CITATION: R. v. S., 2016 ONSC 2939
COURT FILE NO.: 13-A12648
DATE: 2016/05/02
PUBLICATION BAN IN EFFECT UNDER S. 486.4(1)
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
R. R. S.
Accused
T. Dobec, for the Crown
J. Harbic, for the Accused
HEARD: March 29, 2016
REASONS FOR JUDGMENT RE SENTENCE
Aitken J.
Background
[1] On December 18, 2015, R.S. was convicted of the following offences under the Criminal Code, R.S.C. 1985, c. C-46: human trafficking (s. 279.01(1)), receipt of a material benefit from trafficking (s. 279.02(1)), withholding documents to facilitate trafficking (s. 279.03), assault (s. 266(b)), uttering a death threat (s. 264(1)), and breach of undertaking (s. 145(5.1)).
[2] The nature of these offences was described in detail in my reasons for judgment released December 18, 2015, and that description is incorporated into these reasons for sentence.
Circumstances of R. S.
[3] R.S.’s circumstances are described as follows in the Pre-sentence Report dated February 2, 2016.
[4] R.S. is 33 years of age. He was born and raised in Jamaica. He is second in a line of seven children born to L.S. and J.C. (deceased in 2004). His mother left the family when R.S. was young and his father subsequently emigrated to Canada. R.S. was raised primarily by his grandmother in Jamaica. He moved to Canada in 1997. Although unemployment and violence was commonplace in Jamaica when R.S. was growing up, according to him, he was not subjected to family violence or abuse during his developmental years.
[5] R.S. completed elementary school in Jamaica. He attended several Ottawa area high schools, but had academic and behavioural difficulties at all. R.S. dropped out of school once he attained 18 years of age. When he was 17, R.S. was diagnosed by the Family Court Clinic as having borderline intellectual functioning, a learning disorder, and possibly a conduct disorder. Opposition to authority and non-attendance at school were also cited as ongoing problems. R.S. was convicted as a young offender of assault, resisting arrest, failure to comply with an undertaking, and obstructing police. Dispositions included probation and both secure and open custodial sentences.
[6] Following his departure from high school, R.S. has held sporadic employment as a cleaner, forklift operator, and scrap metal worker, arranged for him through his father’s employment. Other jobs were in the area of framing, construction, and renovation work with a local contractor. Most of these jobs have been short-term in nature. During lengthy periods of unemployment, R.S. has relied on social assistance benefits. He lived either with the women in his life or at his father’s residence.
[7] When R.S. was 18, he entered into a relationship which resulted in the birth of a son. As a result of a domestic assault against the child’s mother, the Children’s Aid Society became involved. Custody of the child was given to the mother and R.S. had no further contact with the child, who is now 15 years of age. As a result of this domestic assault, R.S. was placed on probation for a period of 18 months. He failed to attend the New Directions partner assault program as directed and was subsequently convicted for failure to comply with a probation order. The following year, R.S. was convicted of further domestic related charges, including two counts of assault causing bodily harm, mischief, and failure to comply with conditions to stay away from the female victim. He was sentenced to a custodial term and a further 18-months of probation. In 2004, R.S. was discharged from the New Directions Program, once again, for non-compliance.
[8] According to the probation officer completing the Pre-sentence Report, the offender’s pattern of criminal behaviour and volatile relationships with women has continued unabated since that time. His longest common-law relationship lasted on and off for approximately five years and resulted in the birth of two daughters, currently aged seven and eight. That relationship ended in 2009.
[9] Prior to his incarceration, R.S. was involved in a one-year relationship with C.M., aged 23 at the time. According to C.M., there was no violence or aggression in their relationship. The relationship ended following R.S.’s arrest.
[10] Although R.S. experimented with drugs and alcohol during adolescence, and has been a regular user of marijuana for years, it does not appear that R.S. is addicted to drugs or alcohol or that drugs or alcohol played a precipitating role in the commission of the subject offences. According to R.S., he has never been a user of hard drugs. In March 2008, R.S. was convicted of possession of a Schedule 1 substance, for which he received a 90-day conditional sentence. He claimed that his involvement with hard drugs was for financial gain, not personal use.
[11] R.S. has been incarcerated since June 18, 2014. While incarcerated, he has been found responsible for several misconducts and has incurred loss of privileges for threatening behaviour towards others.
[12] According to the author of the Pre-sentence Report, R.S. demonstrates minimal insight and assumes minimal accountability regarding his history of criminal behaviour. He attributes many of his criminal convictions to “bad luck with women”. In regard to the subject offences, R.S. blames the victim, A-M. C., for the predicament he is in, saying that her jealousy led her to seek revenge against him. R.S. maintains his innocence, as is his right, and the fact that he does so is not an aggravating factor.
[13] The review conducted by the author of the Pre-sentence Report in regard to R.S.’s previous convictions and dispositions led her to conclude that R.S.’s response to community supervision in the past has been poor and would likely continue to be in the future.
• R.S.’s father described how, over the years, R.S. has been unable to benefit from his support and direction, to maintain employment, or to maintain long-term relationships. R.S.’s response to both open and secure custody while a young offender was described as being unfavourable. He exhibited poor anger management and aggressive behaviour. His opposition to authority was apparent both at home and at school.
• As an adult, R.S. has continued with criminal behaviour right up to the present with offences including numerous domestic related assaults, property related offences, and failure to abide by court orders.
• R.S. has several convictions for failure to comply with court orders or undertakings or failure to comply with probation orders.
• While under supervision or on probation, R.S. failed to take advantage of available programs and counselling, such as New Directions.
• While under supervision or on probation, R.S. continued to engage in criminal behaviour and established a pattern of non-reporting.
R.S.’s Criminal Record
[14] R.S. has 11 convictions for failure to comply with recognizances, undertakings, or probationary orders; four convictions for resisting arrest; seven convictions for assault; three convictions for mischief; two convictions for break and enter; one conviction for forcible confinement; one conviction for possession of narcotics; and one conviction for possession of property obtained by crime. Clearly, R.S. is no stranger to the criminal justice system.
Objectives of Sentencing
[15] In the circumstances of this case, and considering R.S.’s history, the key objectives of sentencing are to protect society, and to denounce this type of criminal behaviour in recognition of the harm done to victims and to the community. R.S. has been convicted of 30 criminal offences and has received various types of sentences as a result. Nothing has deterred him from committing further criminal offences. It is unlikely that any sentence that I may render will have significant rehabilitative qualities, though I must always consider rehabilitation as a possibility. No disposition to date in R.S.’s criminal history has persuaded him that he has any responsibility in regard to the crimes he has committed. It is unlikely that any sentence that I may render will promote in R.S. a sense of responsibility and a realization and appreciation of the harm he has done to A-M. C. and to the community, but again, this has to be a goal of any sentence.
Position of the Crown and of the Defence
[16] The offences of which R.S. stands convicted carry the following maximum sentences:
• Human trafficking (s. 279.01(1)(b)) – maximum of 14 years (and no minimum at the time of the offence)
• Receipt of material benefit from trafficking (s. 279.02(1)) – maximum of 10 years
• Withholding documents to facilitate trafficking (s. 279.03) – maximum of 5 years
• Assault (s. 266) – maximum of 5 years
• Uttering a death threat (s. 264(1)) – maximum of 5 years
• Breach of an undertaking (s. 145(5.1)) – maximum of 2 years
[17] The Crown is seeking a global sentence of six years with R.S. receiving credit for pre-sentence custody on a one-for-one basis.
[18] R.S. is seeking a sentence of time served. Defence counsel argues that R.S. should be given credit at the rate of 1.5 to one for the entire period of pre-sentence custody due to the harsh conditions in the Ottawa Regional Detention Centre and the Lindsay Jail. Using this calculation, the period of custody until the sentencing hearing on March 29, 2016, would be 982.5 days or 32 ¾ months.
Analysis
Aggravating Factors
[19] There are several aggravating factors in this case:
• R.S.’s lengthy criminal record.
• The fact that many of the offences on his criminal record relate to assaults and other offences against women, and the offences for which I am now sentencing R.S. are a continuation of this pattern.
• No form of sentence in the past seems to have had any impact on R.S. in the sense of turning him away from criminal behaviour and getting him to assume some responsibility for his actions.
• R.S. poses a serious threat to women for whom he seems to lack any respect.
• R.S. took advantage of a young woman whom, he realized, was vulnerable. A-M.C. was 19 years of age when the offences occurred. R.S. was significantly older than her.
• Despite knowing that the police were looking for him, R.S. refused to speak with police or turn himself in for a period of 10 months.
• R.S. seems incapable of taking any direction or supervision from his family or from any authority figure and therefore, while his family would like to support him, they have difficulty having an impact.
• In the past, R.S. has shown a total unwillingness to engage in any form of programming that may be of assistance to him in avoiding criminal behaviour – be it counselling or job training.
Mitigating Factors
[20] Defence counsel raises the following factors as being potentially mitigating:
• R.S.’s last conviction for assault was in 2005. Be that as it may, R.S. did not discontinue his criminal activities after that, his last conviction being in 2012 – the year prior to the events in question in this case.
• R.S. was diagnosed as a youth as having a number of psychological issues.
• R.S. was not involved in a criminal organization.
• R.S. did not introduce A-M.C. to prostitution.
• This is nothing like the human trafficking engaged in by some who import girls and women from other countries, keep them confined, and force them into prostitution.
Jurisprudence
[21] In R. v. Tang (1997), 1997 ABCA 174, 200 A.R. 70, 51 Alta L.R. (3d) 23 (C.A.), the Alberta Court of Appeal identified several factors to consider when sentencing someone for offences akin to those of which R.S. has now been convicted.
- The degree of coercion or control imposed by the pimp on the prostitute’s activities.
[22] R.S. directed A-M.C. as to the type of activities to engage in to earn money. He decided when A-M.C. should strip at a club, instead of doing prostitution from condo or hotel rooms. He also decided in what city she should offer her services. That being said, A-M.C. had some input into these decisions. It was because she did not want to strip in Ottawa and possibly be seen by family members that R.S. said they would go to Toronto.
[23] This is not a case where A-M.C. was locked up or physically restrained from leaving. She recounted how after a fight in London, R.S. left the motel room, telling A-M.C. that he was leaving her. A-M.C. was free to leave and return to Ottawa; however, I note that R.S. had all of her money and had taken her cell phone – leaving her with no means of returning home. A third party witness described an event at the apartment of L.F. when R.S. and A-M.C. were in an argument, R.S. assaulted A-M.C., and R.S. told A-M.C. to leave. A-M.C. was crying and begging him to be allowed to stay.
[24] Despite the fact that A-M.C. had some physical opportunities to leave, throughout their relationship, R.S. exerted control over A-M.C. through physical violence, threats of physical violence, emotional manipulation, and financial dependency.
- The amount of money received by the pimp and the extent to which the pimp allowed the prostitutes to retain their earnings.
[25] A-M.C. generated considerable funds for R.S. I accepted her evidence that R.S.’s expectation was that she earn at least $800 per day from exotic dancing or prostitution. The most money she earned in a day was $1,100 to $1,200; the least, when she was working, was $200 to $300. After a few weeks, during which R.S. let A-M.C. keep 40% of her earnings, R.S. took 100% of A-M.C.’s earnings. He paid for their joint expenses and otherwise doled out small amounts of money for A-M.C.’s personal use. He did provide her with a cell phone.
- The age of the prostitutes and their numbers.
[26] A-M.C. was 19 when she started working for R.S. That being said, R.S. did not introduce A-M.C. to prostitution; she had been engaging in this activity on her own the year before she met R.S.
[27] At this trial, we are only concerned with R.S.’s conduct in regard to A-M.C.
- Any special vulnerability on the part of the prostitutes.
[28] A-M.C. was vulnerable due to her estranged relationship with her mother and sister, her young age, her lack of financial resources, and her pregnancy. The level of her vulnerability did not approach what is seen in many human trafficking cases where girls or women are imported from abroad to be exotic dancers and prostitutes.
- The working conditions in which the prostitutes were expected or encouraged to operate, including their physical surroundings in terms of soliciting customers and servicing customers, and safety concerns, in addition to whether appropriate health safeguards were taken.
[29] No evidence was tendered directly on point in regard to health concerns. However, in terms of safety, aside from the usual safety concerns related to prostitution, A-M.C. did not raise any particular concerns in this regard. When she was engaging in prostitution in L.F.’s condominium, R.S. was in the next room and could offer protection. R.S. also drove A-M.C. to some clients’ locales and was available to offer assistance, if required. A-M.C. did not raise safety concerns when she was working at strip clubs or in hotels.
[30] A-M.C.’s evidence, which I accepted, was that R.S. forced her to work on a number of occasions when she was feeling sick.
- The degree of planning and sophistication, including whether the pimp was working in concert with others.
[31] There was minimal planning and sophistication to this operation. R.S. would place advertisements in “backpage” and elsewhere, clients would call the cell number given, and arrangements were made for an appointment. A-M.C. had engaged in this activity on her own before meeting R.S.
[32] In terms of whether R.S. was working in concert with others, R.S. worked alongside L.F., but the evidence was insufficient to allow me to conclude that they were running a joint operation.
- The size of the pimp’s operations, including the numbers of customers the prostitutes were expected to service.
[33] R.S. was running a small operation consisting of A-M.C. The evidence was inadequate to allow me to conclude that he was running any other prostitute. A-M.C. was expected to work very hard each day to generate at least $800.
- The duration of the pimp’s exploitative conduct.
[34] R.S.’s exploitative conduct lasted from May to September 2013 – not a lengthy period of time.
- The degree of violence, if any, apart from that inherent in the pimp’s parasitic activities.
[35] I accepted A-M.C.’s evidence that on a number of occasions she was physically assaulted by R.S. The assaults included grabbing, dragging, hitting, slapping, spitting, and choking. The evidence was inadequate to allow me to conclude that weapons were involved or that A-M.C. suffered anything other than short-term injuries as a result of the assaults. In saying that, I am not minimizing the impact of the assaults and accompanying threats; however, on a scale of what is possible, these assaults were not at the high end.
- The extent to which inducements such as drugs or alcohol were employed by the pimp.
[36] There is no evidence that drugs or alcohol were used to get A-M.C. to do what she did.
- The effect on the prostitutes of the pimp’s exploitation.
[37] A-M.C. declined to submit a victim impact statement.
- The extent to which the pimp demanded or compelled sexual favours for himself from the … prostitutes.
[38] A-M.C.’s evidence was that she and R.S. were in a romantic relationship. The implication of her evidence was that any sexual encounters she had with R.S. were consensual. A-M.C. did not accuse R.S. of forcing himself on her or using sexual assaults or the threat of sexual assaults to get her to do the work she did.
[39] Before determining an appropriate sentence, I, as well, reviewed the following jurisprudence referred to me by counsel: R. v. Byron, 2014 ONSC 990, 90 C.L.R. (4th) 62; R. v. Wallace, 2009 ABCA 300; R. v. Mfizi (2008), 78 W.C.B. (2d) 109 (Ont. S.C.J.); R. v. McPherson, 2013 ONSC 1635; R. v. Bright, 2005 CarswellOnt 7126 (S.C.J.); R. v. A.A., 2013 ONCA 466, 108 W.C.B. (2d) 93; R. v. Newman, 2008 NLTD 51; R. v. Simmons, 2005 NSCA 39; and R. v. Badali, 2016 ONSC 788.
Disposition
[40] What I consider particularly aggravating in the circumstances of this case is R.S.’s lengthy criminal record – particularly in regard to crimes against women. There is no evidence that suggests that R.S.’s attitude toward women has improved. At the same time, his lengthy criminal record shows a lack of respect for court orders – in other words, a lack of respect for the law. I have trouble identifying any factor that mitigates my concern that, once released, R.S. will continue to be a danger to women and will operate in an environment outside of the law. Therefore, protection of society plays a significant role in my sentencing R.S. for the crimes before me.
[41] After considering the jurisprudence referred to above, and the numerous factors reviewed, I conclude that a fair and just sentence is a global sentence of 5 years. Consequently, I sentence R.S. to the following on a concurrent basis:
• Human trafficking under s. 279.01(1)(b) – 5 years
• Receipt of material benefit from trafficking (s. 279.02(1)) – 3 years
• Withholding documents to facilitate trafficking (s. 279.03) – 6 months
• Assault (s. 266) – 1 year
• Uttering a death threat (s. 264(1)) – 6 months
• Breach of an undertaking (s. 145(5.1)) – 6 months
[42] In regard to any credit for time served, as of today, R.S. will have been in custody for a period of 689 days. Of that time, 553 days elapsed between the day of his arrest on June 14, 2014 and the date of his conviction on December 18, 2015. I will allow R.S. credit for this period on the basis of one for one only. R.S. avoided arrest for a period of 10 months after he was aware that the police were trying to locate him. His lengthy criminal record, including 11 convictions for failure to abide by undertakings, recognizances, or probation orders, resulted in his not being released pending trial. R.S. has no one to blame but himself for his failure to make bail. In regard to the period of time from R.S.’s conviction until his sentencing today, a period of 136 days, I will allow R.S. credit on the basis of 1.5 to one for the following reasons. First, R.S. has been housed at the Ottawa Regional Detention Centre and the Lindsay Jail and conditions in those institutions are particularly difficult. Second, while on remand, offenders are not eligible for the type of programming available in the penitentiaries. Third, had R.S. been sentenced immediately upon conviction, the clock would have started to run for eligibility for parole, earned remission, and statutory release. Although R.S.’s behaviour since he has been incarcerated has not been exemplary, and therefore his early release prior to the completion of his sentence may not be likely, he still has been housed in an overcrowded remand centre with no meaningful opportunities for rehabilitative programming. Once R.S. is housed in a penitentiary, his behaviour may improve with improved living conditions and better programming.
[43] As a result of these calculations, R.S. is entitled to credit for 757 days, or approximately 25 months. This leaves a balance of 35 months for R.S. to serve.
[44] In addition, R.S. shall be subject to a weapons prohibition order under s. 109 of the Criminal Code for life.
[45] R.S. shall not communicate directly or indirectly with A-M.C. during his custodial period of his sentence.
[46] R.S. shall provide a DNA sample under s. 487.051 of the Criminal Code.
Aitken J.
Released: May 2, 2016
CITATION: R. v. S., 2016 ONSC 2939
COURT FILE NO.: 13-A12648
DATE: 2016/05/02
PUBLICATION BAN IN EFFECT UNDER S. 486.4(1)
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
R. R. S.
REASONS FOR JUDGMENT RE SENTENCE
Aitken J.
Released: May 2, 2016