He began the company as a sole proprietorship and then incorporated it in 2017. It seems that he was a successful franchisee and received several awards from College Pro including: rookie entrepreneur of the year (2015), the platinum award in recognition of outstanding business achievement (2017) and precedence award for outstanding achievement (2018). It is noteworthy that he received the rookie entrepreneur award at the same time as committing the procuring offence; I have heard evidence that A.P. attended the award ceremony with him in Toronto. I was provided with an undated, unsigned but laudatory letter of reference from College Pro. However, it is clear from the wording of that letter that the author was unaware of the present offences. Mr. Gracia has advised that he wishes to obtain an MBA.

[16] He reports no substance abuse problems. I have not been advised of any mental health issues.

[17] Mr. Gracia told the probation officer that he was not guilty of the offences on which I am sentencing him. He also indicated, on the other hand, that he respects my decision and is ready to serve his debt to society. Leaving aside the obvious logical problem here, I would point out that Mr. Gracia has no choice; he will serve the sentence I pronounce whether he is ready or not. He indicated to the probation officer that he is worried that having a criminal record would have a negative impact on his life and his goal of being in business. I would point out that he already has a criminal record and has had one since 2011. He told the probation officer that "being on the Sex Offender Registry would prevent him from vacationing in the United States." I wish to be clear: this Court is not concerned at all about Mr. Gracia's future holiday plans. Mr. Gracia also informed the writer of the Pre-sentence Report that incarceration would mean he would have to shut down his business and "many would be unemployed as a result", that not being able to work "could impact his romantic relationship, friendships and family relationships as well as his relationships with business partners in the community." I would point out that these are the unfortunate consequences of having been a pimp and of having assaulted A.P. He expressed other sentiments similar to the ones I have just mentioned. They are of no consequence to this Court.

[18] The probation officer spoke to people in the community who know Mr. Gracia. The officer summarized their opinions as follows:

[t]he subject's collaterals re-iterated how charismatic, hardworking and trustworthy he is. The subject appears to have positive social skills, which he wants to use to his advantage for his employment. He appears to have aspirations and plans for his future.

[19] So how did a person like this come to behave as Mr. Gracia did? To be frank, I have no idea. But I do not have to understand his motivation in order to pass sentence. It is clear that Mr. Gracia has many positive and pro-social influences in his life. It is also clear to me that Mr. Gracia is ignoring many of those influences or at least was doing so in 2015 and, in fact, there are clear indications that he has a history, albeit a short one, of anti-social behaviour. In 2011, he was found guilty of possession of a Scheduled Substance and failure to comply with an undertaking whereupon the passing of sentence was suspended and he was placed on probation for twelve months. Later that same year, he was placed on a conditional sentence of nine months duration for one count of assault with a weapon and one count of theft. That is the totality of his criminal record. While short, it might tend to suggest, however, that the description of Mr. Gracia offered by his collateral contacts is not quite complete. He may indeed be charismatic, hardworking, and trustworthy. But his convictions in 2011 as well as the matters for which I am sentencing him here today suggest that he also has a tendency towards criminality.

The Law

[20] Purpose and Principles of Sentencing: section 718 Criminal Code establishes that

the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[21] Section 718.1 mandates that the fundamental principle of sentencing is that "a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[22] The Criminal Code also instructs sentencing judges to take into account these other sentencing principles:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;

(ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner,

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[23] The manner in which to approach the calculation of a sentence for pimping-type offences has been dealt with by the Alberta Court of Appeal in R. v. Tang, 1997 ABCA 174. That approach has been adopted in Ontario (see R. v. A.S., 2017 ONSC 802, R. v. D.A., 2017 ONSC 3722, R. v. A.E., 2018 ONSC 471, R. v. Salmon, 2019 ONSC 1574). A further case where the Tang factors were applied is Hill J.'s decision in R. v. Miller, [1997] O.J. No. 3911 (Gen. Div.) at paragraphs 38-40.

38 In [Tang], the Alberta Court of Appeal reviewed the sentence appropriate to an instance of living off the avails of prostitution … the Court set out a list of factors which might be considered in such a case, in addition to the usual aggravating and mitigating ones. In my view, these factors are helpful in considering the seriousness of a bawdy-house operation or living off the avails charge. The list included the following:

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 exploitive 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.

To these factors, I would add the following:

1. The age of the customers attracted to the bawdy-house operation;

2. Steps taken by the accused to evade detection by the authorities;

3. Attempts by the accused to prevent a prostitute from leaving his employ.

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 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.

40 These categories, though related to a distinctly different English statutory regime, serve to provide some general guidance as to the degrees of seriousness of prostitution-related criminality. Used as flexible guidelines only, the scheme does not offend the legitimate help of sentence starting-point analysis …

I am well aware that Dr. Thomas' categories have not met with universal acceptance in Canada (see the comments of Buckle J. in R. v. Gray, 2018 NSPC 10). However, as a general analytic approach in the modern Canadian context, it is a useful reminder that sentencing for procuring is not the same as where the accused has been found guilty of the more serious offence of human trafficking.

Analysis

[24] The Supreme Court of Canada, in R. v. Lacasse, 2015 SCC 64 at paragraph 58, has remarked that "[t]he determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision." It has been conceded by Mr. Gracia that the primary sentencing objectives in pimping cases must be denunciation and deterrence. That concession was quite proper in the circumstances of this case. However, this is not to say that the other objectives are of no force in the present matter. As was stressed in Lacasse at paragraph 4,

[o]ne of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.

[25] That being said, it is clear that a custodial sentence is required in this case; no other sanction would be appropriate or reasonable in the circumstances of this sentencing. I will first deal with the count of procuring.

[26] As mentioned above, the level of seriousness of a particular case of procuring can be determined by means of the Tang-factors. I will now apply those factors to the present case.

1. The degree of coercion or control imposed by the pimp on the prostitute's activities: Mr. Gracia was acquitted of the counts relevant to this particular factor. He did not force A.P. into prostitution. Moreover, when she told him that she did not wish to escort again, he did not exercise any control or attempt to coerce her into continuing.

2. The amount of money received by the pimp and the extent to which the pimp allowed the prostitutes to retain their earnings: The state of the evidentiary record does not allow me to quantify the amount of money that A.P. made on the night in question. Mr. Gracia took the money from her, ostensibly to put into a savings account for their future, a pure fiction. She was not allowed to retain what she earned that night.

3. The age of the prostitutes and their numbers: A.P. was the only woman working for Mr. Gracia. While young, she was not so young as to engage any concern on account of her age.

4. Any special vulnerability on the part of the prostitutes: I have not been advised of any such issue being relevant in this case.

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: Mr. Gracia had A.P. see the clients in a hotel. I have not been told that that hotel was in any way insalubrious or otherwise unsafe. Mr. Gracia, in his role as pimp, remained nearby while A.P. was servicing the clients thereby providing some level of safety. It is unclear to me whether this was in fact the reason that Mr. Gracia stayed in the vicinity. Finally, the evidence was that the clients were required to use condoms.

6. The degree of planning and sophistication, including whether the pimp was working in concert with others: Mr. Gracia was working solo. There was some planning as evidenced by the preparing and posting of the advertisements with contact information and the renting of the hotel room. However, it would be difficult to characterize Mr. Gracia's efforts here as sophisticated.

7. The size of the pimp's operations, including the numbers of customers the prostitutes were expected to service: Mr. Gracia's operation lasted one night and involved only A.P. There is no evidence that there was any expectation as to a number of clients that would be seen that night.

8. The duration of the pimp's exploitive conduct: One night.

9. The degree of violence, if any, apart from the that inherent in the pimp's parasitic activities: None.

10. The extent to which inducements such as drugs or alcohol were employed by the pimp: Not relevant.

11. The effect on the prostitutes of the pimp's exploitation: As per the Victim Impact Statement, there was a significant effect on A.P. as a result of her interaction with Mr. Gracia. Here I am referring to both her work on the night in question as a prostitute as well as the more extended period when she worked at the strip club. But I am sentencing Mr. Gracia for his activities as a pimp on the night that A.P worked as a prostitute. While common sense dictates that there was some deleterious effect on A.P. as a result of that evening, it is difficult to determine its level separate from what followed. All I can say is that A.P. has suffered as a result of that night.

12. The extent to which the pimp demanded or compelled sexual favours for himself from the child prostitutes: A.P. was not a child, however, this factor is relevant in any case of pimping. In the present case, the evidence shows clearly that from A.P.'s perspective, Mr. Gracia was her boyfriend. I further note that after the incident on New Year's Eve, when she stopped working for Mr. Gracia, A.P. did spend a night with him a week later during which she had consensual sexual relations with him. This is not a case where this factor is relevant.

I do not feel that Hill J.'s three further factors add anything to the analysis in this present case.

[27] Mr. Gracia's efforts as a pimp were of very short duration, he did not attempt to force A.P. into continuing as a prostitute, and she was to have the clients use condoms. While A.P. did not get to keep any of the money that she made, and while I have no doubt that her activities that night have affected her well-being, my review of the totality of the Tang-factors suggest that Mr. Gracia's efforts as a pimp are to be situated at the lower end of the scale.

[28] My review of cases where other offenders have been sentenced in similar circumstances leads me to the conclusion that the low end of the appropriate sentencing range for procuring would be one-year incarceration (see, for example, R. v. Lucas-Johnson, 2018 ONSC 4325, also a sentencing after trial). I note here that Mr. Gilbert could not provide me with any sentencing decisions providing support for his position of 90 days for this count or anything close to that quantum. I am of the view that while Mr. Gracia's sentence for this count should be at the lower end of the range, I do not think that it should be on par with the sentence in Lucas-Johnson. In that latter case, the complainant had prior experience as a prostitute, got to keep her share of the proceeds, and appears to have been a fairly dominant personality.

[29] I turn now to a review of the aggravating and mitigating circumstances relevant to this sentencing. Here, I am dealing with all four of the counts for which I have found him guilty.

[30] Aggravating Factors: Mr. Gracia has a criminal record. While it is true that there are no convictions for pimping offences in his past, and that some of the offences are dated and unrelated to the matters at bar (2011 convictions for possession of a controlled substance and fail to comply with an undertaking), it is also true that in 2011 he was convicted of assault with a weapon and theft and received a nine month conditional sentence followed by eighteen months of probation. This is clearly an aggravating circumstance with respect to the two assaults on A.P. In the context of those assaults, I also find it aggravating that they each occurred over an extended period of time. It is further aggravating that Mr. Gracia was assaulting his girlfriend.

[31] It is clear from the Pre-sentence Report that Mr. Gracia is not remorseful about his actions. This is an aggravating factor. I wish to be clear, however, that the fact that Mr. Gracia took these matters to trial is not to be held against him. On the other hand, he cannot benefit from the significant mitigating effect that would accrue to him had he pleaded guilty to these counts.

[32] Mitigating Factors: Mr. Gracia displays significant pro-social tendencies. He is close to his family, has an excellent work history, is well educated, and has articulated reasonable goals for the future. I do not find the fact that Mr. Gracia has respected the terms of his release to be mitigating. He was required to do so by the Court and thus it is neutral for the purposes of sentencing. Likewise, I see nothing mitigating in the fact that Mr. Gracia has been seeing a woman since September 2019 and that she is now pregnant. The relationship is recent and the couple do not live together.

[33] When I acquitted Mr. Gracia of human trafficking, I indicated that I did not see a nexus between the two assaults and any exploitation of A.P. Obviously, if I had, he would not have been acquitted of the count of human trafficking. What flows from this is that the sentencing on the two counts of assault, counts that have no legal or factual nexus with the other counts of which he has been found guilty, must result in a sentence served consecutively to the counts of procuring and advertising. I am of the opinion that given that they occurred on different days, they must also be served consecutively to each other.

[34] This is not a case where credit is being sought due to very restrictive bail conditions.

Sentence

[35] Based on the foregoing, I am of the opinion that the appropriate sentence is as follows:

• s. 286.3 procuring: 14 months jail
• s. 286.4 advertise sexual service: 6 months jail concurrent
• s. 266 common assault: 2 months jail consecutive
• s. 267(b) assault causing bodily harm: 3 months jail consecutive

Therefore, the total period of incarceration to be served will be nineteen months. This will be followed by a period of probation of twelve months duration. The conditions of that order will be as follows:

• report within two working days of your release and thereafter as directed by the probation officer or designate;
• you are to have no contact or communication directly or indirectly by any physical, electronic, or other means, with A.P. or any member of her family;
• you are not to be within 250 metres of any place where you know A.P. or any member of her family to live, work, go to school, or frequent.

[36] There will be the following ancillary orders:

• an order that a sample of your DNA will be taken pursuant to s. 487.04. Section 286.3 is a primary compulsory offence;
• an order pursuant to s. 109(1)(a) and/or (a.1) is mandatory given that Mr. Gracia has been found guilty of assault causing bodily harm of an intimate partner where the Crown has proceeded by way of indictment; this order shall be for ten years;

There has been no application by the Crown pursuant to s. 490.012(2).

Released: January 16, 2020

Signed: Justice Berg J.