ONTARIO
SUPERIOR COURT OF JUSTICE
Editor’s note: Corrigendum released on March 21, 2014. Original judgment has been corrected with text of corrigendum appended.
COURT FILE NO.: 12-R1936
DATE: 2014/02/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Jamie Jamal Byron
Accused
Julian Lalonde, for the Crown
François Dulude, for Mr. Byron
HEARD: December 13, 2013 and
January 20, 2014 at Ottawa, Ontario
DELIVERED ORALLY: February 13,
2014 at Ottawa, Ontario
REASONS ON SENTENCE
Madam Justice B. R. Warkentin
[1] On August 21, 2013 I found Mr. Byron guilty on all 9 counts as charged in the indictment. In counts 1, 2 and 5, Mr. Byron was found guilty of procuring a person who was under the age of 18 for the purposes of engaging in prostitution; that he had aided, abetted or compelled a person under the age of 18 to engage in prostitution and that he was living off the avails of that prostitution. These counts contravened sections 212(1)(a), 212(1)(h) and 212(2.1) of the Criminal Code.
[2] In counts 3 and 4, Mr. Byron was found guilty of exercising control over the movements of a person who was under the age of 18 years for the purpose of exploiting or facilitating the exploitation of that person. He was also found guilty of having received a financial or other material benefit knowing that it resulted from that exercise of control and exploitation. These counts contravened sections 279.011(1), 279.01(1) and 279.02 of the Criminal Code.
[3] In count 6, Mr Byron was convicted of assault contrary to section 266 of the Criminal Code.
[4] In counts 7, 8 and 9 Mr. Byron was convicted of breaches of a recognizance contrary to section 811 and 145(3) of the Criminal Code.
Facts
[5] The victim of the offences in counts 1 through 6 was IB who was 17 years old in the summer of 2011 when these offences occurred. Mr. Byron lured her to Montreal from Windsor through the assistance of a mutual friend on the premise that he desired a romantic relationship.
[6] IB was an orphan who had been diagnosed as bipolar and possibly with Fetal Alcohol Spectrum Disorder. She also had a learning disability. In the summer of 2011, she was a ward of the Children's Aid Society.
[7] Almost immediately after her arrival in Montreal, Mr. Byron informed IB that she belonged to and would be working for him. When she attempted to resist, telling him she was only 17 years of age, Mr. Byron threatened and physically assaulted her.
[8] For the next two months, IB was prostituted and forced to have sex for money with more than 100 men. Mr. Byron collected the entirety of the profits from those encounters and provided IB with a small amount of money with which she was expected to feed and clothe herself. If she resisted either the sexual encounters or attempted to retain the money she was paid, Mr. Byron used force to obtain her compliance. Mr. Byron moved IB on a circuit through a variety of cities including Montreal, Toronto, Barrie and Ottawa.
[9] On August 31, 2011, IB was rescued by the Ottawa Police Service after the manager of the hotel in which she was being forced to work contacted police with concerns that there was prostitution occurring in the hotel and that one of the alleged prostitutes, IB, was only 17 years old.
[10] As a result of the police investigation, Mr. Byron was charged with the counts set out above. After a 10 day trial in May 2013, he was convicted of all counts.
[11] Sentencing submissions were heard on December 13, 2013 and January 20, 2014. At the commencement of the hearing, on consent of the Crown and Defence, count 1 (an offence under s. 212(1)(h)) and count 5 (an offence under s. 212(1)(a)) were stayed.
[12] I also made a number of ancillary orders that were not contested that I have set out at the end of this sentencing decision.
Victim Impact Statement
[13] IB provided a statement in which she wrote of her fear that Mr. Byron would return and force her back into prostitution. For many months after her ordeal, she was afraid to go outside by herself and needed others around her all the time. She continues to suffer from flashbacks and nightmares. She is distrustful of others and is struggling to accept what has happened to her.
Pre-Sentence Report
[14] After his conviction, Mr. Byron participated in a Pre-Sentence Report. That report summarized Mr. Byron’s history.
[15] Mr. Byron is now 24 years of age. He was 21 at the time of these offences. Mr. Byron was born in St. Vincent & the Grenadines and immigrated to Canada (Montreal) when he was 13 years of age. Mr. Byron dropped out of school when he was 16 and advised the author of the Pre-Sentence Report that he believed he has completed Grade 9.
[16] Mr. Byron has worked in a variety of positions in the fast food and retail clothing areas as well as for delivery companies; however, he has never been steadily employed. The longest term of employment he has held has been for a period of one year at a catering company.
[17] At the time of his arrest, Mr. Byron was a regular user of marijuana with modest use of alcohol. The Pre-Sentence Report indicated that Mr. Byron had no history of suffering any kind of abuse, had no problems with anger or significant medical illnesses. He has a supportive family, in particular his mother and siblings as well as the support of a former girlfriend. Mr. Byron’s father was deported from Canada a few years ago as a result of criminal offences.
[18] Through the author of the Pre-Sentence Report, Mr. Byron claimed that he considered that IB was his girlfriend during the time of the offences. He then expressed condolences for what IB had gone through, however, he did not accept responsibility for the offences.
Mitigating and Aggravating Factors
[19] A conviction under s. 212(2.1) of the Criminal Code carries with it a mandatory minimum sentence of 5 years’ imprisonment. This section states:
… every person who lives wholly or in part on the avails of prostitution of another person under the age of eighteen years, and who
(a) for the purposes of profit, aids, abets, counsels or compels the person under that age to engage in or carry on prostitution with any person or generally, and
(b) uses, threatens to use or attempts to use violence, intimidation or coercion in relation to the person under that age,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years but not less than five years.
[20] Similarly, section 279.011 (1) states that:
Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person under the age of eighteen years, or exercises control, direction or influence over the movements of a person under the age of eighteen years, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence and liable
(a) to imprisonment for life and to a minimum punishment of imprisonment for a term of six years if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or
(b) to imprisonment for a term of not more than fourteen years and to a minimum punishment of imprisonment for a term of five years, in any other case.
[21] Thus, two of the counts for which Mr. Byron was found guilty contain minimum sentences of five years’ imprisonment with maximum sentences of 14 years’ imprisonment.
[22] To assist a trial judge in arriving at a “just and appropriate punishment,” Parliament enacted s. 718.2 of the Criminal Code which sets out a number of aggravating or mitigating factors that a judge may consider to increase or decrease a sentence.
[23] The mitigating factors include some of the facts reviewed above. Mr. Byron has only a modest criminal record with two convictions from 2009 where he was convicted for possession of marijuana and for failure to comply with an undertaking.
[24] Mr. Byron has the support of family and a former girlfriend of almost 5 years. He was only 21 at the time of these offences.
[25] The aggravating factors are numerous. IB was only 17 when she was lured by Mr. Byron to Montreal and then forced into prostitution. I found that Mr. Byron knew she was only 17 and he deliberately destroyed her identification.
[26] Some of the other aggravating factors are as follows:
a) At the time of the offences, Mr. Byron was subject to conditions under a recognizance of bail requiring him to abide by a curfew and keep the peace; conditions he ignored;
b) Mr. Byron forced IB to have sex with more than 100 men, while moving IB in a circuit throughout various cities in a clandestine fashion and retaining the funds obtained from the prostitution;
c) Mr. Byron posted semi-nude photos of IB on the internet in advertisements of the sexual services that were on offer. These photos were posted countless times and remain on the internet where they serve to continually victimize IB;
d) Over the period that Mr. Byron controlled IB, he forced her to perform increasingly risky sexual acts with customers; acts that none of the other adult prostitutes who testified at trial would even considering offering to customers;
e) When IB refused to acquiesce, Mr. Byron used force against her to obtain her compliance; and
f) When ultimately arrested and interviewed by the police Mr. Byron lied more than 25 times about his activities, admitting to these lies only when pressed by Crown counsel in cross-examination at the trial.
[27] When provided an opportunity to address the court at the conclusion of sentencing submissions, Mr. Byron claimed he had accepted responsibility for his conduct. He then accused IB and the police of pursuing him on these charges as a form of revenge.
General Principles of Sentencing
[28] The offences for which Mr. Byron is convicted are very serious. Parliament has recently amended the Criminal Code so that sentences for convictions of offences under s. 212(2.1) and s. 279.011(1) each carry a minimum sentence of five years’ and a maximum of 14 years’ incarceration.
[29] A list of sentencing principles and objectives are set out in section 718 of the Criminal Code. These apply when a court considers a fair and just sentence. The principles in that section require that unlawful conduct should be denounced while at the same time deterring the offender and others from committing similar crimes. At the same time, the court is required to consider sentences that assist in rehabilitating offenders; provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community.
[30] The principle of denunciation is an expression of society’s attitude towards the offence committed. It focuses on the aspect of conduct, not on the personal characteristics of the offender. In R. v. M. (C.A.), Justice Lamer of the Supreme Court of Canada wrote that, “In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law.”[^1]
[31] The principle of deterrence is set out in s. 718(b) of the Criminal Code. Deterrence seeks to provide a threat or example to the offender (specific deterrence), or to others (general deterrence), in order to discourage crime by making it clear that criminal behaviour of this nature will result in the imposition of severe punishment.
[32] It is the task of the sentencing judge to assign the relative weight to the particular aspects of each case so that the sentence is shaped in a way that is specific to the accused while following a uniform approach. In doing so, the Court must balance all relevant sentencing principles with the aggravating and mitigating factors and the personal background and history particular to each accused.
Analysis
[33] In this case, because there are mandatory minimum and maximum sentences, the range of sentence I am required to impose is between 5 and 14 years. Parliament, by increasing the mandatory minimum sentence, has emphasized the need for denunciation and both specific and general deterrence in all cases that involve human trafficking and living off the avails of prostitution of someone who is under the age of 18.
[34] Counsel for Mr. Byron is seeking a five year sentence less credit for the time that Mr. Byron has spent in custody since his arrest on these charges on the basis of 1.5 days for each of the 849 days he has spent in custody, totalling 1,273 days or approximately 4 years and 8 months.
[35] Crown counsel is seeking a term of incarceration of 10 years less the period of custody between Mr. Byron’s arrest and today of 849 days or approximately 2 years and 4 months with no additional credit.
[36] All cases of this nature must be taken very seriously. Young people must be protected from being trafficked, exploited and abused in this fashion. Sadly, in this era of social media and the use of the internet, the on line advertisements for sexual services continually victimize those who have been forced into prostitution against their will because it is impossible to remove those images from the internet. This is particularly tragic when the individual is a minor, as was IB.
[37] It is noteworthy that Mr. Byron was only 21 years of age at the time of these offences. There was no evidence to suggest that he was operating as part of an organized crime syndicate in human trafficking. He has no other convictions for serious offences.
[38] Nonetheless, Mr. Byron’s conduct was reprehensible. He sold IB to other men for his own profit and forced her to perform sexual acts that were of high risk of harm to her. I do not believe that he has acknowledged that what he did was wrong or the harm that he caused IB. At best he feels sorry for her.
[39] Because the offences for which Mr. Byron was convicted are linked to the same series of events in the summer of 2011 when Mr. Byron lured IB to Montreal and forced her into prostitution, it is appropriate that the sentences on all counts be concurrent.
[40] I have reviewed the case law supplied by counsel and while it was helpful, much of it was decided prior to the enactment of the 5 year minimum sentences.
[41] Having considered all of the submissions of counsel, their respective positions on sentence and the case law to which I have been referred, I am of the view that a sentence of 6 years’ incarceration, less time served of 849 days, without additional credit, is the appropriate sentence for these offences.
[42] I also impose the following conditions:
a) Pursuant to sections 490.012(1) and 490.013(2)(b) of the Criminal Code, I make an order that Mr. Byron’s name be added to the Sex Offender Registry and that Mr. Byron comply with the Sex Offender Information Registration Act for a period of 20 years.
b) There will be a mandatory weapons prohibition order pursuant to section 109(1)(a) of the Criminal Code for 10 years.
c) I also make a mandatory DNA order pursuant to section 487.051(2), authorizing the taking of a DNA sample.
d) Finally, I impose a no contact order during your time in custody, with IB and those persons named in the attached Schedule “A”[^2] of these reasons pursuant to s. 743.21 of the Criminal Code.
Madam Justice B. R. Warkentin
Released: February 13, 2014
COURT FILE NO.: 12-R1936
DATE: 2014/02/13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
Jamie Jamal Byron
Accused
REASONS On Sentence
Madam Justice B. R. Warkentin
Released: February 13, 2014
COURT FILE NO.: 12-R1936
DATE: 2014/03/21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Jamie Jamal Byron
Accused
Julian Lalonde, for the Crown
François Dulude, for Mr. Byron
HEARD: December 13, 2013 and
January 20, 2014 at Ottawa, Ontario
DELIVERED ORALLY: February 13,
2014 at Ottawa, Ontario
CORRIGENDUM TO REASONS ON SENTENCE
(Released February 13, 2014)
Madam Justice B. R. Warkentin
[43] Corrected decision: The following paragraph replaces the corresponding paragraph in the original Reasons on Sentence issued on February 13, 2014:
[23] The mitigating factors include some of the facts reviewed above. Mr. Byron has only a modest criminal record with two convictions from 2009 where he was convicted for possession of marijuana and for failure to comply with an undertaking.
Madam Justice B. R. Warkentin
Released: March 21, 2014
COURT FILE NO.: 12-R1936
DATE: 2014/03/21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
Jamie Jamal Byron
Accused
CORRIGENDUM TO REASONS ON SENTENCE
Madam Justice B. R. Warkentin
Released: March 21, 2014
[^1]: 1996 SCC 230 (SCC), [1996] 1 S.C.R. 500 at para. 81.
[^2]: (The Schedule has not been attached to the published version of these Reasons.)