ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 216/12

DATE: 20130705

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MARK ANTHONY BURTON

M. Cole, for the Crown
D. Moore, for Mr. Burton

HEARD: June 21, 2013

TROTTER J.

REASONS FOR SENTENCE

1. INTRODUCTION

[1] Mr. Burton, an individual with a very long criminal record, must be sentenced for the following offences: (1) a breach of an order made under s. 810.2 of the Criminal Code (for failing to report); (2) another s. 810.2 breach (for being in the presence of someone under the age of 18 years of age); (3) breaches of two separate probation orders for failing to keep the peace (s. 733.1); (4) possession of stolen property under $5000 (s. 354(1)); and (5) the attempted procuring of an individual into prostitution (s. 212(1)(d)).

2. THE OFFENCES

[2] The offences arose from Mr. Burton’s activities in the summer of 2011. Earlier in the year, he had been released from jail after serving a sentence for aggravated assault. Before that, on August 20, 2009, Mr. Burton was made the subject of a s. 810.2 order because it was feared that Mr. Burton would commit a “serious personal injury offence” (SPIO). As a result of that order, he was under the supervision of a special unit of the Toronto Police Service (TPS) during the relevant period of time.

[3] During the summer of 2011, and by his own account, Mr. Burton was actively involved in trafficking in cocaine and associating with two women who were prostituting themselves. Under the strict terms of the s. 810.2 order, he managed to commit the offences listed above. The facts of these offences, as well as the facts relating to numerous other offences on which I entertained a reasonable doubt about Mr. Burton’s guilt, are set out in my Reasons for Judgment following the trial: see R. v. Burton, 2013 ONSC 2160.

[4] Of particular importance to this sentencing decision are Mr. Burton’s convictions for attempting to procure a person (referred to as “A.T.” in my previous reasons) into prostitution and the count of breaching his s. 810.2 order by knowingly being alone with someone under the age of 18 (i.e., A.T.). The relevant facts of these offences 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.

[5] I also found that, because Mr. Burton knew that A.T. was 16 at the time, he was in breach of a condition of his s. 810.2 order. Mr. Burton entered pleas of guilty to breaching the reporting condition of this same order, and to possessing the stolen Vespa. Lastly, I found Mr. Burton guilty of breaching two separate probation orders that required him to keep the peace and be of good behaviour.

[6] During these sentencing proceedings, the Crown filed a Victim Impact Statement 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.

It is difficult to determine whether this expressed concern stems solely from A.T.’s interactions with Mr. Burton, or whether it was as a result, at least partly, of the police telling her that Mr. Burton was a bad person.

3. MR. BURTON’S CIRCUMSTANCES

[7] Mr. Burton is 45 years old. He has 58 previous convictions, including 23 crimes of violence, 10 breaches of probation, 2 sexual assaults, as well as numerous prostitution-related offences. He has breached the same s. 810.2 order four times in the past.

[8] Of particular interest to these charges, in 1991, Mr. Burton was convicted of exercising control over a 15-year-old female engaged in prostitution. In March of 1992, he was convicted of exercising control over two females, who were 13 to 15 years old. He employed both of them as prostitutes. He sexually assaulted them. He provided one with drugs and burned the ankles of another with cigarettes. He received a sentence of five years’ imprisonment for these offences.

[9] In 1998, Mr. Burton was convicted of living on the avails of prostitution, procuring and exercising control. In this case, the victim was 18 years old. He received a sentence of two years less a day.

[10] As noted above, there are many offences of violence on Mr. Burton’s criminal record. There is also sexual violence associated with his involvement in prostitution, and other acts that are not connected to this aspect of his life. Disturbingly, in 2002, he was convicted of sexually assaulting the 8-year-old daughter of a friend, by ejaculating on her, and possibly in her mouth.

[11] As already noted, Mr. Burton has breached the same s. 810.2 order in the past. In December 2009, in St. Thomas, he pleaded guilty to three breaches of this order and was sentenced to 30 days in custody in total.

[12] On January 19, 2010, he pleaded guilty before Greene J. of the Ontario Court of Justice sitting in Toronto for breaching this same order by failing to report to the police. Her Honour was presented with a joint submission for a suspended sentence. While she imposed the jointly recommended sentence, she expressed great concern (in unreported reasons):

I have some difficulty with the joint submission involved. Had it not been a joint submission, I would have placed you in jail for a long time. I have substantial concerns about the blatant disregard you show for the s. 810.2 peace bond that you were put on, by the fact that you breached not just one, not just two, but three terms of that.

[13] Within a month of being placed on probation by Greene J., Mr. Burton breached that probation order by committing an aggravated assault. Mr. Burton got into an argument with a female acquaintance and punched her in the face, causing a broken jaw and a fractured orbital bone. Mr. Burton was sentenced to a further year imprisonment (in addition to an unspecified amount of pre-trial custody), as well as probation, by my colleague Archibald J. on June 29, 2010.

[14] After finishing this sentence, Mr. Burton became involved in the offences that resulted in the trial before me, including two breaches of the s. 810.2 order and breaches of the probation orders imposed by both Greene J. and Archibald J.

[15] There was not much that is positive or mitigating that Mr. Moore could say about his client. He did point out that Mr. Burton’s mother, to whom Mr. Burton is very close, is elderly and in failing heath. Moreover, Mr. Burton’s time while incarcerated, that being roughly 23 months, has been difficult because he has been in segregation for various reasons. Also, Mr. Burton has a daughter who is 12 years old. They have no contact.

4. POSITIONS OF THE PARTIES

[16] The Crown originally wished to commence dangerous or long-term offender proceedings against Mr. Burton under Part XXIV of the Criminal Code. I was asked to provide a preliminary ruling on whether, based on the facts as proved at trial, the offence of attempting to procure A.T. into prostitution constituted a SPIO for the purposes of s. 752 of the Criminal Code. I found that it did not: see R. v. Burton, 2013 ONSC 3021. Accordingly, sentencing proceeded under Part XXIII of the Criminal Code.

[17] For the Crown, Mr. Cole urged me to give Mr. Burton no (i.e., zero) credit for pre-trial custody and impose an additional two years’ imprisonment in total, to be followed by a 3-year term of probation.

[18] On behalf of Mr. Burton, Mr. Moore submitted that he should receive credit on a 1.5:1 basis for his time in custody, based largely on the difficulties associated with segregation. More generally, he submitted that a total sentence of 3 years’ imprisonment, less pre-trial custody credited as noted, would be a proportionate response to Mr. Burton’s offending.

5. ANALYSIS

[19] This is not an appropriate case to grant no credit for pre-trial custody. Nor is it appropriate to exceed credit on a 1:1 basis. Apart from vague references to segregation, there was nothing before me that would justify elevating credit based on the conditions of pre-trial confinement. Moreover, given Mr. Burton’s record, it is highly unlikely that he is currently a candidate for early release on any basis: R. v. Summers (2013), 2013 ONCA 147, 114 O.R. (3d) 641 (C.A.), at para. 117. Therefore, I grant him credit on a 1:1 basis, amounting to 23 months.

[20] In sentencing a person such as Mr. Burton, it is important not to become unduly focused on his past to such an extent that proportionality gets lost in the equation: R. v. Legere (1995), 1995 1551 (ON CA), 22 O.R. (3d) 89 (C.A.). While protection of the public is a critical goal in any sentencing proceeding, Mr. Burton must be sentenced for what he has been found guilty of doing. Also, sentences must not attempt to make up for past sentences which, with the benefit of hindsight, might seem unduly lenient.

[21] The most serious offence faced by Mr. Burton is the offence of attempting to procure someone into prostitution, contrary to s. 212(1)(d) of the Criminal Code. The offence carries a maximum sentence of 10 years’ imprisonment, for both the full offence and for an attempt. On one level, Mr. Burton’s offending might be said to attract a sentence at the low end of the range, similar to the non-custodial sentence imposed on appeal in R. v. Barrow (2001), 2001 8550 (ON CA), 155 C.C.C. (3d) 362 (Ont. C.A.). After all, there was no violence, nor threats of violence on Mr. Burton’s part. The complainant, A.T., simply said she was not interested. As Mr. Burton was arrested immediately afterwards, the conduct terminated.

[22] However, Mr. Burton’s offending must be viewed in context. Unlike Barrow, supra, and numerous other cases, this case involved the attempt to procure a young person, a 16-year-old girl, into prostitution. As Mr. Burton’s record demonstrates, he has recruited girls of this age into prostitution before, exposing them to danger, and inflicting violence on them himself. I am convinced that Mr. Burton was bent on the same path when he attempted to persuade A.T. to become a prostitute. Indeed, when he saw the police while he was riding on the Vespa with A.T., he crashed the vehicle and fled, creating yet another dangerous situation.

[23] Looking at Mr. Burton’s recent behaviour, in the light of his shameful past, there can be no doubt that, when he is eventually released, Mr. Burton will resume this type of predatory behaviour, focused on the same vulnerable age group of female victims.

[24] Crediting pre-trial custody on a 1:1 basis, the Crown asks me to impose an additional two years for this offence. The goal of this position is to preserve my jurisdiction to impose a 3-year probation order and thereby impose some type of control over Mr. Burton for the next five years. This is a reasonable approach to a serious situation. In light of Mr. Burton’s persistent behaviour, and the real fear of repetition, I am tempted to impose a sentence in the 5 to 6 year range with a view to finally bringing home to Mr. Burton the seriousness of his crimes and to deter others. However, I opt for the longer period of control over his life. Accordingly, after crediting him with 23 months of pre-trial custody on a 1:1 basis, I impose an additional sentence of two years imprisonment in the penitentiary.

[25] The breach of the s. 810.2 order involving contact with a person under the age of 16 years is a serious breach of the order. At its heart, the order was designed to protect society in general, but particularly women and teenage girls, Mr. Burton’s preferred class of victim. Mr. Burton has blatantly flouted this order since it was imposed. Until now, the consequences have been rather minimal. Mr. Burton treated this protective order as if it were a joke. When the police went to check on Mr. Burton at various locations in the summer of 2011, he complained that he did not need to be babysat by the police. Apparently he did, because all the while, he was selling crack cocaine (according to his own evidence), an uncharged breach of the same order. He was hanging around with prostitutes, who purchased drugs from him. Of course, he cannot be punished for this behaviour. But it does shed some light on his attitude to court orders. But Mr. Burton crossed a significant line and committed a serious breach when he attempted to procure the 16-year-old A.T. into prostitution. There was nothing innocent, trivial or benign about this breach.

[26] In all of the circumstances, and in order to vindicate the public protection purposes of the s. 810.2 order, and to act as a deterrent, I impose the maximum sentence of two years’ imprisonment for this breach, concurrent to the sentence on the procuring count: see R. v. Labbe (2006), 2006 36608 (ON CA), 214 C.C.C. (3d) 362 (Ont. C.A.), at p. 364. The breach of the reporting condition is also a significant breach, mostly because Mr. Burton appears to treat these types of conditions as optional or advisory. I impose one year imprisonment on this count, concurrent to the other sentences.

[27] Mr. Burton encounters similar difficulties in complying with probation orders. For the two counts of which I found him guilty, I impose concurrent sentences of one year on each count. It is hoped that sentences for these offences, as well as the s. 810.2 offences, will prevent Mr. Burton from breaching the probation order that I also impose today. Moreover, these escalated sentences for breaching court orders might also be helpful as a starting point for the judges who may be called upon to sentence Mr. Burton in the future.

[28] Lastly, for the possession of the stolen Vespa, I impose another concurrent sentence for one year.

[29] In addition to this custodial portion of the sentence, I impose a 3 year term of probation. A term of probation of this length is necessary to attempt to manage Mr. Burton after he is released from custody. I impose the following extensive list of terms requested by the Crown. I rejected some of the proposed conditions. Most of the following conditions were not resisted by counsel on behalf of by Mr. Burton:

a. Upon completion of the custodial portion of the sentence, report within 24 hours to a probation officer and thereafter as directed by your probation officer;

b. Report once a week in person, specifically each Tuesday, or as directed, to Toronto Police Service, 40 College Street, specifically Detective Constable Scott Peters (5119) or Detective Constable Alexandra Marks (9211) or their designate between the hours of 7am and 1pm;

c. Keep the peace and be of good behaviour;

d. Maintain or actively seek employment;

e. Report your employment status and any change in that employment status to the Toronto Police Service, specifically Detective Constable Scott Peters (5119) directly at (416) 808-7456 or Detective Constable Alexandra Marks (9211) directly at (416)-808-7452 or their designate;

f. Reside at an address approved of by your probation officer;

g. Notify your probation officer and either Detective Constable Scott Peters (5119) directly at (416) 808-7456, Detective Constable Alexandra Marks (9211) directly at (416) 808-7452 or their designate in writing of any change of address or change of employment;

h. Abstain from communication or association directly or indirectly with persons under the age of 18 years, except for his daughter, Brianna;

i. Attend and actively participate in any assessment, counselling, evaluation, or treatment that may be recommended by your probation officer;

j. Sign any waivers, consents or releases necessary to monitor compliance with this and any other condition of your probation order;

k. Abstain from the purchase, possession or consumption of any drugs or drug paraphernalia as defined in the Controlled Drug and Substances Act except as prescribed to you by a medical doctor;

l. Do not possess any weapons as defined in the Criminal Code;

m. Do not apply for or obtain a Firearms Acquisition Certificate, or any gun licence. If you currently have either in your possession, surrender them within 24 hours of your release to Detective Constable Scott Peters (5119) or Detective Constable Alexandra Marks (9211) of the Toronto Police Service;

n. Do not communicate directly or indirectly with Amber Teixeira, Ashley Smith, Erica Lockman, or any members of their families;

o. Do not attend within 200 meters of their place of residence, employment, education or any place they may be at;

p. Do not communicate directly or indirectly with any person known to you to engage in prostitution; and

q. Do not enter into any personal or romantic relationship, cohabitation, marriage or common-law relationship with a person who is the parent or legal guardian of children or young persons under the age of eighteen (18) until that person has been identified to the Toronto Police Service, namely Detective Constable Scott Peters (5119) directly at (416) 808-7456 or Detective Constable Alexandra Marks (9211) directly at (416) 808-7452 or their designate and there has been an opportunity provided to inform that person of your criminal history.

[30] In terms of ancillary orders, I make an order under s. 110 of the Criminal Code for life. I order that Mr. Burton provide a sample of his DNA, pursuant to s. 487.051 of the Criminal Code. Finally, pursuant to s. 743.21, while in custody, Mr. Burton is not permitted to communicate directly or indirectly with Amber Texiera, Erica Lockman, Ashley Smith or anyone under the age of 18 years, with the exception of his daughter, Brianna.

6. CONCLUSION

[31] Mr. Burton is a violent, long-standing recidivist. I have seen no indication of remorse from him in these sentencing proceedings, or in the previous proceedings for which I have had the benefit of transcripts. On the basis of all of the information placed before me, there is every indication that Mr. Burton will offend again. If that occurs, he will likely be the subject of dangerous offender proceedings.

[32] In this sentencing, I have attempted to balance the obvious need to protect the public from Mr. Burton with the imperative that sentences be proportionate to the conduct of the offender. This balancing has led me to impose the global penitentiary sentence of 2 years’ imprisonment, after crediting Mr. Burton with 23 months of pre-trial custody. This is to be followed by a 3-year probationary order, as described above.

TROTTER J.

Released: July 5, 2013

COURT FILE NO.: 216/12

DATE: 20130705

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

MARK ANTHONY BURTON

REASONS FOR SENTENCE

TROTTER J.

Released: July 5, 2013