Court File and Parties

Court File No.: 06-0456G Date: 2016-04-29 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: Salvatore Joseph Badali, Defendant

Counsel: Robert Scott, for the Crown Gregory Lafontaine, for the Defendant

Heard: April 29, 2016

Justice: B. Glass

Order: There is an order banning the publication of the names and identification of the witnesses including the victim.

Reasons for Sentence Following Determination of the Constitutional Validity of Mandatory Minimum Sentences Pursuant to Sections 212(2) and 212(4) of the Criminal Code of Canada

[1] On February 1, 2016, I released reasons for the determination of the constitutional validity of the minimum sentences engaged in sections 212(2) and 212(4) of the Criminal Code. At that time, I determined that the minimum sentences could not stand because they were in contravention of sections 12 and 7 of the Charter of Rights and Freedoms. Pursuant to section 52 of the Constitution Act, 1982, the sections under consideration were held to be of no force and effect.

[2] A sentence hearing was then scheduled to determine sentences for the offences of living on the avails of prostitution from a person under the age of 18 years, obtaining for consideration the sexual services of a female person under the age of 18 years, and for procuring a female person under the age of 18 years into prostitution pursuant to section 212 (1) (d) of the Criminal Code.

[3] Living on the avails of prostitution under section 212(2) of the Criminal Code carried a maximum sentence of 14 years in custody when Mr. Badali was charged with the offence. There was a minimum sentence of 2 years imprisonment. This is count 1 on the indictment.

[4] Procuring the victim for prostitution under section 212 (1) (d) of the Criminal Code carried a maximum sentence of 10 years in custody when Mr. Badali was charged with the offence. There was no minimum sentence. This is count 2 on the indictment.

[5] Obtaining for consideration the sexual services of the victim under section 212(4) of the Criminal Code carried a maximum sentence of 5 years with a minimum sentence of 6 months in custody when Mr. Badali was charged with the offence. This is count 3 on the indictment.

[6] There has been a change in the legislation since July 2012.

Victim Impact Statement

[7] A Victim Impact Statement was filed by the complainant. She describes how her life continues to be impacted by the activities centering on the charges. These activities took place when she was young. She lost the opportunity to enjoy life as a young person. Her sense of self-worth was reduced considerably. T.S. cannot have a healthy and trusting relationship with others because the men with whom she was participating were cheating on their partners. She did not return to school as had been planned.

[8] Although T.S. was involved with the sex trade for a shorter period of time than is experienced by many women, she was young and basically had her innocence taken away from her.

Criminal Record of the Defendant

[9] The Defendant has a record of 19 criminal convictions dating back to 1989 through to 2006. His record covers careless use of a firearm, fraud, fail to comply with a recognizance, forcible confinement, extortion, uttering threats, obstructing police, fail to attend court, attempting to obstruct justice, fail to comply with a recognizance, possession of stolen property, obstructing a peace officer, possession of stolen property, assault, and fail to comply with a recognizance. Mr. Badali served 4 months in jail as the most extensive custodial sentence he has experience.

Considerations for Sentencing

[10] Section 718 contains a comprehensive outline the purpose and principles to be considered when completing the sentencing process for a person. Mr. Badali has experienced several occasions when a criminal litigation court has imposed sentences for him. He is not a first time offender. Nor is he one who comes to this hearing as a naïve person.

[11] The offences here are serious because they involve a young person as a victim engaged in the sex trade. Her Victim Impact Statement tells me that she is one to lose the innocence of a young life with these events. Society has endorsed legislation designed to curb illegal adult actions involving young persons. Such activity should be discouraged not only for the person before the court but also for others in society whereby others do not want to undertake such conduct. He has been to a custodial facility for past conduct, and that has not resulted in him stopping illegal activities.

[12] Drawing a young girl into prostitution, living off the money her sexual activity brings to the enterprise, and obtaining sexual services from the young person are all acts that are not only discouraged by our laws, but also are to be denounced as conduct in which one ought not to be engaged.

The Position of the Crown

[13] The Crown urges the court to impose sentences of 2 years for living on the avails of prostitution, 6 months concurrent for obtaining sexual services from a female person who is under the age of 18 years, and 1 year consecutive to the previous two convictions for procuring into prostitution a female person under the age of 18 years so as to address denunciation, specific and general deterrence.

The Position of the Defendant

[14] The Defence submits that the facts of this case do not warrant custodial time in the ranges submitted by the Crown. The time frame for the criminal activity is short. The extent of sexual actions is not great. There was no physical abuse of the complainant by the Defendant.

[15] Mr. Lafontaine points out that the Defendant spent a week in custody before being release on strict bail terms. When he was released from custody, Mr. Badali was on strict house arrest bail terms only to be out with his surety for about a half a year. Then, the release terms were relaxed to a curfew of 10 p.m. to 6 a.m. and subsequently the curfew was amended to 11 p.m. to 6 a.m. Mr. Lafontaine submits that I consider that the Defendant has been subject to strict bail terms for 44 months and that he be given credit for a year. The week in custody would allow possible credit of 1.5 days for each day for an allowance of 10.5 days. This would address considerations enunciated by the Ontario Court of Appeal in R. v. Downes, [2006] O.J. No. 555 at paragraphs 37 and 46 where 18 months of strict bail terms was credited at 5 months or roughly 1/3 of the time.

[16] The Defendant has been raising his 7 year-old son and takes an active interest in his son.

[17] Mr. Badali is in a permanent relationship with a female partner to whom is engaged with plans to marry in the spring of 2017. His partner is a highly educated university professor.

[18] Several support letters have been filed by persons who are close to Mr. Badali or who have known him for many years and speak with personal knowledge of him.

[19] Among the support letters are medical letters indicating that Mr. Badali has experienced stress from the whole process of this criminal litigation. This information might be taken as an indication that the Defendant is not skating away from these charges and just wanting to move on with his life.

[20] Mr. Lafontaine recommends that if credit were given for pre-trial custody and strict bail conditions over 44 months, the court could consider a conditional sentence. If the court were not prone to impose a conditional sentence, then an intermittent sentence or a low reformatory sentence might be considered as a global sentence. At the hearing regarding the constitutional validity of the two offences with mandatory minimum sentences, Mr. Lafontaine had suggested that for living off the avails of prostitution a sentence of 6 months would address the needs of the victim, society and the Defendant and for the count of obtaining sexual services with a young person under 18 years of age, 3 months custody would be appropriate.

The Sentence

[21] In my reasons regarding the constitutional validity of the two mandatory minimum sentence offences, I determined that they did not withstand the challenge not because they were inapplicable to the Defendant himself but rather for others who would be outside the considerations to be made. In doing so, I noted that the length of the mandatory minimum sentences here might be applicable.

[22] The victim was only 16 years of age. Fortunately, the police happened to act at a time that shut down this involvement shortly after the victim commenced working. Nevertheless, she carries emotional scars from her experience. Drawing a young girl into prostitution is reprehensible. Paying her for sexual experiences when he had to turn a blind eye to her age is without excuse. All acts should be denounced. Both Mr. Badali and others should be discouraged from such activity.

[23] At this stage, I conclude that the conduct of Mr. Badali is serious enough and far-reaching enough that his sentence globally should be 3 years in custody less credit for pre-trial custody of 11 days prior to being released on bail. Although Defence submissions promoted that bail conditions were onerous and restrictive sufficiently to warrant extra credit at sentencing, I am not persuaded that credit of a year should be granted because in effect the house arrest terms were for half a year and then the release terms amounted to a curfew from late in the evening until 6 a.m. Credit for the house arrest will be 45 days. That means that total credit for pre-trial custody and allowance for restrictive bail terms will be 56 days, and I shall round them off at 60 days. The net global sentence is 34 months after credit is given.

[24] The sentences are broken down to 22 months in custody for living on the avails of prostitution under section 212(2), 22 months concurrent for procuring the young victim to become a prostitute, and 12 months in custody consecutive for obtaining sexual services for consideration from the young victim. These sentences reflect denunciation, general and specific deterrence. Mr. Badali has prior experience in the criminal justice system so that he is not in a position to be considered for a conditional sentence.

[25] His relationship with his son and his active participation in raising his son speak well for Mr. Badali.

[26] By way of aggravating circumstances, one might consider that the Defendant has elevated his acts of criminal conduct with these offences. To his credit, he had a gap of 6 years between these charges and his previous convictions.

Conclusion

[27] Mr. Badali is sentenced to 22 months in custody for count 1 pursuant to section 212(2) of the Criminal Code.

[28] The Defendant is sentenced to 22 months in custody concurrent for count 2 pursuant to section 212(1) (d) of the Criminal Code.

[29] Mr. Badali is sentenced to 12 months in custody for count 3 consecutive to counts 1 and 2 pursuant to section 212(4) of the Criminal Code.

[30] There will be a DNA order.

[31] There will be an order that Mr. Badali pursuant to section 490.012 shall register pursuant to the Sex Offender Information Registration Act for 20 years as required by section 490.013 of the Criminal Code.

Note: This decision in writing is the official Reasons for Sentence and takes precedence over the oral reasons read into the record in court.

Justice B. Glass Released: April 29, 2016