ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(F) 3882/09 and 1536/11
DATE: 20130319
B E T W E E N:
HER MAJESTY THE QUEEN
S. Martins, for the Crown
- and -
KELVIN McPHERSON
H. Dudding, for the Defence
HEARD: February 20, 2013
REASONS FOR SENTENCE
Baltman J.
Overview
[1] Mr. McPherson was found guilty by a jury of two prostitution related offences under s. 212 of the Criminal Code, both involving the complainant K.H. The convictions were for a) procuring a person to become a prostitute (212 (1)(d) and b) controlling her movements with a view to aiding or compelling her to engage in prostitution, for gain (212 (1) (h).
[2] In addition, Mr. McPherson has pled guilty to one charge of uttering threats against another female complainant, A.A., under s. 264.1(1)(a) of the Code. This offence occurred after the offences related to K.H.
[3] He is now before me for sentencing.
The Facts
(a) Circumstances of the Offence
[4] The Criminal Code sets out two important principles that must guide the sentencing judge in determining the relevant facts following a conviction by a jury. First, s. 724(2)(a) provides that the sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty.” Second, as set out in s. 724(2)(b) and (e), the judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven”. Should any such facts be an aggravating feature, the judge must be convinced of their existence beyond a reasonable doubt.
[5] The sentencing judge is not obliged to arrive at a complete theory of the facts; she is “required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand”: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 (S.C.C.), paras 15-18.
[6] Applying these principles, the following are the relevant facts essential to the jury’s verdicts in this matter. To the extent any of the facts are aggravating in nature, in finding them as facts I have kept in mind the applicable standard of proof beyond a reasonable doubt.
[7] The complainant, K.H., met Mr. McPherson when she was 17, at a nightclub. At that point she was estranged from her family and living with a girlfriend. She and Mr. McPherson became friends and their relationship was initially platonic. When she was 18 he took her to a nightclub and encouraged her to become a stripper, but she declined. After she turned 19 he set her up as a dancer at a club. They moved in together. By then their relationship was sexual and she thought of him as her boyfriend. At his request, she turned over all her earnings to him. Eventually he instructed her to perform various sexual services for club patrons. He supplied her with condoms; gave her a quota of $1,000 per night that she was required to earn and turn over to him; and set out various rules she was to follow.
[8] She worked for him as a prostitute for approximately 1.5 years and gave him most of what she earned. They argued frequently, and after one particularly bad episode she left him. Since then she has returned to high school to obtain a diploma and is now pursuing a social work degree at University.
[9] The charge of uttering threats relates to a separate complainant, A.A., and arose out of her relationship with the offender. She and the offender were in an intimate relationship and living together. On her 19th birthday they had an argument and she packed her belongings and left him to stay at a friend’s place. The offender called her on her cell phone and threatened her, with words to the effect of “if you don’t come home right now, I’m going to kill you”.
(b) Circumstances of the Offender
[10] A pre-sentence report was submitted to the court. Unfortunately, most of it was useless, if not improper, because the probation officer who authored the report included extensive commentary on the offence and the offender’s role in it. In particular, she went on at length about what she viewed as the aggravating features of the crime and the offender’s denial of responsibility for what befell the complainant. Essentially she maligned him for maintaining his innocence, a factor which should be irrelevant given his plea of “not guilty”.
[11] Moreover, at numerous points the author made disparaging remarks about the offender’s behaviour toward the complainant and the justice system, e.g.:
• He drew the complainant “away” from her family and friends, thereby making her “vulnerable and dependent” on him;
• He used “verbal, physical and psychological violence” against her;
• He blames his conviction on a “corrupt justice system”;
• He maintains the complainant “invented the whole story” to get back at him for breaking up with her;
• He perceives that he is the true “victim” in this case.
[12] 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”. The purpose of the report is to help the judge arrive at a sentence that both reflects the relevant circumstances of the offender and accords with the principles and objectives of sentencing. Its goal is not to serve as a forum for the author’s personal views of the offender’s role in the offences. See R. v. Green, 2006 ONCJ 364, [2006] O.J. No. 3925, paras. 12-16 (Trotter J.).
[13] The gross deficiencies in this report are all the more galling given the frustration this Court experienced in procuring a PSR in the first place. On November 2, 2012, immediately following the jury’s verdict, I scheduled the sentencing to proceed before me on January 10th, 2013 and ordered a Pre-Sentence Report to be delivered to counsel and the court “by no later than January 3rd, 2013”.
[14] On November 13, 2012, I received a letter from a probation officer in Montreal advising that due to a backlog in her region, PSR’s generally require twelve to thirteen weeks for completion, and therefore Mr. McPherson’s report could not be produced until February 11, 2013.
[15] Section 720 of the Code provides a “court shall, as soon as practicable after an offender has been found guilty, conduct proceedings to determine the appropriate sentence to be imposed.” Although a time period exceeding three months from the date of conviction for the completion of a PSR is well beyond the usual 6 to 8 week range, given the intervening Christmas break and the lack of objection from counsel I proceeded to reschedule the sentencing for February 20th, 2013. This required considerable re-juggling of schedules by counsel and me, with submissions to proceed at 8:30 a.m. (rather than the usual start time of 10:00 a.m.) on February 20th in order to accommodate other trial commitments previously made for that day by counsel and me.
[16] Moreover, despite the fact that Mr. McPherson had elected to have his trial in English, the correspondence I received from the probation officer was in French. It was therefore necessary for me to stipulate that the PSR must be delivered in English: see my endorsement R. v. McPherson, 2012 ONSC 7127. Despite that directive – which I am satisfied Ontario communicated to the responsible officials in Quebec - Quebec ultimately delivered the report to the Ontario Ministry of Community Safety and Correctional Services in French. To his credit, the Deputy Director of Legal Services within the Ontario Ministry promptly arranged for the report to be translated and delivered to the parties and the court.
[17] After all that, instead of receiving something useful, the parties and the court were delivered a diatribe by a highly partisan and poorly trained probation officer. This is not only a waste of taxpayer’s monies but a disservice to the criminal justice system.
[18] This is not the first case where Quebec authorities have flouted, if not outright ignored, the sentencing requirements set out in the Criminal Code – legislation that is of federal origin and therefore applies to all jurisdictions within Canada. In R. v. K.K., [2012] O.J. No. 1592 (S.C.) Hill J. commented at length about Quebec’s failure to provide an adequate and timely Gladue report, in English, despite clear and repeated directions from the court. In that case he concluded that the “outrageousness” of the state misconduct – a “shameful wrong” that constituted “contempt” for the rights of the offender - required redress in the form of a reduced sentence: see paras. 70-72.
[19] The Crown in this case conceded that much of the report was improper and inflammatory. A redacted version, prepared by defence counsel, was made an exhibit. Needless to say, the redacted portions of the original version form no part of my consideration of the appropriate sentence in this case. What follows is the relevant information from the report, augmented by defence counsel’s submissions at the sentencing hearing.
[20] The offender is 36 years old and grew up in Montreal. His parents divorced when he was 4. At age 15 he left Montreal and moved in with his mother, who lived in Toronto. After he completed secondary school he worked at a variety of jobs for several years, ultimately focussing on the music business, where he worked as a D.J. and sold pirated C.D.’s. He later worked as a manager at BestBuy, but was laid off shortly after this trial.
[21] At some point after these charges were laid the offender moved back to Montreal. He now lives there with his father, step-mother and two half-sisters, and works as a D.J. for two different companies. He has a steady girlfriend.
[22] The offender has a criminal record dating back to 1996, when he was 20 years old. He was convicted of theft (of a motor vehicle), obstructing a police officer and failure to attend court. In 2000 he was again convicted of theft. A third conviction for theft, along with breach of probation, occurred in 2001.
Positions of Crown and Defence:
[23] The Crown asserts that the proper range in this case is 4 years imprisonment. The Defence seeks a conditional sentence.
Analysis:
[24] In R. v. Tang, 1997 ABCA 174, [1997] A.J. No. 460 (C.A.) and R. v. Miller, [1997] O.J. No. 3911 (Gen. Div.) the court listed the factors that may be relevant when considering sentence for procuring and prostitution related offences. They include:
a) The degree of control imposed;
b) The amount of money received and the extent to which the prostitute is allowed to retain the earnings;
c) The age of the prostitute and their numbers;
d) Any special vulnerability of the prostitutes;
e) The working conditions of the prostitutes;
f) The degree of planning and sophistication;
g) The size of the operation;
h) The duration of the exploitative conduct;
i) The degree of violence;
j) The extent to which inducements such as drugs or alcohol were employed by the pimp;
k) The effect on the prostitute of the exploitation, and
l) The extent to which the pimp demanded sexual favours himself from the prostitutes.
[25] When applied to this case, the following factors, most of which are of an aggravating nature, are pertinent:
• The impugned acts began when the complainant was only 19 years old;
• The offender exercised significant control over her, including her work locations, her schedule, and the sexual acts she was required to perform;
• He expected her to meet whatever earning quota he set;
• The offender took most of the money she earned as a prostitute and lived largely off of those proceeds;
• His domination over her as a pimp persisted over a lengthy period – approximately 1.5 years;
• The complainant did not elect to submit a victim impact statement. However, while she eventually managed to extricate herself from the world of prostitution and is now living a productive life, it was clear from her testimony that the offender’s abuse has left a lasting impact.
[26] As noted above, the offender also has a criminal record, albeit dated and unrelated.
[27] The mitigating features include:
• The offender has strong support from his family;
• He is gainfully employed;
• He pled guilty to the charge of uttering threats (relating to the complainant A.A.), although that is a relatively minor component of this case;
• He has been compliant with his bail terms over the past four years.
[28] I do not see this as a case for a conditional sentence. Section 742.1 sets out four criteria a court must consider before deciding to impose a conditional sentence: (1) the offence must be one that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental principles of sentencing.
[29] Unlike similar offences involving complainants under the age of 18, there is no minimum term of imprisonment where, as here, the complainant was 19 when the offence began. And in light of the offender’s stable environment and support system, I think it is unlikely the community would be endangered by a conditional sentence. However, given the severity and nature of this offence I do not think a term under two years is sufficient. Nor do I believe a conditional sentence would be consistent with the fundamental principles of sentencing.
[30] This offence involved a protracted and deliberate subjugation of a young woman in a most demeaning fashion. Although the complainant already had a troubled past before she met the offender, he took advantage of her neediness by first engaging her in a personal relationship and then later turning her into a prostitute. He then lived primarily off the avails thereof. The offender maintained significant control over her for one and a half years. For 18 months he used her body as his wallet. This was a calculated and prolonged abuse, done purely for personal profit.
[31] I have given serious consideration to the fact that the offender is now gainfully employed. If he is incarcerated, he obviously will not be in a position, during that period, to maintain employment, pay taxes, and otherwise contribute to society. In many cases I find that to be a compelling factor favouring a conditional sentence. However, this case requires a strong message of denunciation and specific deterrence.
[32] I also do not believe that a period of incarceration will create a serious impediment to this offender’s ability to reintegrate into society following his release. He is still relatively young. He has strong support from his family in Montreal. And, ironically, some of the very qualities that abetted this crime - intelligence, strategy, and creativity – can, should he so choose, be channelled into legitimate pursuits. Having watched and listened to the offender testify I have no doubt that he has the wherewithal to resume gainful employment upon his release from prison, should he so choose.
Conclusion
[33] After considering all the competing factors, I am of the view that a penitentiary sentence of three years (for the two prostitution related offences under s. 212) is required in this case. In addition, the offender is sentenced to 6 months for the charge of uttering threats, to run concurrently with the three year sentence.
[34] There will also be a firearms prohibition order under s. 110 of the Criminal Code for a period of ten years after his release from incarceration, and a DNA order under s. 487.051. I make the latter order because Mr. McPherson has been convicted of serious offences involving sexual exploitation of a young woman, and there is no basis to believe this would have a disproportionate impact on his privacy or liberty interests.
[35] It is strongly recommended that the offender be incarcerated at a location within or close to Montreal, where his family resides.
[36] Given the serious concerns I have raised regarding the content of the PSR (see paras. 10-19 above), the Trial Coordinator of the Superior Court of Justice in Brampton is hereby directed to send a copy of this endorsement to the Director of Legal Services, Ministry of Community Safety and Correctional Services Ontario. While it may be that the probation services unit within Ontario regularly delegates preparation of a PSR for an out-of-province resident to the provincial government of the offender’s residency, the Ontario government remains obliged to discharge its obligations pursuant to s. 721 of the Criminal Code. It is therefore imperative that Ontario insures that these deficiencies are addressed forthwith, in order to prevent recurrences in any future cases.
Baltman J.
Released: March 19, 2013
COURT FILE NO.: CRIMJ(F) 3882/09 and 1536/11/12
DATE: 20130319
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
KELVIN McPHERSON
REASONS FOR SENTENCE
Baltman J.
Released: March 19, 2013