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 486.5(1) or (2) of the Criminal Code. These subsections 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 486.5(1) or (2), read as follows:

486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES — (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) OFFENCES – The offences for the purposes of subsection (2) are (a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization; (b) a terrorism offence; (c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or (d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

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.

Ontario Court of Justice

Date: 2022 03 08 Court File No.: Brampton 20-6105-01

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

TAYLOR NEVILLE

Before: Justice P.T. O’Marra

Heard on: November 4, 2021, January 19, and February 7, 2022 Reasons for Sentence released on: March 8, 2022

Counsel: G. Hendry............................................................................................. counsel for the Crown M. McRae........................................................................................ counsel for the defendant

P.T. O’Marra, J.: (Orally)

Overview

[1] Ms. Neville, a former sex trade worker, pleaded guilty to the offence of deriving a material benefit from the purchase of sexual services, contrary to section 286.2 of the Criminal Code of Canada. The offence arose from Ms Neville’s three-way relationship with the victim, KA and her pimp, Nicholas Bennet.

[2] Ms. Neville is now before me for sentencing.

The Circumstances of the Offence

[3] On or about February 25, 2019, the victim, KA met Mr Bennett and Ms Neville. Prior to meeting Mr Bennett and Ms Neville, KA had never worked in the sex trade industry (hereinafter referred to as the “industry”). At the time she was attending university and lived in a hotel close to her school.

[4] Mr Bennet was Ms Neville’s pimp and boyfriend. In 2019, Ms Neville was 20 years old.

[5] The purpose of the meeting was to assist KA in becoming a stripper for her to pay her tuition and rent.

[6] At the direction of Mr Bennett, Ms Neville supplied KA with stripping outfits and shoes to help her get started. Ms Neville coached and taught KA how to talk to clients, what to say and what not to say. KA was also counselled by Ms Neville who she could and could not talk to. Ms Neville advised KA to refer to Mr Bennett as her “man”, which she knew to be a reference meaning her pimp. Ms Neville introduced KA to terms related to the sex trade industry. She was counselled by Ms Neville to offer clients “extras” within the strip club and how much she should charge clients for providing sexual services.

[7] While inside the strip club, Ms Neville monitored KA. If Ms Neville felt that KA was not working hard enough, she would message Mr Bennett.

[8] KA worked approximately six to seven times a week. All the money that she earned from stripping and providing sexual services was turned over to either Mr Bennett or Ms Neville.

[9] On May 6, 2019, while KA was working at the Locomotion Strip Club, she got into a heated an argument with Ms Neville. They attended the dressing room. Ms Neville demanded that KA return her shoes and two or three outfits. KA turned over a pair of clear heels and the outfits. KA left the club.

[10] On May 9, 2019, KA advised Mr Bennett that she no longer was working for him. Mr Bennett told KA that she must pay a “leaving fee” in the amount of $5,000 if she wanted to continue to work in the industry. Over a five-week period, KA e-transferred $5,000 to Mr Bennett and Ms Neville.

[11] As part of the agreed facts of this case, it was conceded that Ms Neville also turned over the money she earned selling sexual services to Mr Bennet, as well.

[12] On May 12, 2020, Ms Neville was arrested. Mr Bennett is a gang member and co-accused in this case. Mr Bennett has not set a date or resolved any of his charges.

Ms Neville’s personal circumstances

[13] Ms Neville recently turned 23 years old. She is a single mother to her one-year-old daughter. Mr Bennett is the father. Ms Neville no longer has any contact nor communication with Mr Bennett.

[14] Ms Neville’s parents separated shortly after her mother found out she was pregnant with her. Her father moved out of the province, and she was raised by her mother.

[15] As a teenager, her relationship with her mother became strained. Her mother had overdosed several times and needed to be hospitalized. As a result, at 13 years old she reconnected with her father and moved in with him in Alberta. Her residency with her father was only three months. After a fight between them, her father drove her to the airport and left her there with no money or food. Upon her return to Ontario, Ms Neville became very independent and distanced herself from her family.

[16] Presently, Ms Neville maintains a close relationship with her mother, and does not have any contact with her father.

[17] Ms Neville attended high school until grade 11 and then dropped out and started to work in the industry. At sixteen years old she met an older male who tricked her into working in the industry. In her letter to the court dated January 18, 2022, Ms Neville stated that stripping evolved into prostitution and performing sexual acts for money very quickly. She was taken to a house by the male in Kitchener where she met another woman. Ms Neville was provided with fake identification. Ms Neville and the other women were either driven by the man or taken by an Uber to Mississauga to work. Throughout the night, the other women would track how much she was earning. At the end of the night, they would get into the car and hand over the money to the male and go home. They would do it all over again the next day. After several months, Ms Neville returned to Mississauga. However, the damage was done. Her view of the industry was set, and the die was cast. Ms Neville thought this was how the industry operated.

[18] Ms Neville has demonstrated insight into her actions and stated in her letter dated January 18, 2022, the following,

The thought of myself putting another female through those things disgusts me. There are not words I can say besides that I am sorry and I’m ashamed of myself and it will never happen again. I have worked very hard to get myself out of the lifestyle and unlearn the things I [was] thought was normal.

[19] In a second letter to the court dated January 19, 2022, Ms Neville further opened up about the impact of the industry has had on her. She stated the following:

The events that took place in my life up until this point were slowly turning me into a monster without me even realizing it. Being placed into a disgusting and disruptive industry and way of living that made me feel unworthy of anyone’s time or attention unless I was selling my body. Making me feel as though living a “normal” life was not possible. Drinking while I was working to make situations bearable. Being put into so many disturbing situations that I started to believe this was normal and not a big deal. Being raped and not caring as long as I was compensated for it. Touched in ways I wish nobody has to experience. I have started to close myself off from any emotion not just romantically but also towards people I could’ve helped just so I would be able to look in the mirror. I’ve tried to forget everything that has happened to me and some memories are still blurred because they were so disgusting my mind won’t let me remember. So many years of doing things my younger self would be ashamed of just to be accepted. It was driving me to become a monster and I didn’t even realize it. I took my anger and frustrations out on everyone around me. I wouldn’t wish that life on anyone and for that reason I am so sick with myself that it’s my fault another young woman got sucked into a life that is otherwise a black hole when I should’ve helped her instead. It has been so difficult dealing with situations that comes with being arrested but I would rather have it this way than to have me continue in a life that I wouldn’t have been able to escape on my own and potentially dragging more people down with me. I am thankful for everything that has happened because it has shown me just how revolting my actions were.

[20] In her letter, Ms Neville demonstrated empathy and extended an offer of restoration to the victim by stating the following.

I plan on continuing to get the help that I need and I feel so much regret and sympathy that because of my mistakes another woman has been put into similar situations. And because of that I would like to pay for any counselling she might need to recover from my actions. I know how much of a weight off my shoulders it has been since I left the industry and I wouldn’t want her to feel stuck and get her wrapped up in situations similar to mine. I’m truly sorry to everyone that I have effected wether [sic] it was directly or just my attitude towards them.

[21] After Ms Neville was arrested, she learned that she was pregnant, and Mr Bennet was the father. After the birth of their daughter in February 2020, the Children’s Aid Society became involved due to the nature of the criminal charges that they had incurred.

[22] Since the Children Aid Society’s intervention a status review dated October 28, 2021, concluded the following.

Taylor Neville has proactively engaged in numerous supports and programs in order to decrease the Society’s concern. Taylor Neville has completed counselling with WCSWR [Women’s Crisis Services of the Waterloo Region], as well as “Safe Steps” program, and completed follow-up with the Society’s in-home parenting program. Further, Taylor Neville consistently availed herself for bi-weekly appointments with HBHC [Healthy Babies Healthy Children]. Taylor Neville has worked cooperatively with the Society and the Society has no concerns about her provision of safe, stable and appropriate care for J….

[23] It is worth noting that due to Ms Neville’s progress the Children’s Aid Society recommended that the Family Court supervision order be terminated.

[24] A presentence report was ordered and prepared. Mr McRae took offence with comments made by the author of the report, Ms Beckford, as well as the officer in charge of the case, Officer Mitchell. Regarding Ms Neville’s character and attitude Ms Beckford stated the following.

The Subject, did not accept responsibility for her actions, initially stated that she did not recall what had occurred however later provided details indicating the that the victim lied. She did not express any remorse for her behaviour or expressed any empathy towards the victim.

[25] Officer Mitchell stated that all though Ms Neville was cooperative during the investigation that phone records confirmed that she was untruthful about the incident to the police. He went on to state how this type of offence “victimizes a person who is already in a vulnerable position…he is of the opinion that the subject sentence should reflect that of the damage to the victim.”

[26] I find those comments and opinions unhelpful. The purpose of the pre-sentence report is to assist the judge in arriving at a just sentence that reflects the relevant circumstances of the offender and accords with the goals of sentencing. Its not to voice the author’s personal views of the offender’s behaviour and attitude. See: R. v. McPherson, 2013 ONSC 1635, [2013] OJ No. 1254; R. v. Green, 2006 ONCJ 364, [2006] OJ No. 3925, paras. 12-16 and R. v. Morgan, 2018 ONSC 2007, para. 13.

[27] The content of a pre-sentence report is stipulated by s. 721(3) of the Code. Unless otherwise specified by the court, the report is to contain information on the offender's "age, maturity, character, behaviour, attitude and willingness to make amends."

[28] The insight by an offender into the inappropriate nature of the conduct proved, is a proper matter of discussion in a pre-sentence report. The existence of insight speaks to the offender's prospects for rehabilitation as well as to gauging the need for the specific deterrence of that offender. I have carefully reviewed the three letters prepared by Ms Neville after her receipt and review of the pre-sentence report and as I have already outlined in specific portions, collectively the letters reflect her profound remorse and empathy towards the victim.

[29] In his book The Law of Sentencing (Toronto: Irwin Law, 2001), Professor Alan Manson states at p. 187: "There is judicial agreement that the PSR should not include any facts or commentary which relate to the offence or the offender's role in it."

[30] In R. v. Bal, [2014] O.J. No. 2645 Trotter J. referred, at para. 13, to the comments of Chief Justice MacKeigan in Regina v. Rudyk (1975), 1 C.R. (3d) S 26, where he stated as follows, at p. S - 31:

I would here urge that a pre-sentence report be confined to its very necessary and salutary role of portraying the background, character and circumstances of the person convicted. It should not, however, contain the investigator's impression of the facts relating to the offence charged, whether based on information received from the accused, the police or other witnesses, and whether favourable or unfavourable to the accused. And if the report contains such information the trial judge should disregard it in considering sentence.

[31] I have disregarded that portion of officer Mitchell’s comments regarding Ms Neville’s integrity and honesty. I also do not think it is within the purview of the officer and outside of the limits of the pre-sentence report to comment on the nature of the sentence to be imposed. In this case, the victim impact statement is a factor that I have taken into consideration. I will turn to that in later in my reasons.

[32] I also accept Ms Neville’s reluctance to open and lay bare her emotions to a stranger regarding her personal life and struggles. These are not matters that are easily discussed during therapeutic and counselling sessions let alone at the parole and probation office.

[33] The pre-sentence report confirmed Ms Neville’s friend Iesha Franklin was contacted. She described Ms Neville as, “sweet, caring, generous and a reliable individual”. A letter of support was submitted by Ms Neville’s mother.

[34] During the time that this matter has been outstanding, Ms Neville has successfully completed a mortgage broker course and wishes to obtain her mortgage broker and or mortgage agent license.

The Victim Impact Statement

[35] KA has been profoundly impacted by this offence. She detailed that she lives in fear for her safety and is concerned over any retaliation from Mr Bennett and Ms Neville. She is hesitant to go into public spaces or hold a public job due to anxiety and feelings of shame. She suffers from anxiety and depression. She feels isolated and is unable to trust anyone. KA was impacted financially as well over missed education opportunities and the lost of money that was turned over to Mr Bennett and Ms Neville.

Position of the Parties

[36] The parties are far apart on sentence.

[37] Mr Hendry, on behalf of the Crown, submitted that the appropriate sentence that I should impose is a conditional sentence in the range of twelve to eighteen months followed by a twelve-month period of probation. The Crown seeks a DNA order.

[38] Based on Ms Neville’s lack of criminal antecedents, a former sex trade worker, a new mother, and the positive notations from various social service agencies, it would not be contrary to the public interest for Ms Neville to serve her sentence in the community rather than prison.

[39] Mr McRae argued that Ms Neville is deserving of a conditional discharge.

The Applicable Legal Principles

[40] Section 286.2(1) of the Code, provides that a person who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

[41] The principles of sentencing are set out in 718 of the Code, which provides as follows:

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.

[42] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This means that, for the sentence I impose to be appropriate, it must be tailored to Ms Neville’s circumstances, and the circumstances of the offence she committed.

[43] In determining an appropriate sentence, it is helpful to consider any relevant aggravating or mitigating circumstances that are presently at play. (See section 718.2(a)) This would include features of Ms Neville’s background, features of the crime she has committed, the timing of her guilty plea, and any other evidence I have received during this sentence hearing. It would also include any legal direction, whether found in the Criminal Code, for example section 718.2(a), or provided by the higher courts, regarding particular aspects of this case that I must give significant consideration to. For example, any evidence that the significant impact the offence had on the victim, considering her age and other personal circumstances, including their health and financial situation. (See section 718.2(a) (iii.1)).

[44] The Crown has relied on higher court decisions of Morgan and R. v. A.M. and M.P., 2020 ONSC 7919 which states that the prevailing sentencing goals in cases of this nature is general and specific deterrence. See: Morgan, para. 17 and A.M. and M.P., at para. 9. However, the facts in both cases are distinguishable from the case here due to a higher degree of moral blameworthiness and the exploitive nature of the relationship. Significant jail sentences were handed down.

Analysis

Mitigating and Aggravating Factors

[45] There are several significant mitigating factors in this case. Ms. Neville pleaded guilty, which was a weighty factor. She resolved her matter before Mr Bennett has set a date for a preliminary hearing or trial. Ms Neville’s guilty plea did take on further importance as there may have been legitimate section 11(b) concern and meritorious triable issues, including an attack on the search warrant for Mr Bennet’s phone, that may have impacted Ms Neville’s privacy interests.

[46] Ms Neville has no previous criminal record. She has been compliant with her release order over the past 22 months.

[47] Ms Neville was a sex trader worker that was exploited and victimized by pimp(s) since she was 16 years old. She was involved in an unequal relationship with Mr Bennet The defence of duress is a high threshold to meet, however, under these circumstances, I consider her vulnerability with very limited options, a mitigating factor.

[48] Ms Neville has a supportive family. She is dedicated to raising her daughter and accessing community-based resources to assist her in parenting and rehabilitation.

[49] In my view, Ms Neville has demonstrated a greater understanding of power and control dynamics and imbalances in equal and healthy relationships.

[50] Ms Neville has obtained a mortgage broker and agent licence and is seeking employment.

[51] Ms Neville advised that she no longer uses drugs and alcohol.

Aggravating Factors

[52] In identifying the relevant aggravating factors, the cases of R. v. Tang, 1997 ABCA 174, [1997] A.J. No. 460 (C.A.), and R. v. Miller, [1997] O.J. No. 3911 (SCJ) are helpful. While these cases really speak to the sentencing of “traditional pimps” of which Ms. Neville is not, they do nonetheless provide a helpful guide in assessing the aggravating facts in the case at bar.

[53] This offence was selfish and involved the calculated exploitation of a vulnerable young woman. Not only did KA have to turnover her earnings to Ms Neville and Mr Bennet, but she also was compelled to buy her freedom. Although Mr Bennet seemed to have the most control over KA, Ms Neville exerted some control over KA in that she made sure monies were turned over at the end of the night to Mr Bennet.

[54] The victim impact statement reflected economic effect that this offence had on KA. She worked six or seven nights of prostitution. She estimated that she was forced to turn over a minimum of $25,000 to Mr Bennet and Ms Neville. She also had to pay the $5,000 “leaving fee”.

[55] I cannot say that this was a sophisticated operation based on the agreed statement of fact. Ms Neville was not the organizer nor the leader of the operation. As already mentioned, Ms Neville was a sex trade worker. I infer that Ms Neville had a strong attachment to Mr Bennet as she became pregnant and worked for Mr Bennet. There was no reference to any other sex trade workers that were involved aside from KA. In my view, this was a small operation with little planning involved.

[56] There was no suggestion of any type of risky behaviour (other than the inherent risks attached to prostitution).

[57] The exploitive nature of the relationship lasted approximately 2 ½ months.

[58] There was no reference to explicit threats, no implied threats were referenced in the agreed statement of fact and no actual threat of violence was used. However, there was an argument that led to KA leaving the operation. KA indicated a general fear for her safety, but specifically she fears that Ms Neville will retaliate against her. However, the reasons for this fear were never detailed.

[59] There was no reference of KA having to perform sexual favours to either Ms Neville or Mr Bennet.

[60] KA confirmed that she lives with the shame and guilt over the abuse. KA’s feeling of mistrust and isolation will endure long after Ms Neville completes her sentence. However, I note that Ms Neville’s sex trade experiences and exploitation have left the same psychological and emotional damage.

The Fit and Appropriate Sentence

[61] Section 730(1) of the Code sets out the statutory test for the court to apply in deciding whether to grant a conditional discharge. The test is twofold. The court must be satisfied that it is in the best interests of the accused and the court must be satisfied that it is not contrary to the public interest that the accused receive a discharge. I am mindful of the guidelines set out for the imposition of a conditional discharge by the Ontario Court of Appeal in the case of R. v. Sanchez-Pino, (1973) 11 C.C.C. (2d) 53.

[62] The condition precedents do exist in this case for the imposition of a discharge as the offence does not have a minimum punishment prescribed by law nor does the maximum penalty exceed 14 years or more. Finally, the offence does not involve an organization.

[63] I have not found any reported decisions in this country where a conditional discharge or a suspended sentence was imposed for an offence contrary to section 286.2 of the Code. Nevertheless, discharges are not restricted to trivial matters. See: Regina v. Vincente (1975), 18 Crim. L.Q. 292 (Ont. C.A.).

[64] This case is factually somewhat like R. v. Robitaille, 2017 ONCJ 768 where an eight-month sentence was imposed. However, this case involved a s. 286.2(2) offence in relation to persons under 18, and a finding that the 2-year mandatory minimum was unconstitutional. The defence argued for a suspended sentence or alternatively a conditional sentence. Aside from the fact that the two victims were underage and vulnerable there were other aggravating features to that case that are not present in the case at bar.

[65] The Court of Appeal in R. v. Joseph, 2020 ONCA 733 made the following comment on Robitaille when considering range of sentence for a section 286.2 offence:

What is the appropriate range of sentence for the crimes Mr. Joseph is convicted of committing? In R. v. Miller, [1997] O.J. No. 3911 (Ont. Gen. Div.), at para. 39, the court offered a sentencing range for the now-replaced offence of “living off the avails of prostitution” of 12 months to five years. Citing changes in the sexual commodification offences, as well as the more developed appreciation of the nature and harm of such offences, the Crown offered a sentencing range for our consideration of 12 months to eight years imprisonment. Mr. Joseph agrees, citing the 12 months to eight years sentencing range identified by Brothers J. in R. v. Webber, 2019 NSSC 265, at para. 57, for the related offence of receiving a financial benefit from the offence of trafficking in a person under the age of 18, contrary to s. 279.02 of the Criminal Code.

140 We are satisfied, however, that the low end identified by the Crown and Mr. Joseph is an appropriate marker or guidepost. Webber, at paras. 45, 46, and 49, cited examples of one-year sentences imposed for the offence of “living off the avails of prostitution” in R. v. Simmons, 2005 NSCA 39; R. v. Almond, 2006 BCSC 1706; and R. v. Lukacko (2002), 59 O.R. (3d) 58 (Ont. C.A.). Although it will be uncommon, in exceptional circumstances even lower sentences may be imposed for sexual commodification offences, such as the eight-month sentence in R. v. Robitaille, 2017 ONCJ 768, 400 C.R.R. (2d) 51 (Ont. C.J.), a case addressed in more detail below. (Emphasis added)

[66] In R. v. Hargreaves, 2016 QCCQ 1943 which was also cited in Robitaille where two years less a day conditional sentence was imposed for the previous “living off the avails” offence. This was another instance of a youthful female offender from difficult circumstances, but there were also other charges involved including drug offences. Unfortunately, the decision did not provide a particularly detailed description of the nature of the prostituted-related offences.

[67] In terms of a discharge or a suspended sentence, in Alberta under the former “living on the avails” provision a court did impose a conditional discharge, R. v. Manion, 2005 ABPC 35. Factually though it was a typical case from the era involving an owner of an escort agency that operated from the yellow pages – which obviously is a distinguishing feature, and as a result, is not a fair case to compare. However, it does assist in establishing the bottom of the range for the precursor offence provision.

[68] Most reported cases seem to either reflect the range as described in the Joseph decision or tend to involve a whole slew of other offences which inevitably drive the sentences higher.

[69] The imposition of a conditional discharge for this offence would be an exceptional sentence and outside of the range. However, in justifying an exceptional sentence the Supreme Court in R. v. Nasogaluak, 2010 SCC 6, at para. 44 stated,

[I]t must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred.

[70] In R. v. Lacasse, 2015 SCC 64, at paras. 57-58 the court added the following,

Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case.

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The 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.

[71] In R. v. Pham, 2013 SCC 15, [2013] 1 SCR 739, at para. 9:

As a corollary to sentence individualization, the parity principle requires that a sentence be similar to those imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b) of the Criminal Code). In other words, “if the personal circumstances of the offender are different, different sentences will be justified” (C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at §2.41)

[72] The task at hand is for me to determine whether a non-custodial sentence is to be imposed. In my view, the principles of sentencing will not be served if I sentenced Ms Neville to a custodial sentence to be served in the community as suggested by the Crown.

[73] I now turn to whether the imposition of a discharge is appropriate in these unique circumstances.

Is it in Ms Neville’s best interests to grant a discharge?

[74] Where a criminal record will tend to interfere with employment, a discharge should be given serious consideration: Regina v. Myers (1978), 37 C.C.C. (2d) 182 (Ont. C.A.) at 184-5 per Martin J.A.; Regina v. Culley (1977), 36 C.C.C. (2d) 433 (Ont. C.A.), at 435 per Martin J.A.

[75] A discharge is appropriate where the negative consequences of a conviction, whether immediate or potential, outweigh any value gained by stigmatizing the offender with the stamp of a criminal record. A discharge is the most appropriate sentence where the defendant is of prior good character, the offence represents an isolated occurrence, and a conviction may have adverse effects upon the accused’s future which is disproportionate in the circumstances. See: R. v. Elsharawy, [1997] N.J. No. 249 (CA) at para. 32.

[76] In assessing whether to impose a discharge, the first criterion presupposes that a person of good character, usually without a previous conviction and that criminal conviction may have significant adverse repercussion. According to the FSCO guidelines disclosing a conviction for Ms Neville will trigger a suitability review. There is a risk that given the facts and circumstances of this particular case, that Ms Neville may be deemed unsuitable for a real estate license.

[77] There is no question that a discharge is in Ms Neville’s best interests.

[78] Now, I turn to the second and most difficult question.

Is it not contrary to the public interest to grant a discharge for Ms Neville?

[79] The second criterion involves a consideration of the gravity of the offence and the public attitude towards the imposition of a criminal conviction rather than a discharge. See: Elsharawy, para. 3.

[80] In assessing whether the discharge is contrary to the public interest, general deterrence is only one factor to consider; the paramount factor to consider is what would be an appropriate sentence for the particular accused in the particular circumstances of the case. Further, it must be noted that a greater sentence, such as a suspended sentence is not necessarily a greater deterrent than a discharge. See: R. v. Sears, [1978] O.J. No. 435 (C.A.), at para. 2.

[81] In my view, Ms Neville is at little risk to re-offend in the future. She has made significant strides in changing course. She has availed herself to community-based agencies, she is a new mother, she distanced herself from Mr Bennet, no longer abuses drugs and alcohol and has upgraded her education to start a career in real estate. She is 23 years old with no previous criminal history. She has suffered the humiliation and significant shame for engaging in criminal conduct and is committed to learning from her mistake. A conviction or a conditional sentence is not necessary to deter Ms Neville from future offences or to rehabilitate her. Neither Ms Neville nor the community will be served by imposing a greater sentence than a conditional discharge.

[82] It is the duty of sentencing judges to ferret out those cases amongst the many heard every day where a discharge would benefit society. Experience teaches judges to recognize these cases, which are quite rare when all is said and done. (See: R. v. Berish, [2011] Q.J. No. 18741 (CA), para. 25. In my view, given the unique and exceptional circumstances, this is one of those cases.

Conclusion

[83] The result is that Ms Neville with receive a conditional discharge and placed on probation for a period of twelve months with the following conditions:

(1) Keep the peace and be of good behaviour. (2) Appear before the court when required to do so by the court. (3) Notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change in employment or occupation. (4) Report to a Probation Officer within 7 working days if there are COVID restrictions in place by telephone and thereafter as required and directed by the Probation Officer. (5) Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with KA. (6) Do not attend any place where you know KA to live, work, go to school, frequent or any place you know the person(s) to be. (7) Do not contact directly or indirectly with Nicholas Bennet except for court purposes or in the presence of legal counsel or for the purposes of arranging access to your daughter. (8) Do not possess any weapon(s) as defined by the Criminal Code (for example, a BB gun, pellet gun, firearm, imitation firearm, crossbow, prohibited or restricted weapon, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person).

[84] Section 286.2(1) is a primary designated offence. Therefore, pursuant to section 487.051 of the Code I am ordering the taking of samples from Ms Neville for the purpose of forensic DNA analysis.

[85] The victim fine surcharge is waived in this case.

Released: March 8, 2022. Signed: Justice P.T. O’Marra