R. v. Burton, 2013 ONSC 3021
COURT FILE NO.: 216/12
DATE: 20130527
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MARK ANTHONY BURTON
M. Cole, for the Crown
D. Moore, for Mr. Burton
HEARD: May 10, 2013
TROTTER J.
1. INTRODUCTION
[1] The issue to be decided in this Ruling is whether the offence of attempting to procure a person into prostitution (s. 212(1)(d) of the Criminal Code) is a “serious personal injury offence” (SPIO) within the meaning of s. 752. If I conclude that it is, the Crown will seek to invoke the provisions of Part XXIV of the Code to have Mr. Burton declared a dangerous or long-term offender. If I conclude that it is not, sentencing will proceed in the normal course under Part XXIII.
[2] For the reasons set out below, I find that the attempt to procure in this case does not amount to a SPIO.
2. BACKGROUND
[3] I do not intend to review the proceedings and evidence against Mr. Burton in any detail. This was already done in my Reasons for Judgment at the end of the trial (R. v. Burton, 2013 ONSC 2160). Suffice it to mention here, Mr. Burton faced a multi-count indictment containing a number of sexual assault and many prostitution-related offences, as well as offences related to breaches of probation orders and an order made under s. 810.2 of the Code. A majority of the prostitution charges and sexual offences related to two women, A.S. and E.L. Mr. Burton was found not guilty of all of these offences.
[4] Mr. Burton entered guilty pleas to some breach offences and I found him guilty of one count of attempting to procure a person (referred to as A.T. in my previous reasons) into prostitution. The relevant facts in relation to this offence are summarized in paragraphs 10-12 of my previous Reasons:
10 The events relating to A.T. occurred on August 15, 2011. However, A.T. met Mr. Burton a couple of months earlier, outside a youth shelter where she was staying. She was introduced to Mr. Burton by a friend. Mr. Burton identified himself as "Playboy" and apparently said he ran a playboy mansion. He asked her about working the streets as a prostitute. She told him that she was not interested. She said that he put her on the phone to speak to a woman, who told A.T. what it was all about. The encounter ended when Mr. Burton wrote his phone number on a $20 bill and gave it to A.T., with a small amount of marijuana. Importantly, A.T. told Mr. Burton she was 18 at the time.
11 A few months later, on August 15, 2011, A.T. was having money problems. She thought her boyfriend was going to jail and that she would lose her apartment. She called Mr. Burton, looking for help with money. She testified that she made it clear to him that she was not interested in prostitution-related activities. She visited him at what he described as his "studio". She thought she might be going to a recording studio. It was just an apartment. When A.T. arrived, Mr. Burton paid for her cab. Mr. Burton told A.T. her options. She could: pose in nude photos; sit in a room while others smoked crack; work in a massage parlour; or be involved in prostitution. She was put on a phone with someone she described as sounding Chinese. He told her about what would be involved in working at a massage parlour and that she would have to provide oral sex for money. It was at this point that A.T. apparently told Mr. Burton that she was just 16; he told her to say that she was 18. After she got off the phone, she told Mr. Burton that she was not interested. He told her to think about it, and it was left at that.
12 According to A.T., Mr. Burton was driving her home on a Vespa. Neither wore helmets. They were apprehended by the police. Mr. Burton told A.T. to "run" or "dodge" as the bike crashed into a curb. Mr. Burton got away. A.T. did not. After speaking to the police at the scene, they drove her home. A.T. testified that Mr. Burton sent her a text message in which he said that, if she kept her mouth shut, he would give her $200.
I also found that, because Mr. Burton knew that A.T. was 16 at the time, he was in breach of an order made under s. 810.2 of the Criminal Code.
[5] There is another factual component that is important to this Ruling. The Crown filed a Victim Impact Statement (VIS) completed by A.T. In answer to the statement “Please describe how this offence has affected you”, A.T. wrote:
I feel scared for when he gets out and I don’t want any contact with him. I find it hard to trust people that come in my life. I don’t feel safe for when he gets out.
[6] It is important to place this statement in the context of the evidence at trial. A.T. testified that, around the time that she encountered Mr. Burton, she was an extremely heavy user of cocaine, consuming it daily. She also testified that, when she was speaking with the police, they told her that Mr. Burton was very dangerous and that she could have been seriously hurt had she continued to hang around with him. One of the officers denied telling A.T. this, but acknowledged that his partner may have.
[7] I find that A.T. was warned by the police as she says that she was. Her version of events makes sense in the context of the entire scenario. While A.T. said that her boyfriend warned her to stay away from Mr. Burton because he was bad news, I accept that the police also warned her. There was nothing wrong in the police doing so. They were attempting to protect A.T., who was only 16 at the time. Based on Mr. Burton’s extensive and troubling criminal history, the warning was reasonable.
[8] This evidence is significant because it muddies the waters as to the source of A.T.’s expressed fear. It makes it difficult to determine whether her fear resulted from her interactions with Mr. Burton, the warnings from the police or both.
3. ANALYSIS
(a) Introduction
[9] Before engaging in the analysis of the relevant Criminal Code provisions, it is important to set out the parameters of this Ruling. First of all, I am not being asked to determine whether Mr. Burton is a dangerous or long-term offender. I have been asked to make a preliminary ruling on whether, on the facts of this case, the offence of attempting to procure A.T. into prostitution is a SPIO. In this context, the Ruling turns on my findings of fact at trial, and the VIS of A.T. Mr. Burton’s extensive criminal record is irrelevant to this determination, as is the lengthy document (which details Mr. Burton’s previous offences) prepared by the Toronto Police Service in preparation for a previous application under s. 810.2 of the Criminal Code.
[10] Secondly, as part of its submissions, the Crown emphasized the horrors and evils of prostitution, especially when young persons such as A.T. become ensnared in this dark and dangerous world. The social ills and dangers associated with prostitution, and juvenile prostitution in particular, are well-recognized and accepted by social science, and reflected in the legal literature and Canadian jurisprudence: see, for example, R. v. F.E.D., [2009] O.J. No. 819 (S.C.J.), Committee on Sexual Offences Against Children and Youth (Badgley Committee), Sexual Offences Against Children in Canada (Ottawa: Supply and Services Canada, 1984), Special Committee on Pornography and Prostitution (Fraser Committee), Pornography and Prostitution in Canada (Ottawa: Supply and Services Canada, 1985), R. v. Miller, [1997] O.J. No. 3911 (S.C.J.) and Bedford v. Canada (Attorney General), (2012) 2012 ONCA 186, 282 C.C.C. (3d) 1 (Ont. C.A.), per Doherty J.A. at pp. 46-51.
[11] But this Ruling does not call for a panoramic discussion of these well-known harms associated with prostitution. This Ruling is about the legal significance of what actually happened to A.T. and whether it amounted to a SPIO. This analysis does not allow for speculation about what might have befallen A.T. had things gone differently had she not said “no.”
[12] With these preliminary considerations in mind, I turn to the relevant statutory provisions and case authorities.
(b) Statutory Framework
[13] The provisions of Part XXIV (Dangerous Offenders and Long-Term Offenders) of the Criminal Code are triggered by a conviction for a SPIO, which is defined in s. 752 of the Code as follows:
“serious personal injury offence means”
(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person,
and for which the offender may be sentenced to imprisonment for ten years or more, or
(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).
[14] The offence that is at the heart of this application, and which the Crown submits is a SPIO, is found in s. 212(1)(d) of the Criminal Code, which provides:
s. 212. (1) Everyone who
(d) procures or attempts to procure a person to become a prostitute, whether in or out of Canada, …
is guilty of an indictable offence and liable to a term of imprisonment for a term not exceeding ten years.
The section criminalizes both the complete offence in circumstances where the accused is successful in persuading another person to engage in prostitution, as well as unsuccessful attempts. It applies to adult and underage victims. The offence may be committed with or without violence: see R. v. Barrow (2001), 2001 8550 (ON CA), 155 C.C.C. (3d) 362 (Ont. C.A.) and R. v. Deutsch (1983), 1983 3484 (ON CA), 5 C.C.C. (3d) 41 (Ont. C.A.). Due to the maximum punishment that attaches to this provision, it meets the punishment requirement in paragraph (a) of the definition of a SPIO.
[15] Interestingly, s. 752 of the Criminal Code provides a list of “designated offences” and “primary designated offences.” It was not until recently that Parliament included procuring in the list of “designated offences” (see S.C. 2012, c. 1, s. 35). As the conduct relating to Mr. Burton’s conviction under s. 212(1)(d) preceded this amendment, the Crown quite fairly does not seek to rely upon it. It is not clear what significance it would have in any event. The offence of procuring or attempting to procure is capable of being a SPIO; the question is whether it is on the facts of this case.
[16] The triggering mechanisms of Part XXIV of the Code (i.e., the commission of a SPIO) need not involve extreme violence or the infliction of serious harm, even though it often does. A SPIO may involve both completed and inchoate offences (as explicitly recognized in the definition): see, for example, R. v. Byers, [2011] O.J. No. 3129 (S.C.J.) and R. v. Elliott, [2010] B.C.J. No. 1893 (B.C.S.C.).
[17] Also, a SPIO need not be an offence against the person. A good example of this principle is found in R. v. Morgan (2005), 2005 7254 (ON CA), 195 C.C.C. (3d) 408 (Ont. C.A.). The accused was found guilty of criminal harassment, obstruct justice and breach of a recognizance. While on bail for criminal harassment, the accused sent a letter to the complainant, threatening to kill or cause harm to her, her friends and her current boyfriend. The only offence carrying a 10-year term of imprisonment in that case was the obstruct justice charge under s. 139 of the Criminal Code. The Crown relied upon this as the triggering SPIO. The trial judge found the accused to be a long-term offender.
[18] The trial judge dealt with this issue in the context of a full application to have the accused declared a dangerous offender. Importantly, the learned trial judge found as a fact that the accused’s conduct inflicted or was likely to inflict “severe psychological damage” on the complainant and satisfied the definition of a SPIO.
[19] The accused appealed this designation. He did not challenge the learned trial judge’s finding concerning psychological damage to the victim. Instead, he argued that the trial judge erred in concluding that obstruct justice is a SPIO because, even though it carried a sentence of 10 years’ imprisonment, it was not an offence against the person The Court of Appeal rejected this argument. As MacFarland J.A. held at pp. 410-411:
In my view giving the language of s. 752 of the Code its ordinary meaning, it includes the offence of obstruct justice. Had Parliament intended that only offences against the person were capable of meeting the definition of "serious personal injury offence", it would have said so as it did in respect of sexual offences in s. 752(b).
Section 752(a)(ii) sets up two preconditions. First the offence must be one where the offender may be sentenced to 10 years or more. Obstruction of justice is such an offence.
Second, to meet the definition the conduct must be such that inter alia it was "inflicting or likely to inflict severe psychological damage upon another person" here Ms. C. The section requires that the conduct have actually inflicted severe psychological damage on a complainant or be such that it is likely to cause severe psychological damage. It is in this sense that the offence can be said to be a serious personal injury offence. Trivial conduct or conduct de minimis would not meet the severity requirement.
The Court found that there was a reasonable basis for the trial judge to conclude that the complainant suffered the requisite psychological damage as a result of the accused’s conduct.
[20] The contentious issue in this case is whether the commission of the offence under s. 212(1)(d) of the Criminal Code amounted to: (1) the use or attempted use of violence against another person; (2) conduct endangering or likely to endanger the life of another person; or (3) conduct inflicting or likely to inflict severe psychological damage upon another person.
[21] I find that the commission of the offence in this case did not involve the use or attempted use of violence, nor did it amount to conduct endangering or likely to endanger safety or life. Once again, the focus must be on what Mr. Burton actually did, not what might have happened had he persuaded A.T. to engage in prostitution.
[22] I accept that the concepts of violence and endangerment must be given a wide berth, appropriate to the purposes of Part XXIV of the Criminal Code. This is demonstrated in R. v. LeBar (2010), 2010 ONCA 220, 252 C.C.C. (3d) 411 (Ont. C.A.), in which the Court of Appeal considered the definition of a SPIO in the context of the availability of a conditional sentence of imprisonment. Section 742.1 makes a conditional sentence unavailable if the offence is a SPIO.
[23] In that case, the accused committed robbery by producing and threatening to use a 5” knife. The question was whether a conditional sentence was made unavailable because it was a SPIO. The sentencing judge said it was. The Court of Appeal disagreed. Epstein J.A. explained why at p. 421:
In my view, the meaning of "violence" in this definition must be informed by the entirety of the definition of a serious personal injury offence. A serious personal injury offence is defined, in part, either as an offence involving the use or attempted use of violence against another person, or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person." Taken together, and especially taking into account the far-reaching meaning of the word "safety", these two clauses point to the legislature's intention to cover a very expansive range of dangerous behaviour with the term "serious personal injury offence".
A finding that violence was used remains a matter of factual determination for the trial judge. Whether the criminal conduct amounted to the use or attempted use of violence is a matter relating to the circumstances under which the crime was committed. This is not tantamount to an objective assessment of the seriousness of the violence; rather it is a question of determining whether the evidence proves that violence was actually used. [emphasis added]
[24] In keeping with this theme, recent authority cautions against engaging in a qualitative assessment of the alleged harm. That is, it is improper for the courts to read into the definition of a SPIO a requirement that the use or attempted use of violence was “serious” or that the conduct “seriously endangered” or was likely to “seriously endanger” the safety of another person: see R. v. Goforth (2005), 2005 SKCA 12, 193 C.C.C. (3d) 354 (Sask. C.A.), at p. 375 (adopted in its entirety in R. v. Smith, 2010 ONCA 645, [2012] O.J. No. 4485 (C.A.)).
[25] With this broad definition in mind, I am unable to find that what Mr. Burton did (a single attempt to persuade A.T. to work as a prostitute)[^1] involved the use or attempted use of violence or that it was conduct that endangered or was likely to endanger A.T.’s life. He asked; she said “no.” He said “think about it”; she said nothing. Mr. Burton sent her a non-threatening text message, offering her $200 in exchange for her silence. On these facts, it cannot be realistically said that any form of violence or endangerment was present.
[26] In assessing psychological harm, a different approach is required. In this context it is mandatory to engage in a qualitative assessment of the purported harm. The s. 752 definition of a SPIO requires proof of “severe psychological damage.” The decisions in R. v. Goforth, supra, and R. v. Smith, supra, were not concerned with this aspect of the definition of a SPIO.
[27] The cases are clear that “severe psychological damage” is not the equivalent of “any emotional distress.” The standard is much higher. As Karakatsanis J. (then as a member of this Court) said in R. v. Tremblay, [2010] O.J. No. 3450 (S.C.J.), at paras. 75-76:
The meaning of "severe psychological damage" was considered in R. v. Cherry, [1996] O.J. No. 267 paras. 22-24 (Gen. Div.) by analogy to the Supreme Court of Canada definition of "serious bodily harm" in R. v. McCraw, 1991 29 (SCC), [1991] 3 S.C.R. 72, per Cory J. at para. 23 as "any hurt or injury whether physical or psychological that interferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant." The Court in R. v. Cherry also referred to a corresponding definition of "damage" in the Concise Oxford Dictionary [1991], at para. 19, as: "harm or injury impairing the health or normal function of a person." The decision in R. v. Cherry was affirmed, [1999] O.J. No. 144, (C.A.) although the issue of severe psychological harm was not addressed in the reasons of the Court of Appeal.
The concept of severe psychological damage acts as a threshold: not just any level of psychological harm will suffice. While I tend to think that "severe psychological damage" must be something more than "serious psychological harm," I accept that severe psychological damage requires, as a minimum, a substantial interference with the victim's physical or psychological integrity, health or well-being.
[28] The authorities on this point were recently reviewed by Chief Justice Scott in R. v. Steele, 2013 MBCA 21, [2013] M.J. No. 77 (C.A.). The requirements for “severe psychological damage” are nicely encapsulated in this passage (at paras. 80-81):
There is little authority dealing with this particular subsection. One rare example is R. v. Nikolovski (2005), 2005 3328 (ON CA), 194 O.A.C. 258, where there was ample evidence of psychological damage suffered by the victims of a bank robbery. Most authorities appear to focus on whether there is actual evidence of "severe psychological damage," although clause (ii) ("likely to inflict") is disjunctive. In R. v. S.M. (2005), 2005 7254 (ON CA), 196 O.A.C. 127, the court noted that "[t]rivial conduct or conduct de minimis would not meet the severity requirement" (at para. 13). Here, the trial judge noted (at para. 25):
There is an expectation, when a robbery occurs, that there will be fear and such related consequences to those involved. In this case, I am not satisfied that the accused's conduct endangered or was likely to endanger the lives or safety of the cashiers or inflicted or was likely to inflict severe psychological damage upon them.
While "likely to inflict" in subs. (a)(ii) imports an objective standard, given the paucity of evidence before the trial judge in this case and the absence of any expert evidence dealing with the question of psychological damage, there is no support for the suggestion that subs. (a)(ii) applies in the current circumstances, especially keeping in mind that the requirement is for "severe" psychological damage, which means it must be more than trivial or de minimis. See R. v. Tremblay, 2010 ONSC 486 (QL), R. v. Hopley, 2012 BCSC 1329 (QL), and R. v. Walker (2000), 2000 16974 (ON CA), 137 O.A.C. 293.
See also R. v. Thompson, 2009 ONCJ 359, [2009] O.J. No. 3330 (O.C.J.).
[29] In this case, I cannot conclude that the psychological impact of Mr. Burton’s conduct on A.T. approaches the level of being severe. There was no expert evidence called on this issue, although as the cases provide, this is not mandatory. It was not apparent to me that, when A.T. gave evidence, she was at all traumatized by what occurred. Her VIS speaks of feeling fearful of Mr. Burton and not wanting to have contact with him when he is released. This is evidence of some psychological harm, but it does not reach the level of being severe. Moreover, and, as discussed above, it is difficult to determine whether this expression of harm stems from being asked (and simply refusing) to become a prostitute, or whether it arises from things that A.T. has been told about Mr. Burton and her involvement in the court process.
[30] The Crown relies upon the decision in R. v. Tremblay, supra for the proposition that I can rely upon Mr. Burton’s criminal history in deciding whether his conduct amounted to a SPIO. That case involved a dangerous offender application, predicated on a single count of criminal harassment. In determining that the offence was a SPIO, the learned trial judge relied upon the fact that, after the offending conduct, the complainant searched Mr. Tremblay’s name on the internet, learned of his criminal past and became more upset.
[31] On this basis, the Crown asks me to rely upon Mr. Burton’s past in applying the criteria for a SPIO. I decline to do so. R. v. Tremblay, supra is much more limited in its scope. As the learned trial judge concluded in that case, at para. 65:
What Ms. Sciborski learned from the internet was relevant only as it related to Mr. Tremblay’s conduct. Put differently, it is not the history, but the impact of the conduct given what she learned about his history, that caused the psychological damage.
This approach, which, with respect, is not reflected elsewhere in the dangerous offender jurisprudence, is very much limited to the facts of the case. It is also clearly distinguishable from what occurred in this case. A.T. did not learn about Mr. Burton’s extensive criminal record; instead, she was told by the police that he was a dangerous person. It would be unfair to transform what would otherwise not be a SPIO into one based on an accused person’s past offending. While this past will no doubt be a serious aggravating factor on sentencing, it has no definitional value.
[32] Lastly, the Crown places great weight on the decision in R. v. F.E.D., [2009] O.J. No. 819 (S.C.J.) to support a finding of “severe psychological damage.” But that case is different. The 17-year-old complainant was successfully recruited into a life of prostitution. She was forced to work for the accused for a number of months before she refused to do so any longer. The accused was convicted of procuring and living on the avails of prostitution. There was cogent evidence, in the form a VIS in which the victim described how the whole ordeal of being forced into working as a prostitute had scarred her psychologically. She was seeing a psychiatrist. Also, the judge in that case heard expert evidence from two eminent psychiatrists on the issue of psychological harm. This robust record permitted the learned sentencing judge to easily find that the conduct resulted in severe psychological damage and endangered or was likely to endanger the complainant’s life or safety.[^2] The record before me does not permit me to make similar findings.
[33] This is not to say that, on another set of facts, with different victim impact, an attempt to procure a young person into prostitution could not constitute a SPIO based on “severe psychological damage.” By the same token, while most instances of obstruct justice will not constitute a SPIO, the unusual facts in R. v. Morgan, supra did justify this finding. But in all of the circumstances of this case, I find that the Crown has not proved the presence of “severe psychological damage” within the meaning of s. 752 of the Criminal Code.
4. CONCLUSION
[34] It might strike some as passing strange that an attempt to procure a 16-year-old into prostitution does not automatically trigger a dangerous offender application. But this is not what the Criminal Code says. It is open to Parliament to create a list of offences that, however committed, would trigger a dangerous offender application. Offences under s. 212(1)(d) might be included in that list. Until that time, judges must grapple with the definition provided in s. 752, as I have attempted to do above.
[35] I have concluded that Mr. Burton’s offending does not qualify as a SPIO. This is not to say that his conduct is not serious. It is very serious, especially in light of his criminal history. This will be a matter to consider when applying the principles of sentencing in sections 718 to 718.3 of the Criminal Code.
TROTTER J.
Released: May 27, 2013
CITATION: R. v. Burton, 2013 ONSC 3021
COURT FILE NO.: 216/12
DATE: 20130527
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MARK ANTHONY BURTON
RULING
TROTTER J.
Released: May 27, 2013
[^1]: In the facts, reproduced in paragraph 4 above, I referred to the conduct on August 15, 2011, but also events that occurred a few months earlier. The earlier events were used for context only. The time frame of that count in the indictment was such that these earlier events did not figure in the actus reus requirements of the charge.
[^2]: Interestingly, in that case, the Crown did not submit (and the learned sentencing judge did not find) that the conduct amounted to the use or attempted use of violence against the victim.