R. v. Ellis, 2017 ONSC 3812

R. v. Ellis, 2017 ONSC 3812

COURT FILE NO.: CR-15-00536

DATE: 20170621

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PATRYCK JAMAL ELLIS

Defendant

Michael Ventola, for the Crown

Brian Crothers, for the Defendant

SENTENCING SUBMISSIONS HEARD: April 21, 2017

JUDGMENT DELIVERED: June 21, 2017

GILMORE J.

REASONS ON SENTENCE

Overview

1Mr. Ellis was charged with four offences under the Criminal Code, R.S.C. 1985, c. C-46: procuring a person to have illicit sexual intercourse with another person (s. 212(1)(a)), procuring a person to become a prostitute (s. 212(1)(d)), exercising control, direction or influence over the movements of a person in such a manner as to show that he is aiding, abetting, or compelling that person to engage in prostitution (s. 212(1)(h)) and assault (s. 266).

2After a jury trial in December 2016, Mr. Ellis was convicted on all four counts. All counts related to the victim L.N.

3Counsel agree that the conviction on count 2 (procuring a person to become a prostitute) should be stayed pursuant to the Kienapple principle.

Background Facts

4It is well-known law that a sentencing judge on a jury conviction is not required to come to a complete theory of the facts, but only to make such factual determinations as may be necessary to decide the appropriate sentence.¹ Applying that principle, I find the following are the relevant facts, keeping in mind the applicable standard of proof beyond a reasonable doubt.

5Between August and the beginning of December 2014, when L.N. was 22 years old, she worked as a prostitute for Mr. Ellis. She had no previous experience in the sex trade.

6L.N. and Mr. Ellis met at a party and by July 2014, were engaged in an intimate relationship. Mr. Ellis began to tell L.N. about the money she could earn in the sex trade. L.N. was living at home with her parents and working at two part-time jobs. She was taken in by promises of money and the upscale lifestyle described by Mr. Ellis. Over time Mr. Ellis gained L.N.’s trust.

7Mr. Ellis then groomed L.N. for the sex trade. He took photos of her wearing lingerie and arranged for the photos and an ad to be placed on Backpage.com, a well-known escort website. He showed her how to answer calls and messages from prospective clients and how to collect money and he told her what to charge. He told her he would drive her to her dates, pick her up and take care of her. Although she was required to give the money she earned to Mr. Ellis, she thought, based on what he told her, that they were equal partners in the business and that he was saving the money for both of them.

8As L.N. became more experienced, Mr. Ellis insisted that she work out of town and she was sent to London, Ontario and Calgary. In addition, after a police crackdown on sex workers, Mr. Ellis insisted that L.N. also work as an exotic dancer and provide sexual services on the side. By this point, L.N. was living with Mr. Ellis most of the time.

9As time wore on, L.N. became frustrated. She saw that Mr. Ellis had bought an expensive gold chain and new clothes. When she asked him for money to pay bills he resisted. She began to suspect that this was not the financial partnership she had envisioned. In short, she began to feel that Mr. Ellis was taking advantage of her financially and she began to mistrust him.

10During the course of her relationship with Mr. Ellis, L.N. purchased a new Mercedes. Her parents helped her but she contributed $5,000 from her earnings as a prostitute and $5,000 from savings she had from her part-time jobs prior to meeting Mr. Ellis.

11Matters came to a head between Mr. Ellis and L.N. in November 2014. Mr. Ellis worked part time as a promoter for a nightclub. He and L.N. would often go there to party. On that evening, L.N. became frustrated and tired of being Mr. Ellis’ “girl” and all that entailed in the sex trade world. She told Mr. Ellis she was leaving and going to visit her parents who lived close by. Mr. Ellis became angry. A confrontation ensued in which Mr. Ellis and L.N. began to yell at one another. Mr. Ellis became very angry and grabbed L.N. in the chest area and dragged her out of the booth in which she was sitting. He pulled her towards the back of the club so they could continue their argument away from the club patrons.

12L.N. broke off the relationship with Mr. Ellis at the beginning of December 2014. While returning from a weekend in London where L.N. had been seeing clients at a hotel, she told Mr. Ellis it was over. She no longer wanted to be in the sex trade business. She dropped him off at a mall parking lot on her way back to Toronto.

13L.N. described the break up as a difficult one. Mr. Ellis was resistant when she wanted to retrieve her personal belongings from him. When things began to calm somewhat, L.N. saw Mr. Ellis by chance at a local mall on January 3, 2015. He smirked at her but they did not speak. The next morning she awoke to find that her Mercedes had been keyed. L.N. was certain that Mr. Ellis had done it because he knew where her parents lived and the car had been parked in their driveway. L.N. reported the damage to the police the next day. In the course of reporting the damage, she told the police about working for Mr. Ellis as a prostitute.

14In February 2015, Mr. Ellis contacted L.N. and told her he would pay for the damage if she asked the police to drop the charges against him.

15After terminating her relationship with Mr. Ellis, L.N. continued to work in the sex trade for a few select clients until November 2015.

16Mr. Ellis’ defence was that he was unaware that L.N. was a prostitute. He was attracted to her and they had a relationship that lasted several months. He was completely taken aback when he was charged with the prostitution-related offences. He denied ever working as a pimp. He said that, at the relevant time, he had two part-time jobs and lived a modest lifestyle.

Factual Issues

17The Crown and defence differ on two aspects of the factual background in this matter. The first area of conflict relates to the amount of money that L.N. received from Mr. Ellis for her work as a prostitute. The Crown’s position is that this was not an equal business partnership. The Crown submits that the evidence supports that the only money L.N. received was the $5,000 she used to buy the Mercedes, $600 that Mr. Ellis gave her to pay a phone bill and money he spent on her when they went shopping together, which was less than $1,000. Given that L.N. testified that she took in $30,000 to $40,000 during the time she was with Mr. Ellis, this would mean that Mr. Ellis retained the bulk of her earnings for himself.

18The defence position is that L.N. made enquiries and educated herself before she got into the business with Mr. Ellis. It would make no sense for her to have quit her two part-time jobs if she was not getting money from Mr. Ellis. Further, L.N. was not homeless, uneducated or a minor. She was making enough money to take on the cost of the Mercedes payments. Finally, L.N. did not hesitate to express her opinion to Mr. Ellis and she initiated their break up. If she was unhappy with their partnership she would have left much sooner.

19Given Mr. Ellis’ evidence that he had no knowledge of L.N.’s activities as a prostitute was rejected by the jury, L.N.’s evidence should be accepted where there are any factual conflicts. As Mr. Ellis denied any knowledge of L.N.’s activities as a prostitute, the only evidence regarding how much money L.N. earned and how much of this money she, rather than Mr. Ellis, retained, came from L.N.

20Further, while L.N. may have been young and naïve about the sex trade, I agree with the defence that she could hold her own against Mr. Ellis. When she decided the relationship was over, she dropped him off at night in a mall parking lot and left him there. When he opposed her leaving the nightclub early so she could visit her parents, L.N. began yelling at him. She was a quick study at learning the sex trade from Mr. Ellis and then carrying on without him for a year after the relationship ended.

21As well, there was no evidence that Mr. Ellis was living a particularly lavish lifestyle. Apart from what may have been an expensive gold chain and some new clothes, he was not the one who bought a new car. He lived in modest rental accommodation and sometimes on his brother’s couch. He continued to work at Luxy’s nightclub and as a lighting technician. There was no evidence that he had any significant assets.

22Therefore, while I accept that Mr. Ellis kept a large portion of what L.N. earned, I find that L.N. had access to more than just the $5,000 for the Mercedes and the money he paid for her phone bill and shopping. I agree that she would not have quit her jobs and moved away from her parents’ home if she was completely dissatisfied with the financial arrangement she had with Mr. Ellis.

23The second area of factual dispute relates to L.N.’s fear of Mr. Ellis. The Crown’s position is that L.N. became fearful of Mr. Ellis over time. This fear intensified after the keying incident when L.N. began to fear not only for herself but for her family. That fear prompted her to go to the police.

24The defence submits that L.N. was not fearful of Mr. Ellis. While he may have been dominating towards her at times, she was not submissive and had no difficulty expressing her opinion about the relationship. Further, she did not go to the police immediately upon ending the relationship with Mr. Ellis. Rather, the entire prostitution issue did not even come up until the report of the keying incident.

25I do not find that L.N. was particularly fearful of Mr. Ellis during their relationship. I accept that after a few months in the sex trade, L.N. became depressed and wanted out. This was entirely her decision as evidenced by her actions on the way back from London. She told Mr. Ellis their relationship was over and dropped him off in a parking lot. I find that she did not stay in the prostitute/pimp relationship she had with Mr. Ellis against her will or because she was afraid of him.

26I agree that the keying incident was a different matter. I accept that L.N. was surprised by this and fearful for herself and family as this action on Mr. Ellis’ part was unexpected and from L.N.’s reaction, somewhat out of keeping with Mr. Ellis’ behaviour. I accept she was fearful for that reason.

27As for the nightclub confrontation, I agree with the defence. This appeared to be an isolated incident in which Mr. Ellis grabbed L.N.’s arm because he did not like the way she was acting. She confronted him and did not back down. There was no evidence of any other violence in their relationship. I do not find that L.N.’s actions in the nightclub were the result of her fear of Mr. Ellis. Quite the opposite. She had decided to leave and was angry with him when he did not want her to. Again, this is a demonstration of her independence and willfulness as opposed to any fear she may have had of Mr. Ellis.

The Appropriate Sentence

The Position of the Crown and Defence

28The Crown and defence are relatively far apart in their positions on sentence in this case. The Crown seeks a sentence of 30 months concurrent for counts one and three and a six month concurrent sentence on the assault count. In the event that the sentence imposed is less than two years, the Crown seeks a three year probation term with a no contact provision. The Crown also seeks a DNA order as the offences under ss. 212(1)(a) and 212(1)(h) are primary designated offences, a no contact order with the victim while Mr. Ellis is in custody and a s. 109 weapons prohibition.

29The defence seeks a reformatory sentence of nine to twelve months. The defence submits that Mr. Ellis should receive credit for his time on bail and that his sentence should accordingly be reduced to the three to six month range. At three months, he could serve the sentence intermittently and retain his job.

Aggravating and Mitigating Factors

30Mr. Ellis is 29 years old and a Canadian citizen. He was raised by his father in Peel Region. He is employed in the film industry working with a union for film, television and new media technicians. His work relates to the laying of cabling required for lighting on film sets.

31Mr. Ellis filed a number of supporting letters at the sentencing hearing. Most were from friends who described Mr. Ellis as dependable, supportive and hard working. His friend’s mother, Tammy Blakney, who has been like a mother to Mr. Ellis, described him as kind, hard-working and dependable. His current girlfriend, Ms. Liu, whom he has been with for a year and a half, described Mr. Ellis as supportive, respectful and reliable. Ms. Liu attended the sentencing hearing. I note that, other than Ms. Liu, it is not clear to me that those who wrote letters in support of Mr. Ellis are aware of the types of convictions for which Mr. Ellis is being sentenced other than his surety Ms. Comfort.

32In terms of mitigating factors, Mr. Ellis is gainfully employed and has been throughout. He had no prior criminal record at the time of the offences. I accept the defence submission that this was not a typical procurement case. L.N. was not a minor nor was she homeless. She was living with her parents and working when she met Mr. Ellis. While certainly lured by the lavish lifestyle promised by Mr. Ellis, the decisions to enter into the sex trade and then to end the relationship with Mr. Ellis were entirely her own.

33I also find that L.N. did not live in complete fear of Mr. Ellis. She did not hesitate to voice her opinion. She stood up to Mr. Ellis at the nightclub on the night of the assault. She did not run to the police to report that Mr. Ellis had been her pimp but reported him only after he keyed her car. The fact that he had been her pimp came up in the course of that report; it was not the reason for the report.

34In terms of aggravating factors, while it is true that while Mr. Ellis had no prior criminal record, he now has one. While on bail for this matter, he was found at a restaurant without his surety. He then gave police a false name. He pleaded guilty to one count of breach of recognizance and one count of obstructing police. He served a ten day sentence.

35While I have not found as a fact that Mr. Ellis kept as much money from L.N.’s work as the Crown suggests, there is no doubt that he kept the bulk of it. There are elements of deception and greed in these crimes that cannot be ignored. Mr. Ellis took advantage of L.N. He lured her away from her family and her jobs with false promises of a lavish lifestyle and lots of cash. He made promises he did not keep. He groomed her for a life of prostitution from which he benefitted. He insisted she conform to the unwritten rules of the sex trade world in which she was his “girl.”

36The effect of this arrangement on L.N. cannot be understated. She was ashamed to the point where she never introduced Mr. Ellis to her parents. None of her family or friends knew about her work as a prostitute or anything about the trial of this matter which, took place in December 2016. She did not submit a Victim Impact Statement because she wants to put all of this behind her. She did not appear at the sentencing hearing. She must live every day with the shame and embarrassment that comes with the fact that she was taken advantage of emotionally, physically and financially by Mr. Ellis, and that he fostered her trust to the point where he could lure her into working in the sex trade.

37During their four-month relationship it was L.N. who was subjected to the risks of having sex with unknown partners. That risk was highlighted at trial when L.N. described an incident in which a client became aggressive and it took almost half an hour for Mr. Ellis to get around to picking her up at the hotel after she phoned him. She was frightened and upset. Mr. Ellis benefitted financially from L.N.’s work but took virtually no risks.

38L.N. is fortunate that she had the strength of character to terminate the relationship at the point where she recognized she was becoming depressed and that her future was looking bleak.

39There is also the issue of Mr. Ellis keying L.N.’s car. It is clear that he called her after the police became involved. L.N. said he wanted her to recant with respect to all charges but Mr. Ellis said he offered to pay for the damage and asked her to recant her statement with respect to the keying damage only. Whatever the content of that conversation was, it is clear that Mr. Ellis was taking some responsibility for the keying. That is concerning with respect to the fear and intimidation experienced by L.N. after their encounter in the mall.

Applicable Principles of Sentencing

40Denunciation and deterrence are the key principles of sentencing to be applied in this case. Procuring women for the purpose of living off their work as prostitutes is something that society strongly denounces. That is, taking advantage of (usually) younger women and putting them at risk for personal financial gain is reprehensible conduct and a strong message must be sent to those who engage in such behaviour.

41To support its position with respect to counts one and three, the Crown relies on several cases in which the sentences imposed ranged from 27 to 36 months.

42The Crown relies on R. v. Brown (citing R. v. Foster)² in which the Alberta Court of Appeal set out the types of circumstances that would support the range of sentence the Crown says is appropriate for both procuring and living off the avails of prostitution. At the high end of the range, warranting sentences of four to five years, are situations in which the offender has coerced the victim into becoming or remaining a prostitute and exercised a significant degree of control over the victim’s activities. A mid-range sentence (two to three years) should be imposed where coercion is lacking but the offender relies on the victim’s earnings as his main source of income. Finally, at the low end of 12 to 18 months are situations in which the offender receives money from the victim but the relationship is not an exploitive one.³

43The Crown also relies on R. v. McPherson⁴ and R. v. Krisco.⁵ In McPherson, the offender was convicted of procuring a person to become a prostitute and controlling her movements with a view to aiding or compelling her to engage in prostitution. He was sentenced to 36 months concurrent on each count. In Krisco, in which the offender pled guilty to procuring a person to become a prostitute and living off the avails of prostitution, the sentence was increased from two years less a day to three years concurrent on a Crown appeal. In both cases, the offender exhibited significant control over the victim and received the majority if not all of the income from the victim’s work as a prostitute.

44In R. v. Badio,⁶ the Court of Appeal for Ontario approved concurrent two year sentences for convictions for procuring a person to become a prostitute and exercising control, direction or influence over the movements of a person in such a manner as to show aiding, abetting, or compelling her to engage in prostitution. In that case, the 15 year old victim worked as a prostitute for the offender for three days. There was no violence, and the victim’s earnings were divided between them. The Court indicated that the two year sentence took into account that the offender has spent three months in pre-trial custody.

45The defence submits that Brown and Badio cannot be compared to the case at bar. The victims in both of those cases were under 18. Parliament has made it clear by the introduction of s. 286.3(2) to the Criminal Code in 2014 that society will not tolerate the procurement of young persons for prostitution. A mandatory minimum sentence of five years of imprisonment would now apply to situations such as those in Brown and Badio.

46The defence submits that the Crown’s case of McPherson is more recent and helpful. However, the defence points out that in that case the victim was only 19 and the sex work continued for 18 months. The offender gave the victim a quota and rules.

47The dynamics in the case at bar were very different, according to the defence. L.N. was 22 years old when she was procured by Mr. Ellis. There is no evidence that she had a quota or specific rules.

48The defence relied on R. v. Ascenzi,⁷ where the offender pled guilty to two counts of procuring, as well as one count of uttering threats and one count of failing to comply with a recognizance and received a suspended sentence. In that case, the offender lured two young women, aged 18 and 20, into working for him as prostitutes. One victim worked for him for two months and the other for 11 days. Both turned all of their money over to the offender. The Victim Impact Statements demonstrated that the circumstances of the offence had a serious impact on the young victims. There was also evidence that the offender had a demeaning attitude towards the women.

49It should be noted that in Ascenzi, the court gave two years of credit for the time during which the offender had been on a strict bail with electronic monitoring and the 233 days the offender had spent in pre-trial custody. The court found that it was not necessary for the offender to return to jail as he had already experienced a serious restriction of his liberty.

50The Crown submits that the facts in Ascenzi are not as serious as the case at bar as the victims worked as dancers in a strip club and did “extras.” The victims were not sent to hotels with strangers. The Crown submits that, in any event, taking into account the credit given for the strict bail and nearly two years of pre-trial custody in that case, the sentence imposed was the equivalent of a sentence within the normal two to three year range.

51In R. v. Lukacko,⁸ the offender ran escort agencies for two separate two year periods. He was charged with multiple counts of living off the avails of prostitution and exercising direction for the purpose of aiding prostitution. He pled guilty with respect to one count relating to the first two year period. He was found guilty on other counts and was sentenced to two years less a day of imprisonment. While the offender conceded that he knew that some of the escorts were having sex with their clients, he did not use violence or intimidation and the court found that the escorts joined the agency of their own free will. On appeal the sentence was reduced to 12 months.

52The defence submits that Lukacko supports its request for a six to nine month sentence. Mr. Ellis did not run a large scale operation with multiple victims over a number of years. The Crown does not agree and submits that the offender in Lukacko was not engaged in pimping behaviour and, in any event, since Canada (Attorney General) v. Bedford,⁹ the actions of this offender are no longer illegal.

53The defence submits that Mr. Ellis’ bail should be considered a mitigating factor in the reduction of any sentence imposed. Mr. Ellis’ original bail conditions, imposed in January 2015, required house arrest. He was not permitted to leave his surety’s residence except for court, a medical emergency, travelling to work and school or if he was in the presence of his surety. His bail was varied in November 2015, to allow him to leave his residence (without his surety) except during the period of 12:00 a.m. to 6:00 a.m.

54The defence characterizes this as a strict bail of two and a half years that should garner Mr. Ellis a six month credit on sentence. The defence relies on R. v. Campbell,¹⁰ a recent Superior Court case in which the offender received a sentence of 21 months after conviction for exercising control to compel prostitution, in addition to two years, consecutive, for possession of a prohibited firearm. In that case, the offender exploited a 16 year old prostitute (who had led the offender to believe that she was 20) over three days and maintained complete control over her movements. Mr. Campbell was also credited with 887 days, including three months of enhanced credit jail conditions (lock downs and denial of visits) while he was in pre-sentence custody and three months of credit for compliance with his house arrest bail, which required him to remain at home in the company of his surety unless at work, court or meeting with counsel.

Analysis and Ruling

55In consideration of the relevant principles of sentencing, the aggravating and mitigating factors and Mr. Ellis’ personal circumstances, I find that a sentence of 20 months imprisonment is appropriate for the following reasons:

(a) Although this was not a completely equal business partnership, L.N. did receive some money for her work.

(b) L.N. was not the subject of threats or violence other than when Mr. Ellis grabbed her arm at the nightclub.

(c) L.N. was lured into the business by Mr. Ellis by false promises. However, after four months, L.N. realized this was not the life she had been promised. She terminated the relationship of her own accord. Mr. Ellis did not completely control L.N.

(d) Mr. Ellis profited from L.N. by requiring her to give him a portion of her earnings.

(e) Mr. Ellis put L.N. in a position of risk and danger to satisfy his own greed.

(f) L.N. is ashamed of her involvement with Mr. Ellis and has still not informed her family or her friends of any of the details.

(g) L.N. was young but not a minor. As of the amendments to the Criminal Code in 2014, Parliament has clearly drawn a line between the denunciation required where the victim is under 18 (a five year minimum sentence) and where the victim is an adult.

(h) The length of the period of prostitution was in the mid-range. It was not as short as the three day period in Campbell nor as long as the 18 month period in McPherson.

(i) Mr. Ellis did not have a criminal record at the time of the offences.

(j) A 20 month sentence is just beyond the high end of the third category in Foster. That is, Mr. Ellis did receive money from L.N. and although the relationship was somewhat exploitive, it was not to the same degree as in McPherson where the offender demanded quotas of $1,000 per night, dictated the sexual acts to be performed and dominated the victim for 18 months.

(k) I reject the defence position on sentence. It does not adequately address the principles of denunciation and deterrence. The Crown position on sentence is, in my view, somewhat lengthy given that the facts are not as egregious as the cases relied upon by the Crown.

56I decline to give Mr. Ellis any sentencing credit for his house arrest bail for two reasons. First, he breached his bail by being out without his surety and then giving police a false name. This fact cannot be ignored when determining any potential credit. Second, Mr. Ellis’ bail was not as strict as, for example, the bail in Ascenzi, where the offender was on a strict bail with electronic monitoring. The strictest terms of Mr. Ellis’ bail lasted only ten months after which the bail terms were less restrictive. I do not view Mr. Ellis’ bail as one which should attract credit for sentencing purposes.

57Therefore, Mr. Ellis will be sentenced to 20 months of incarceration on count one. As indicated above, count two is stayed based on R. v. Kienapple.¹¹

58The defence submits that count three should also be stayed because it relates to the same wrong as counts one and two. The Crown disagrees and submits that count three entails a different factual foundation. I agree with the Crown. Once Mr. Ellis lured L.N. into the sex trade, he then photographed her, marketed her, drove her to and from her dates, told her what rates to charge and requested that she travel to Calgary and London and become an exotic dancer in order to earn more income. I agree that this is indicia of a control over L.N.’s movements separate from the lying and build-up of trust which Mr. Ellis used to lure her into becoming a prostitute. As such, Mr. Ellis will serve a sentence of 20 months concurrent on count three as well.

59The circumstances of the assault demonstrate that it was on the low end of the scale. It should attract a sentence of no more than two months concurrent with the other counts. Therefore, Mr. Ellis is sentenced to two months concurrent on the assault.

60A DNA order shall issue, as well as a s. 109 weapons prohibition. Mr. Ellis shall have no contact with L.N. while in custody pursuant to s. 743.21 of the Criminal Code. On completion of his sentence, he shall serve a three year period of probation, which shall include conditions that he not contact L.N. or attend within 100 metres of her home, school, workplace or any other place he knows her to be, not possess any weapons, not access Backpage.com or any other escort website and not attend at any hotel during his probationary period.

Gilmore J.

Footnotes

1. 1R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras 15-18.
2. 2(1984), 1984 ABCA 204, 54 A.R. 372, 13 C.C.C. (3d) 435 (C.A.).
3. 3Ibid at paras 22-23.
4. 42013 ONSC 1635, [2013] O.J. No. 1254.
5. 51995 ABCA 83, 165 A.R. 76, [1995] A.J. No. 104 (C.A.).
6. 6[1995] O.J. No. 1886, 1995 CarswellOnt 3469 (C.A.).
7. 72016 ONCJ 433, [2016] O.J. No. 3778.
8. 8(2002), 2002 41577 (ON CA), 59 O.R. (3d) 58, 164 C.C.C. (3d) 550 (C.A.).
9. 92013 SCC 72, [2013] 3 S.C.R. 1101.
10. 102017 ONSC 26, [2017] O.J. No. 633.
11. 111974 14 (SCC), [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524.