R. v. Badali, 2016 ONSC 788

CITATION: R. v. Badali, 2016 ONSC 788

COURT FILE NO.: 12-06456G

DATE: 2016-02-01

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: December 7, 2015

Justice b. Glass

Defence Application to Challenge the Constitutional Validity of ss. 212(2) and 212(4) of the Criminal Code of Canada (Repealed in 2014)

[1] Mr. Badali was found guilty of living on the avails of prostitution of a female person under the age of 18 years, one count of procuring an under-18 year old female to prostitution, and one count of obtaining sexual services from a female person who was under the age of 18 years. The first and the third carried minimum custodial sentences.

[2] Mr. Lafontaine moves for a declaration that these mandatory minimum sentences be of no force and effect because they infringe sections 7 and 12 of the Charter and that they are not saved by section 1 of the Charter.

[3] The core foundation for the Defence application is that the sanctions are arbitrary and overbroad thereby offending section 7 of the Charter. In addition, the minimum terms of imprisonment are grossly disproportionate sentences in reasonably foreseeable cases. They violate sections 7 and 12 of the Charter and cannot be justified by section 1. There are less harmful ways to achieve the legislative goals of the legislation for these offences.

[4] There have been other mandatory minimum sentences that have been challenged and found to be in contravention of sections 7 and 12 of the Charter. Those cases do not involve living on the avails of prostitution or engaging sexual services of a person who is younger than eighteen years.

Issues

[5] What are proportionate sentences for sections 212(2) and (4) of the Code?

[6] Are the minimum sentences grossly disproportionate for a fit and proportionate sentence for Mr. Badali?

[7] Would the sentences be grossly disproportionate in reasonably foreseeable circumstances shown in a reasonable hypothetical example?

[8] If the sentences are found to be cruel and unusual punishment depriving a person of section 7 Charter rights to fundamental justice, are they saved by section 1 of the Charter?

Background

[9] Section 212(2) of the Code establishes a minimum custodial sentence of two years with a maximum of fourteen years for anyone found to have lived wholly or in part on the avails of prostitution.

[10] Section 212(4) of the Code carries a minimum sanction of six months imprisonment.

[11] A Criminal Code section carrying a mandatory minimum sentence may be questioned on the basis that it carries a sanction that is cruel and unusual should it be grossly disproportionate for the Defendant being sentenced, i.e. Mr. Badali. An alternative is that the sentence might be challenged if such a sentence would be cruel and unusual on others if found to be reasonably foreseeable. The latter is a result of an inquiry of a reasonable hypothetical example.

[12] On June 30, 2015, I released the judgment finding Mr. Badali guilty of the three counts. I include my summary of the evidence in paragraphs 13 to 33 below so that one can better understand the considerations for this application regarding the constitutional validity of sections 212 (2) and 212 (4) of the Criminal Code:

[13] “The Defendant has been charged with offences pursuant to ss. 212(2), 212(1)(d) and 212(4) of the Criminal Code of Canada. In a nutshell, he is accused of living on the avails of prostitution of a female person under the age of 18 years, procuring that under-18 year old person to become a prostitute, and obtaining sexual services of that under-18 year old person for consideration.

[14] “Pursuant to section 486.4 of the Criminal Code, there is an order banning publication of the names and any information that might identify the complainant and female witnesses at this trial. People are shown in these reasons by initials.

[15] “There is no issue that the complainant, T.S., was 16 years old at the time of the alleged offences in late July 2012.

[16] “The Blue Pearl Spa is the name of the business at which the alleged activity occurred. The location of the spa was 3598 Dufferin Street, Toronto, Ontario. T.S. who used the name Jessica applied for a job at this spa. She testified that she met with the Defendant who asked her for identification but she said she did not have any with her because she was only 16. This was a job interview type of meeting.

[17] “T.S. said that the girls working at the Blue Pearl Spa provided a variety of services ranging from some form of massage to performing oral sexual actions to sexual intercourse. The Defendant told her that she could determine how much she wanted to do with a customer.

[18] “T.S. told the court that at that interview in the Defendant’s basement office at the spa he engaged in sexual intercourse with her and that he paid her some money for that experience; however, she did not remember how much she was paid.

[19] “When a customer came to the spa without an appointment with a specific female attendant, the person working the front desk would call for the girls to come up from the lower level to be viewed by the customer. They would wear some clothing such as a bra, underpants, shoes and a top. They were not coming forward in full street clothing.

[20] “The customer would announce whom he wanted to engage and they would go to a room that the customer had paid to rent. The customer paid at the front desk for the room.

[21] “T.S. worked there for three days. In the room with a customer, she would engage in sexual intercourse. She would be paid separately by the customer. There were showers in each room for the customer to use.

[22] “Rules for cleaning up the used room after completion of working with a customer required the female to clean the room and the shower and to dispose of any garbage including condoms.

[23] “Failure to clean the room well was subject to being fined. Also, if a girl was late for work, she could be fined. The fines were shown on a list found at the Blue Pearl Spa by the police. This procedure was confirmed by T.S.

[24] “Documents seized by York Regional Police Service showed names of female persons, dollar sums of money, references to fines and commissions and pay for managers.

[25] “T.S. told the court that the girls would pay tips to the manager from money paid to them by customers. I interpret this to be commissions. F.K. was a former owner of the Blue Pearl Spa and worked at the spa for about two weeks during the summer of 2012. She had been a female friend of the Defendant and had lived with him previously. She was evasive about commissions as well as about the apartment above the spa, but she said the money handed in by the female persons working with customers was placed into white envelopes and would be pushed through the mail slot for the apartment. The apartment was locked.

[26] “When the police attended with a search warrant, they entered the apartment as well. In that apartment, the officers found many documents with the name of the Defendant and the Blue Pearl Spa noted. Other documents from such businesses as Canadian Tire were addressed to Salvatore Badali at the Blue Pearl Spa. Some documents seized referred to the name of the Defendant as president of the Blue Pearl Spa.

[27] “York Regional Police Service conducted surveillance of Mr. Badali at the residence where he lived. In addition, the police attended the apartment above the Blue Pearl Spa and also entered the spa. When Mr. Badali was observed coming out of the apartment, he had papers in his hand indicating he had brought them from the apartment.

[28] “Within the spa, officers opened lockers in the lower level and found 85 condoms. Envelopes in the reception desk were located.

[29] “One other woman, in addition to T.S., testified about working at the Blue Pearl Spa performing sexual acts with customers. That person did not engage in sexual intercourse but did hand jobs, which I interpret to mean that she performed masturbation of the male client customers. She was J.C. who worked at the spa for 2 months and did not use condoms because she did hand jobs but not sexual intercourse or oral sexual relations. One worked as a manager for 2 shifts and was told by Mr. Badali that he was the owner. She was S.S. and introduced female workers to clients who attended the Blue Pearl Spa. M.G. worked as an attendant and did not offer sexual services. She performed massages only. She did not see condoms at the Blue Pearl Spa. She assumed Mr. Badali was the owner but acknowledged that he never said he was the owner. Mr. Badali told T.S. that he was the boss at the Blue Pearl Spa.

[30] “Mr. Badali was the person who interviewed people applying for jobs at the Blue Pearl Spa. One person understood he was the owner, another that he was the boss, and another assumed he was the owner.

[31] “When Mr. Badali engaged in sexual intercourse with T.S., he had asked for identification and how old she was. She told him that she did not have identification with her. In fact, she had a driver’s licence, but she was only 16. She told the Defendant that she was 19. Mr. Badali did not ask T.S. for any additional information about her age. The Defendant engaged in sexual intercourse with T.S. and after the activity was completed, he gave her some money but she did not know how much.

[32] “Mr. Badali told T.S. to use condoms always. He said she could make a lot of money but did not say a specific amount. She understood she could earn $2,000 to $4,000 a week there.

[33] “T.S. did not shower with customers, but the showers in the rooms were for the customers and for the girls. She performed sexual acts up to and including sexual intercourse.”

[34] Paragraphs 13 to 33 provide the background summary for findings of guilt.

Position of the Defendant

[35] Mr. Lafontaine submits that a mandatory minimum sentence for either of these counts falls into a grossly disproportionate range. The nature of the offences and the circumstances of Mr. Badali should be considered both as minimum sentences and separately as sentences for offences without mandatory minimum sentences.

[36] For example, under section 212(2) before the addition of mandatory minimum sentences, sentences considered a range of sanctions. The age of victims, the length of the relationship, the amount of coercion and violence, and prior criminal record of a Defendant distinguish cases from each other. In R. v. Simmons, 2005 NSCA 39 at paragraphs 41 and 42, the court made observation of examples of a 9 year sentence in a case of young girls working for an offender who had a prior criminal record. In the alternative a 3 year suspended sentence for an adult woman without any prior record running an escort service and pleading guilty to living on the avails of prostitution of adults. The latter example did not involve exploitation, physical or sexual abuse, threats or forcible confinement, but rather demonstrated a mutually beneficial working arrangement.

[37] With respect to section 212(4) of the Code, Mr. Lafontaine highlighted cases in which the sentences spanned a range of 90 days imprisonment to 2 years less a day. Those decisions considered personal circumstances of the person on trial and the nature, severity and frequency of the offending behaviour. Also, under-aged complainants already involved in prostitution or having been drawn into such activity by an accused person as well as abuse of a position of trust by an accused person were considered in those cases. See R. v. Johnston, 2000 16869 (ON CA), R v Dua [1999] O.J. No. 5068 (S.C.J.], R. v. Wilson [1998] O.J. No. 5367 (ON CA), and R. v. Slater 2004 SKQB 301.

[38] Mr. Lafontaine emphasizes that with Mr. Badali’s case, there is no violence involved as there are in some such cases. Further, he submits that the relationship between Mr. Badali and T.S. cannot be viewed as exploitive.

[39] Therefore, counsel for the Defendant suggests that the appropriate sentence for this case for section 212(2) is 6 months in custody and for section 212(4) it is 3 months.

[40] Mr. Lafontaine relies on paragraph 39 of R. v. Nur, 2015 SCC 15 for the suggestion that the mandatory minimum sentences advanced in the Criminal Code for Mr. Badali would mean that he would be sentenced to four times the custodial sanction for section 212(2) and two times the custodial time for section 212(4) than what would be without mandatory minimum sentences here. If that analogy is correct, Mr. Lafontaine describes the sentences as more than just excessive or disproportionate. Rather, he submits that they are grossly disproportionate.

[41] The Defence encourages the court to accept this analysis and in doing so to find that the mandatory minimum sentences contravene section 12 of the Charter.

[42] With respect to a reasonable hypothetical analysis, Defence counsel says that the mandatory minimum sentences would be grossly disproportionate were they imposed on other persons, as distinct from Mr. Badali. Such an analysis considers a reasonably foreseeable application of the law taking into account the kind of conduct the law reasonably may be expected to catch. See paragraphs 59-62 in Nur, supra.

[43] In Canada (Attorney General) v. Bedford, 2013 SCC 72 at paragraph 142, the Supreme Court explored whether the law went too far and took away the security of people in a way not connected to the objective of the law. There, the law was to punish all who live on the avails of prostitution without distinguishing those who exploit prostitutes such as pimps and those who could enhance the safety and security of prostitutes such as legitimate drivers and bodyguards. The bottom line was that the law was too broad. It was grossly disproportionate.

[44] Mr. Lafontaine suggests that sections 212(2) and 212(4) of the Code cannot stand up to a review of a reasonable hypothetical inquiry so that it contravenes section 12 of the Charter.

[45] Even if these penalty sections are in contravention of section 12 of the Charter, one must also consider whether they survive by the provisions of section 1 of the Charter. The Crown has the burden of showing that these sentences have a pressing and substantial objective and that the means chosen are proportional to such an objective. A law is proportionate if (1) the means adopted are rationally connected to that objective; (2) it is minimally impairing of the right in question; and (3) there is proportionality between the deleterious and salutary effect of the law. That analysis is found at paragraph 111 of Nur, supra, when the Supreme Court referenced R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103. Chief Justice McLachlin in the same paragraph 111 of Nur, supra, stated “It will be difficult to show that a mandatory minimum sentence that has been found to be grossly disproportionate under section 12 is proportionate as between deleterious and salutary effects of the law under section 1.”

Position of the Crown

[46] On the other hand, the Crown submits that mandatory minimum sentences are valid constitutionally. They reflect Parliament’s intent to make sure that men do not live off the money made by teenage prostitutes or that men do not engage in sexual activity with teenage prostitutes for money or other consideration.

[47] There is a history of legislation addressing the harm of such activities to teenagers from physical, psychological and emotional considerations. Bedford, supra, is one of the recent cases in which the Supreme Court has taken a serious and broad review of the objectives of legislation involving prostitution.

[48] The Crown points out that mandatory minimum sentences have formed a major focal point for the Parliament of Canada seeking to reduce juvenile prostitution since 2005.

[49] With respect to a section 12 test for gross disproportionality, the Crown disputes that these sentences are in this category of consideration. A mandatory minimum sentence is simply a forceful statement of government policy. Provided that Parliament does not invoke a policy of criminal sentences that is so excessive that it is grossly disproportionate, they do not contravene the constitutional norm in section 12 of the Charter.

[50] Even though a sentence is excessive, it is not at the level of gross disproportionality automatically. Only if a sentence is so excessive that it outrages the standards of decency whereby Canadians would term it abhorrent or intolerable might a sentence cross into constitutional forbidden territory. The cases of reaching such a level are rare. R. v. Morrisey, [2000] SCC 39 at paragraph 26, the Supreme Court made this expression.

[51] The bottom line is that a criminal sanction must be more than excessive or unfit before it is grossly disproportionate.

[52] To determine gross disproportionality, there are two steps to take. First, the court decides whether the sanction is grossly disproportionate to the person being sentenced. Should the decision be that the sentence is not so to the defendant, then the court advances to decide whether the mandatory minimum sentence is grossly disproportionate to a reasonable hypothetical.

[53] For the two offences here with mandatory minimum sentences, the Crown submits that proportionate sentences are two years for living on the avails of prostitution and one year consecutive for obtaining sexual services for consideration. These submissions are based on cases advanced by the Crown. The cases took into account denunciation and deterrence when dealing with child related offences in which considerable harm may be inflicted upon the victims. The minimum sentences may be found to be within the range of sentences imposed before the mandatory sentences began and they are alleged by the Crown not to be grossly disproportionate. The Crown notes that the mandatory feature of these sentences naturally raises the bar for the bottom rung of the sentence ladder.

[54] In R. v. Francis, 1995 ABCA 74, [1995] A.J. No. 195, the Alberta Court of Appeal pointed to juvenile prostitution being a pressing social issue and that society sees a significant level of criminal culpability assigned to people who prey upon and victimize young people.

[55] In R. v. Burton, 2013 ONSC 3021, [2013] O.J. No. 2423, Justice G. Trotter of the Superior Court of Justice in Ontario pointed out that juvenile prostitution carries with it the social ills and dangers associated with the dark and dangerous world of prostitution.

[56] In R. v. A.A., [2012] O.J. No. 6256 (S.C.J.) at paragraph 32, Justice B.J. Wein identified persons living on the avails of prostitution as the lepers of the underworld and the decent world whereby pimps add to human degradation and are seen as on a position akin to child molesters.

[57] The Crown’s reference to cases I have just mentioned points to the degree of seriousness of such illegal behaviour that Mr. Scott says shows a foundation for minimum sentences.

[58] The Crown draws on alleged aggravating factors for Mr. Badali. Between 1989 and 2006, Mr. Badali has 19 convictions, the victim was 16 years old when the offences occurred, has experienced a significant victim impact. The Victim Impact Statement points out that although she was involved with the spa for a few days, the experience greatly influenced her embracing the sex trade work at the age of 16 years. The victim states that after she was removed from the spa (by the police), she let herself be treated like an object for a long time. T.S. in her statement says that even today she cannot have a healthy, trusting relationship. She thought her purpose was limited to pleasing men.

[59] When one takes into account a distinction between adult and juvenile victims, there is greater concern. That applies not only with this case but cases of this nature in general with similar circumstances.

Analysis

[60] At the end of the thought process, one is faced with offences of great concern to the Parliament of Canada and to people in general living in Canada. Living on the proceeds of prostitution developed by the sexual activity of minor female sexual participants and engaging in sexual experiences with a minor female person certainly calls for more significant sanctions if one is found guilty.

[61] It appears that historically the courts have imposed custodial sanctions which would not be considered to be minor. If the floor plan for mandatory minimum sentences raises the bottom level of sanction, one might not be surprised that the attention of people charged is caught. The same for the public at large.

[62] Prior to the regime of mandatory minimum sentences, the sentences imposed by courts for these offences allowed for cases that were open to a lesser sentence. Those types of cases can become a hardship when an accused person falls into the category of not being contemplated by the drafters of the legislation. See R. v. Simmons (supra), R. v. Nur (supra), R. v. Oakes (supra) and R. v. Bedford (supra) provide excellent guidance to sentencing courts regarding mandatory minimum sentences.

Would the minimum sentences be over the top of acceptability for the public at large regarding Mr. Badali?

[63] They might not be when one considers the nature of the offences, i.e. juvenile prostitution, the impact upon the victim in this case as shown in her Victim Impact Statement, the commercial feature of making money from the victim’s sexual activity and paying her for sexual activity.

[64] The Defendant has a lengthy criminal record of 19 convictions. Although none involve prostitution, they do include some violence. So, here is a person who has acted against the law considerably and who had shown a willingness to be violent. The violence in his criminal record includes forcible confinement, extortion and uttering threats in 1994 assault in 2003. Obstruction of police and attempt to obstruct justice occurred in 1995. There is one fail to comply with a recognizance. The last criminal conviction occurred in 2006 prior to these offences in 2012.

[65] Although Mr. Badali did not conduct himself violently with the victim in this case, he still engaged a juvenile in the sex trade. This was not an accidental act. One is not left to think that he is just the person who was not contemplated when this legislation was created. The conclusion might be that he is not hard done bye for the minimum sanctions attached to two of these offences. In other words, the Defendant is not facing a minimum sentence that is over the ceiling of acceptability for him.

What about the second phase of consideration?

[66] At the second phase, would such sentences be out of line for persons within a reasonably foreseeable hypothetical situation? I think so. The example in R. v. Simmons above in paragraph 36 wherein a woman received a 3 year suspended sentence for a section 212 (2) conviction is such an example. Further, I can think of a situation that would cause one to say that these two sections never contemplated particular persons. Another example that comes to mind is a young couple who have encountered hard times and conclude that their only salvation is if the female partner engages in sexual experiences for money and her male partner acts to draw in customers. And the female partner is under 18 years of age. She is the one to suggest this economic salvation. The male is arrested and charged with living on the avails of prostitution. In such a situation, the public might very well conclude that the framers of the law never intended the legislation to apply to the male partner.

[67] For section 212(4) of the Code, another example is a young male paying for sexual services such as a kiss with a female person who is under 18 years of age. That appears to be beyond the intentions of the drafters of the legislation.

[68] Mr. Badali is not in the category of this last hypothetical situation.

[69] I interpret examples given by Mr. Lafontaine to be hypotheticals with reasonable foreseeability of gross disproportionality. Also, the examples I have referenced above in paragraph 38 fall within this consideration.

[70] Within the guidance from the Supreme Court in R. v . Nur (supra), a section 12 Charter violation for cruel and unusual punishment is established. Hand in hand with that consideration is a section 7 denial of fundamental justice. Section 1 of the Charter cannot save the impugned sections here because they are far beyond acceptability to society.

[71] Both of the sections fall within gross disproportionality such that there is a Charter infringement whereby both minimum sentences cannot stand.

Conclusion

[72] Having found that the mandatory minimum sentences for both sections 212(2) and 212(4) of the Criminal Code cannot stand, I invoke section 52 of the Constitution Act in declaring that both sections are of no force or effect.

[73] Thus far, counsel have made submissions about the constitutional validity of minimum sentences here. Now that they have been found to be invalid, the parties will move to further submissions about sentences to be considered for Mr. Badali in this case.

[74] The sentence hearing will progress in April. Counsel for both sides have scheduling conflicts that require the hearing to be fixed later.

[75] The parties will establish a schedule for filing further materials for the sentence hearing of Mr. Badali.

Justice B. Glass

Released: February 1, 2016