CITATION: R. v. A.S., 2017 ONSC 802 COURT FILE NO.: CR-16-70000767-0000 DATE: 20170201

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

— and —

A.S.

Counsel: Emma Haydon, for the Crown Katie Scott, for the Defendant

HEARD: December 5 and 15, 2016, at Toronto, Ontario

AMENDED REASONS FOR SENTENCE Michael G. Quigley J.

Overview

[1] On November 9, 2016, I convicted A.S. of a number of human trafficking and related offences arising out of his procurement of J.D.S. as a prostitute and having committed the offence of human trafficking between January 1, 2008 and July 12, 2014. He was convicted of one count of sexual assault, one count of benefitting from trafficking in persons, one count of procuring to become a prostitute, one count of procuring to carry on prostitution, one count of trafficking in persons for material benefit, one count of aggravated assault, one count of assault with a weapon, namely, a piece of broken glass, three counts of assault, and one count of choking. My reasons for judgment outline the entirety of the evidence and my findings. They are reported at 2016 ONSC 6965.

[2] The issue on this sentencing hearing is what is the fit sentence on these offences for this thirty-six-year-old multiple repeat offender, having regard to all of the circumstances.

Circumstances of the offences

[3] The complainant J.D.S. had a troubled youth and committed numerous youth offences. She received her first adult sentence for assault of her mother in 2007. J.D.S met A.S. in January 2008 after she was released from serving that first adult sentence in Penetanguishene. She came from Sault Ste. Marie but felt she could not go back, so instead she came to Toronto. She had been given A.S.’s phone number by her cellmate and testified that when she found herself alone on Eglinton Avenue in the dark of a late January night in 2008, she called A.S. and he came and picked her up.

[4] He took her to a hotel that night. Partying and sexual relations followed. In the following days he groomed her to be dependent on him and told her if she wanted to be with him, she had to give him all her money. This ultimately led to her being taken by him to work at strip clubs as a dancer, and then later to her providing so called “escort services”, that is sexual services for money. If she did not make enough money to meet his monetary demands, he would hit her and berate her. Their relationship continued in this way during the period from 2008 until 2010.

[5] Between 2011 and 2012, they went their separate ways. He was in custody on other matters during much of this time. J.D.S. became involved with another man in Hamilton. They had a baby together. However, he was murdered and thereafter, with her alcohol abuse issues, her baby was taken into care by the Children’s Aid Society. The child was relocated to a care facility in Toronto.

[6] On one of her visits to Toronto to see her baby in the spring of 2012, she ran into a friend of A.S.’s on College Street, and through him, got back into contact with A.S. He was out on bail. J.D.S. was desperate to get her child back. So after meeting the friend, when A.S. called, they talked. He promised to help her get her child back and she fell back in with him. They made a deal. He would stop hitting her and help her get her daughter back. In return, she would work as an escort for A.S. and hand over all her money to him, as she had done before.

[7] In June of 2012, A.S. and J.D.S. got an apartment at L[…]. Although he had another girlfriend and shared an apartment on Eglinton Avenue with that woman, mostly unbeknownst to J.D.S., he did move a significant amount of his clothing into the apartment on L[…]. From this location, J.D.S. did both “out-calls”, where she would go out to the customers, and “in-calls”, where she would provide sexual services to customers at the apartment. As spring moved into summer, his abusive beatings of her continued. Their altercations became more frequent. On one occasion, he threatened to kick her teeth out and then burned her arm with a marijuana cigarette. On another occasion he choked her to the point she thought she would pass out.

[8] The violence came to an ugly head on July 12, 2014. A.S. came home to the apartment at L[…] at about noon. She had been working the night before and drinking. She had fallen into a very sound sleep. He could not get into the apartment. He came back later and J.D.S. let him in. He demanded her money, and was angry that she had not answered her phone when he had called trying to get into the apartment. A.S. grabbed a glass jar on the dresser and struck her at the base of her leg that was lying over the end of the mattress in the bedroom, as she lay face down on their bed. That slash with a piece of broken glass severed her Achilles tendon and cut the flesh of her foot to the bone.

[9] J.D.S. begged A.S. to drive her to the hospital, but he refused. Instead, he carried her out to the back of the apartment building and left her bleeding on a curb between the garbage dumpster for the building and the recycling bin. He went to get his car, but he did not care for her or take her to the hospital. Instead he drove off. She crawled to the sidewalk on her hands and knees, screaming for help. She thought she was going to die. Shortly after, police arrived in response to a neighbour’s 911 call, and she was taken to hospital and cared for. He never made any inquiry after her and never checked at the hospitals to see that her injuries had been cared for. He simply disappeared. It turned out that he had quickly fled the Toronto area and moved to Vancouver, where he was arrested two years later.

[10] I made the following findings at trial:

(i) I rejected the evidence of A.S. as neither being believable, nor leaving me with a reasonable doubt. I accepted the evidence of J.D.S. and the other corroborating evidence that supported her testimony. As such, I found that virtually all of the charges against A.S. were made out simply on the strength of the evidence of J.D.S;

(ii) Looking at the beginning of their relationship, I found that A.S. sexually assaulted J.D.S. at least once, in January of 2008;

(iii) Turning to the last day of their relationship, July 12, 2014, I found that the grievous wound sustained by J.D.S. to her ankle and foot was intentionally inflicted by A.S. with a piece of broken glass;

(iv) I found on the whole of the evidence that A.S. assaulted J.D.S. on several distinct occasions, that he choked her on one occasion to the point where she could not breathe, that he inflicted the burns on her arm, and that he forcibly confined her. As such, I convicted A.S. of one charge of sexual assault and the charges of assault, choking, aggravated assault and assault with a weapon;

(v) On the principal charges of human trafficking and procurement, I found that A.S. exercised control over J.D.S. I reached this finding having regard to the manner in which their relationship started and the manner in which A.S. made J.D.S. dependent on him. This conduct was part of a grooming process undertaken by A.S to further his purpose of taking control over J.D.S. for his own exploitative use and economic benefit;

(vi) I found that A.S. intentionally and directly took steps to cause J.D.S. to become dependent upon him to enable him to take control over her so that he could direct her actions for his economic benefit and satisfaction;

(vii) I found that A.S. exercised his control by directing J.D.S to work at the clubs and massage parlours, by buying her skimpy clothing to wear to work at those locations, and by physically taking her to those locations and telling her to get a job. I was satisfied beyond a reasonable doubt on the whole of the evidence that this is how A.S. controlled the movements and actions of J.D.S. He controlled it later by keeping her working out of the apartment in return for the hope that he would help her get her child back. The testimony of J.D.S. relative to physical and verbal abuse confirmed the control of A.S. over her, particularly her evidence that she had to make a certain minimum amount of money, and that failure to meet his monetary objective every day put her at the risk of physical violence and verbal abuse;

(viii) I found that A.S. rented the hotel rooms and told J.D.S. when she could come and go. He would abandon her from time to time but he was nevertheless exercising control over her movements and actions. His ability to deny her a safe place, to cause her fear by not coming to pick her up, and by not calling her back, was just part of the manner in which he exercised control over her movements. The other part involved violence, abusive conduct, demanding that she provide him with her earnings, and that she follow his directions;

(ix) I found that A.S. took J.D.S. to both reside and to work in a number of different locations and businesses in the province and later in Vancouver, as an escort in the sex trade for his benefit and economic enhancement. She was the physical asset that generated the money that he needed. There was physical violence if the correct amount of money was not provided to him. The threat of physical violence was also a form of psychological control that he exercised over her. Interspersed with the violence and abandonment, A.S. was telling J.D.S. that there was a future for the two of them together, the potential for houses, cars and a family. This amounted to the exercise of psychological control. As such, I found that A.S. exercised control over the movements of J.D.S. for the purposes of exploitation and procurement. I convicted him of all of the procurement and human trafficking charges.

Circumstances of the Offender

[11] A pre-sentence report was prepared in advance of this sentencing and was filed as an exhibit. A.S. is presently thirty-five-years-old, grew up in the greater Toronto area, and is a Canadian citizen. He is the eldest child in his family, and has a younger brother and sister, who are married and have children. Mr. A.S. has had little contact with his father over his life, but his mother was present during part of these proceedings and he continues to have contact with her. Mr. A.S. was born when his mother was only fourteen years of age, which created difficulties in his upbringing. His grandmother raised him, but it appears to have had rough features in his upbringing, and there was a failure to provide him with adult supervision and support. He left high school at fifteen years of age and began his criminal record at that time.

[12] A.S.’s very extensive and varied criminal record commences with offences in 1997 when he was fifteen or sixteen years of age. The better part of his life, some nineteen years, has been engaged entirely in criminal activity and in being in custody for the offences he has committed. Clearly A.S. has made many bad life decisions, but despite that, his mother has remained a part of his life. She is a personal support worker and has done missionary work. A.S. has obtained some education, even though he has spent a considerable amount of his life in custody. He has been involved in the Polaris program during custodial periods and has twenty-four credits to his name, so from an employment perspective, he only has to complete grade 12 mathematics in order to achieve his high school diploma.

[13] He has had a multiplicity of jobs, particularly working in the landscaping industry as an apprentice. He has two children by another mother, K.C., two boys ages seven and thirteen. He is divorced from their mother, K.C. She is a human resources manager and they maintain phone contact together.

[14] On this sentencing hearing, three letters of support were submitted by A.S.’s mother, his grandmother, and his now separated wife, K.C. Despite the horrendous criminality of A.S.’s life, each of these individuals is strongly supportive of him. However, there is an underlying tone to each of the letters that seems entirely incredulous that the person his family believe is the caring, kind person they believe him to be, could be involved in offences of the type for which he has been convicted here, much less the panoply of offences for which he has been convicted earlier in his life. His grandmother goes so far as to speculate that these are false accusations because her grandson A.S. is not the type of person who could ever commit such crimes. She describes him as being a strong family-oriented individual who was simply in the wrong place at the wrong time, and is not that type of person. His ex-wife indicates that the absence of their father in their lives has traumatized his two boys greatly. They have not seen him for two-and-a-half years. His ex-wife expresses understanding that sentencing for his convictions in this case may carry a lengthy time in custody, but she implores the Court to grant whatever leniency is possible, if only to permit her two sons to have the presence of a father in their lives.

[15] However, the pre-sentence report presents a different picture of the offender. It shows that he is not accepting responsibility for his conduct and that he displays no real remorse. There is a kind of apology that is present in his words to the probation officer, at least as reflected in the pre-sentence report, but it appears to be less an expression of remorse for the crimes he has committed than for the circumstances he now personally finds himself in.

[16] The author of the pre-sentence report states that his interviews with the offender’s mother, grandmother and K.C. demonstrated that A.S. has pulled the wool over their eyes for a long time. They unfailingly provide support to him, but they have no real conception or consideration or acceptance for what he has done. Comments at page 8 of the pre-sentence report suggested that they refuse to see what is actually in front of them, and are blind to the reality of this person. The sad irony is that A.S. has had the strong support of these three individuals who trust and believe in him, but that in spite of that support that could have provided him with the foundation to turn away from a life of criminality, he has not done so, and has instead been convicted of committing these very horrific and serious offences.

[17] Perhaps A.S. has finally come to have a better understanding of his circumstances during the past lengthy period of pre-sentence custody leading up to today, because he does appear to have started to make some steps towards rehabilitation and turning himself around. He is anxious to complete his high school diploma, something that is to his credit, and if he were able to do so, that would be an achievement in which he could take pride. Nevertheless, on the face of this pre-sentence report, there is no real expression of remorse by this offender and there is an absence of other mitigating factors which suggests any reasonable long-term prospects of rehabilitation.

[18] While there may be some hope in the offender’s response to questions that he was confronted with by the probation officer in the course of preparing the pre-sentence report, the answers provided based on the offender’s history to date provide no meaningful foundation to conclude that he will change the direction of his life, though hope springs eternal. The last two paragraphs of the probation officer’s assessment, as set out in the pre-sentence report, bear reading in full:

The writer did confront the subject as to how many more years he would like to further his conflict with the criminal justice system, and he firmly stated “no more”. The subject spoke of his age, and having had enough of incarceration. He spoke of his regret as to the outcome of the relationship with the victim, and also his desire to be actively involved with his kids. The subject’s mother noted to the writer that it was her hope that the subject’s current appearance before the Court serves as the last “reality check” for the subject to put an end to his recidivism.

The subject in the writer’s opinion has graduated and into being a career criminal over the past decade. Although the subject does have some goals towards lifestyle improvement once he is released from custody, he may in all likelihood return to drug trafficking as a ready source of income in light of the fact that he would not want to appear unwilling to financially support the needs of his children.…The subject did at least affirm that he has no interest in harming the victim in the future.

Victim Impact Statements

[19] There were two victim impact statements read into the record in the course of the sentencing proceeding. The first was the victim impact statement of the complainant, J.D.S., and the second was a community impact statement provided to the Court by the Native Women’s Resource Centre. Both should be included in these reasons for sentence in their entirety, but I will quote from the community impact statement first, and then return to the victim’s impact statement, given its positive flavor notwithstanding the harm that was done to her.

[20] The Native Women’s Resource Centre advises the Court that the community impact of this offence transcends the structure of the form of the victim impact statement that is requested. It describes the offences as circumstances that have perpetuated spiritual, emotional and physical violence, the effects of which cannot be disseminated into the categorical divisions suggested by the victim impact statement form. The statement continues:

While the offence is presented at court in its singularity, the violence perpetrated did not impact one indigenous woman, and grappling with the community impact of this offence is difficult both because of its enormity and the frequency with which it is experienced within our community.

Up rootedness – caused by colonialism, and with the effect of community and identity breakdown – is a huge precipitating factor in indigenous women’s vulnerability to experiencing violence, particularly sexual violence and sexual, emotional, and physical exploitation. Indigenous women’s identities remain strong because of their and the community’s resilience; but we cannot overstate the ongoing and consistent threat of violence to body and being we face within this patriarchal, misogynistic, colonial environment. This is well documented in fact – you will be familiar with the words most commonly attached to our community in the media: murdered and missing.

Spaces in which the community can safely meet and connect through identity are especially important; the Native Women’s Resource Centre is the space for so many women in our community. Accessing the space and participating in the community it fosters is challenged by the ongoing threat of violence that the nature of this offence engendered. While the violence perpetrated by [A.S.] was directed at the complainant, the impact of her resultant trauma is felt by the entire community.

The nature of the various offences for which [A.S.] is found guilty have dominance, control, and coercion of a woman at the core. But to treat one woman as a commodity, as property to abuse in this way is to abuse the community from which she is a part. The assault of a woman is an assault to her children, to her mother, to her siblings, and to the land, which nourishes her.

The violence of exploitation and assault and the resulting trauma has the ability to isolate the survivor, threatening the survivor’s capacity for inclusion in community. It is through community and our relationships that we will come and fulfill the roles of mother, daughter, auntie, friend, partner, sister, cousin. It was within community that we find identity; this is where we come to be known, this is where we come to heal.

[21] The victim impact statement read by J.D.S., the complainant in this case, was moving in its simplicity and it also deserves to be recorded in full:

First, I want to forgive you for what you did to me and this is for my self-care. I am hopeful you acknowledge what you did is extremely unacceptable and dangerous. Second you need to know I am someone’s daughter, granddaughter, mother, niece, sister, cousin… I’m not going to get into all the things you did to me because you would know exactly what you do to women because I spent the last two years telling the world and court so that it doesn’t happen to other young women… I want you to know that women are human beings and know that women gave you life. I want you to get the help you need while you are in prison and heal from whoever hurt you so deeply in your life that you have very little regard for human life. One thing I can say is the journey I was on with you has given me the amazing new journey that I’m on raising awareness for violence against women. I have grown and discovered so much on my spiritual healing journey and I pray that you see the light that the Creator has for you.

Legal Parameters:

Positions of the Crown and the Defence:

[22] The sentencing regime for human trafficking offences is different now than it was at the time of these offences. Section 279.01 of the Code now stipulates a minimum sentence of five years for persons over eighteen convicted of trafficking in persons where accompanied by an aggravated assault, and four years in any other case. However, this framework was not in place until December 2014, after these offences occurred, and so is not applicable here.

[23] However, even before this mandatory minimum regime was enacted, a conviction for human trafficking accompanied by an aggravated assault carried the possibility of a sentence of life imprisonment. The offence of procuring a person to engage in prostitution carried a maximum sentence of ten years. Against this legislative framework, the present existence of a regime of mandatory minimum sentences may assist to inform an appropriate sentence, but here the Crown is plain that she is seeking a much higher sentence. Having regard to what Crown counsel claims are exceptionally aggravating facts present here, she is seeking a global sentence of twelve years’ imprisonment.

[24] The breakdown of the sentences sought is as follows: (i) Human trafficking (s. 279.01) – ten years; (ii) Material benefit from human trafficking (s. 279.02) – five years concurrent; (iii) Aggravated assault – six years concurrent; (iv) Assault with weapon – conditional stay under R. v. Keinapple[^1]; (v) Sexual assault in 2008 – two-and-a-half years concurrent; (vi) Three separate assaults – one year each for a total of three years concurrent; (vii) Procuring prostitution – eight years concurrent; (viii) Exercising control for the purposes of prostitution – eight years concurrent; and (ix) Choking – two years consecutive; for a total of twelve years’ imprisonment.

[25] By way of ancillary orders, the Crown seeks an order that the offender produce a sample of his DNA on the basis of the human trafficking being a primary designated offence and being mandatory relative to the aggravated assault, a section 109 order for life, and a twenty-year SOIRA registration order relative to the sexual assaults, on the basis that the offender is over eighteen years of age and has been convicted of human trafficking that carries a maximum sentence in excess of ten years.

[26] The offender is also entitled, however, to pre-sentence custody credit. He went into custody on April 27, 2015 so that meant he had spent nineteen months and one week in custody to December 5, 2016, the first day of the sentencing hearing. To today’s date, that credit increases by a further eight weeks and two days to total approximately twenty-one-and-a-third months. At one-and-a-half to one credit, the offender is thus entitled to a total of thirty-two months of credit to be applied against his sentence as time served.

[27] Defence counsel makes submissions in support of a global sentence of six-and-a-half to seven years, less credit for pre-sentence custody, but she provides no breakdown of the components of that submission relative to the particular crimes for which Mr. A.S. has been convicted.

[28] Rather, the principal reasons defence counsel argues for a much shorter sentence than that advocated by the Crown is her insistence that at most, having regard to periods she argues A.S. was in custody on other offences, the maximum duration of this predatory relationship could not have exceeded eight months, as opposed to the Crown’s claim that the duration of the relationship was four years. Secondly, defence counsel regards A.S.’s criminal record largely as being very dated, with the claim that crimes of violence took place in the period from 2001-2005, which is now more than fourteen years ago. Instead, it is argued that the earlier, obvious violent activity should be overlooked as dated and instead, that the offender’s record should be recast as one consisting principally of his extensive, more recent drug dealing crimes. Finally, she contends that even if very large amounts of money were involved in R. v. Miller[^2], there was an entire ring of prostitutes involved, all adults, unlike here where only one woman was trafficked and procured into prostitution.

[29] Defence counsel provides no particular response to the case law support advanced by the Crown, apart from referencing the decisions of this court in R. v. Byron[^3], R. v. R.R.S.[^4], and the twenty-year-old decision of Hill J. in Miller, the last two of which were also referenced in the Crown’s brief of authorities. In her submission, those cases were more serious but had lower ranges of six-and-a-half to seven years’ imprisonment.

Principles of Sentencing

[30] Section 718 of the Criminal Code states the fundamental purposes of sentencing and lists its underlying objectives. The fundamental purpose of any sentence is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by the imposition of just and appropriate sanctions. Among the specific objectives listed in section 718 of the Criminal Code, there are several that are relevant here. They are to denounce unlawful conduct, to deter the offender and others from committing offences and to separate offenders from society where necessary. They also include rehabilitation and reparation for the harm caused to not only the victims, but also the community. Importantly, a sentence must also promote the acknowledgement by offenders of their responsibility for their actions and the harm those actions have caused to others. In a case such as this, general deterrence to others is paramount, but having regard to the violent and dehumanizing nature of the offences present in this case, and cases like it, specific deterrence of this offender must occupy a prominent place in deciding what sentence to impose.

[31] Further rules are contained in 718.1 and 718.2. The former establishes the principle that a sentence must be proportionate to the gravity of the offence and the extent to which the offender is responsible for it. The latter stipulates that a sentence must be increased or decreased after taking account of any aggravating or mitigating circumstances relating to the offence or the offender. It also requires parity, that is, that a sentence imposed on this particular offender should be similar to sentences imposed on similar offenders in similar circumstances.

Mitigating and Aggravating Factors

[32] In sentencing an accused for the offence of living off the avails of prostitution, at paragraph 38 of R. v. Miller, Hill J. of this court, references the decision in R. v. Tang[^5] where the Alberta Court of Appeal established a list of factors that a sentencing judge should consider in a case, relative to the presence of aggravating factors specific to the nature of the offence and its elements, in addition to a consideration of other more usual aggravating or mitigating factors.

[33] The factors set out in Tang relate to the old legislation, but insofar as there are important structural and factual similarities between the offences as once described and as presently laid out in the Code, many of the aggravating factors raised there are important to consider and are present in this case. Moreover, the cases referenced below all reference the Tang decision and take account of these same factors in determining the severity of the aggravating factors that are present and the range of sentence that such aggravating factors call for. Looked at in the context of the factors in this case, a Tang focused review of the facts in this case causes me to reach the following findings relating to aggravating factors relative to the principal offences:

(i) Tang invites the sentencing judge to looking to the degree of coercion or control imposed by the pimp on the prostitutes’ activities. It was obvious in this case that there was significant control. This offender A.S. drove J.D.S. out to her various jobs and he supervised her. This control was significant. He controlled what city she would be in and where she would work in those locations.

(ii) It is important to evaluate the seriousness of the offence, which Tang shows can be measured in part by the amount of money received by the pimp and the extent to which the pimp allowed the prostitutes to retain their earnings. In this case, A.S. took all of J.D.S’s money, whatever amount it might have been. He also imposed an earnings target on her forcing her to try and earn at least $1,000 a day. She worked many nights for him trying to comply with this demand, and if she did not meet the target, physical or verbal abuse would follow.

(iii) J.D.S. was between nineteen and twenty-two years of age when these offences occurred. She was not under nineteen years of age, so that is not an exceptionally aggravating factor, but she clearly remained a youthful person, hardly an official adult.

(iv) The decision in Tang calls upon the trial judge to consider any special vulnerability on the part of the prostitutes. Here, there was obviously special vulnerability as the Native Women’s Resource Centre community impact statement makes so clear. J.D.S. was and is indigenous, she was isolated, she had no family and friends in the Toronto area, and all she had was A.S. who controlled and abused her for his economic benefit.

(v) The working conditions in which J.D.S. had to earn her income in order to provide it to A.S. were poor and hardly in the finest of locations: strip clubs, motels, hotels, and in the back of cars, and in the apartment at L[…] Boulevard. These are circumstances that might be considered to be dangerous and would not afford J.D.S. the degree of protection that she should have been entitled to.

(vi) The sixth factor under Tang calls upon the court to look at the degree of planning of the prostitution operation. Plainly here, the degree of planning was not significant at the outset. It was not sophisticated at first, but A.S. knew where to take J.D.S. in order to groom her, and then as time passed, he later forced her to move on into more significant provisions of escort services, and even later, the planning became more further refined with the rental of the L[…]. apartment as a set location to which customers could come to have their sexual needs serviced by J.D.S.

(vii) There was no evidence here of the size of A.S.’s prostitution operation including the number of customers that J.D.S. was expected to service, but it appears at least on the evidence before this Court that she was the only prostitute fully-engaged in providing sexual services for his economic benefit, but equally plainly she would have serviced a significant number of clients over a relatively long period of time.

(viii) The duration of the prostitution control is difficult to assess here, having started in 2008 and continued through 2009 into 2010, having then been suspended, and then having picked up and continued again in 2012. While it is a total period of four years, it is interrupted by a time when A.S was in custody and when J.D.S. was living in Hamilton with another man. It is nevertheless significant in duration, and must necessarily, to my mind, take the appropriate sanction for A.S. in these circumstances to a higher level.

(ix) The ninth factor reflected in Tang inquires into the degree of violence that was present, apart from that inherent in the pimp’s parasitic activities alone. This also takes us to a higher range of sentence in this case because of the violent aggravated assault committed against J.D.S., plus the three other assaults for which he has been convicted. This element alone elevates the seriousness of the offences materially and cries out for a significant punitive sentence. There is no other case, as my review below will indicate, that reflects such significant injury to the complainant as was visited upon J.D.S. in this case. That violence starts out with a sexual assault within the first week of her knowing A.S., then there were ongoing common assaults committed and physical abuse, psychological abuse, and violence to get her to continue to carry on working for him, then the violence escalated just before the end with the choking incident, and then there was the final event, the aggravated assault, where A.S. half-severs the complainant’s foot, and severs her Achilles tendon with the glass shard.

(x) The tenth factor in Tang calls upon me to consider what inducements were provided to J.D.S to continue to do A.S.’s bidding, but that is a bigger issue here because her evidence was plain that it was not the inducement of drugs or alcohol that were of importance, but rather that in between his volatile conduct against her, J.D.S. testified that he would be attentive to her and appear to be caring for her, and indeed he suggested to her that they might well have a future together. So it was that psychological underpinning of the possibility of something better in the future that serves as the principal inducement in this case to the continuance of J.D.S.’s willingness to carry on under the control of A.S.

(xi) This factor calls upon the Court to consider the effect on the complainant of the pimp’s expectations of her. As I have already indicated, she has spoken to that impact in her victim impact statement. Nevertheless, while she has been able to support herself well enough to pull herself together and has decided to move on in a positive direction, the impact of several of these offences is certainly horrific. Yet something positive has come out of it since J.D.S. has been able to change the direction of her life and assist others who were in the same state she was in to escape that life of hopelessness.

(xii) The final factor referenced in Tang is the extent to which the pimp demands or compels sexual favours for himself from the prostitute. Here there is only one instance: the sexual assault perpetrated against J.D.S. at the beginning of her relationship when in the hotel shortly after she arrives from Penetanguishene is certainly a sexual favour that A.S. demanded of her and calls for punishment.

[34] If these factors were not aggravating enough on their own, there is a further aggravating factor present in this case that has compelling importance. A.S. has a simply atrocious criminal record. It takes thirteen pages to print out the accumulated offences that he committed between 1997 to the present. I acknowledge that it is not a continuous list and that a number of those thirteen pages only record one particular offence or occurrence. I also acknowledge that a number of the more violent crimes took place earlier in the offender’s career of criminality. Nevertheless, his offences evidence a panoply of criminality, including theft under $5,000, numerous failures to comply with court orders, possession of property obtained by crime, numerous robberies, escaping lawful custody, failing to attend court, numerous assaults, fraudulently obtaining transportation, mischief, obstructing peace officers, possession of counterfeit marks, flight from police, dangerous operation of a motor vehicle, and failing to comply with the terms of his probation, apart from the evident preponderance of offences that are drug-related, involving possession of prohibited narcotics, possession for the purposes of trafficking, and trafficking in those illicit drugs. Further, contrary to the position of defence counsel, there were other more recent occurrences of violence involving A.S. and his other girlfriend, Chanti, and the gap in years between the timing of those earlier violent offences and the commencement of this violent relationship was only a matter of several years. So even taking account of its duration and timespan, I regard this is a record of criminal conduct that is seriously aggravating, apart from the aggravating factors associated with the predicate offences.

Analysis

[35] It is obvious that principles of denunciation and deterrence, rehabilitation and protection of the public are the principal factors under section 718 of the Code which are engaged on this sentencing hearing. But it is also necessary in a case like this, which involves offences of human trafficking and procuring for prostitution for the benefit of the offender to look at the case law that deals with those particular offences.

[36] As the following review will show, a sentence of ten years for human trafficking is plainly at the high-end, two years higher than the most significant sentence that has been imposed in the few cases that deal with this area and that have been decided in recent years. However, Crown counsel takes the position that the sentence of ten years for the human trafficking and procuring offences, together with the sexual assault and assault offences captured underneath that umbrella, is a fit sentence based on principles of totality.

[37] Looking at the enactment of mandatory minimums for the human trafficking offences, it seems plain that Parliament’s intent in enacting two different floors of mandatory minimum in s. 279.01 shows that there was intent that offences such as the aggravated assault be grouped together and sentenced globally together with the human trafficking offence itself. This seems sensible because the presence of violence is part of the exploitation that is at the core of the human trafficking offences, and therefore what might otherwise be sentenced as a separate aggravated assault ought to be included in the sentence under the umbrella of and as part of the overall offence of human exploitation and human trafficking. This is the reason that Crown counsel’s submissions include all offences except the choking offence under the umbrella of the requested ten-year sentence for human trafficking.

[38] The choking offence, however, is an entirely different offence and the case law shows it is to be treated differently. Based on the decision in R. v. Lemmon[^6], the offence of choking is a further offence. At paragraph 29 of Lemmon, in support of its conclusion that choking should be sentenced consecutive to other predicate offences, the Alberta Court of Appeal stated as follows:

In short, although this crime is typically employed as a means to achieve another, it is often the more serious and life-threatening. Accordingly, it would be wrong to treat the offence of choking, suffocation or strangulation, where the victim has been rendered unconscious, as merely a particular or detail of the underlying offence. To do so would fail to hold the offender responsible for what is often the more serious offence, and in the process marginalizes extremely dangerous conduct. I do not mean to suggest that every act of applied force to a victim’s throat will warrant a significant additional sentence. However, such a sentence is appropriate when the victim is rendered unconscious or suffers bodily harm.

[39] I concur with this line of analysis, and given the severity of the choking that was experienced by J.D.S. In the Crown’s submission, the human trafficking offence should serve as an umbrella to all of the other offences on which the accused has been found guilty in this matter, and with sentences for those underlying offences to be served concurrently with the principal sentence for the human trafficking offence. I will return to address this proposed structure of sentence later in these reasons, but it will suffice for present purposes to indicate that I am persuaded that it is appropriate for the choking offence to be sentenced separately and consecutively to the human trafficking offences.

[40] Turning to the relevant and comparable cases, apart from Miller which was decided twenty years ago in a very different environment of applicable offences, and apart from Canada’s adoption of international human trafficking legislation since then relating to the principal offence of trafficking in persons, there are essentially five in number: R. v. Bennett[^7], decided over twelve years ago, as well as R. v. Miller, R. v. Mfizi[^8], R. v. McFarlane[^9], and R. v. R. R. S.[^10] These are the decisions that provide guidance from prior similar cases relating to the determination of the appropriate sentence for A.S. in this case.

[41] In addition, however, I feel obliged in these particular circumstances to emphasize the 2011 decision in R. v, Tourville[^11] where Code J., in classifying three separate categories of sentence for aggravated assaults, observes that:

At the high end of the range are cases where four to six years’ imprisonment have been imposed, these cases generally involve recidivists, with serious prior criminal records , or they involve “unprovoked” or “premeditated” assaults with no suggestion of any elements of consent or self defence. (Case references omitted)

[42] Plainly, the aggravated assault of slashing J.D.S.’s ankle, severing her Achilles tendon, and severely slicing her foot causing her serious and permanent injury, and potentially fatal loss of blood as A.S. left her bleeding on the walkway outside L[…] Boulevard, was an unprovoked and, on the evidence, at least possibly a premeditated attack by the offender. It was an assault committed by a recidivist offender with a very serious prior criminal record and totally unprovoked by circumstances requiring self-defence. Thus, on those facts alone, it is patent that this offender could and likely would otherwise be sentenced to four to six years of imprisonment for that offence alone. As such, in my view, this seriously aggravating factor requires special consideration in the context of the Crown’s submission that the aggravated assault should simply be brought under the umbrella of the human trafficking and procurement offences because of the sentencing structure relative to mandatory minimum sentences as now described in the Code.

[43] I find this to be at an entirely different level of gravamen that requires careful consideration to ensure that the aggregate sentence imposed does not lose sight of this exceptionally serious component of the offender’s criminal activity in this case. The fit sentence in this case must not only reflect the violent and dehumanizing conditions and control of the human trafficking and procurement offences, but also separately recognize the egregious level of seriousness of this additional crime, even if committed within the ambit of the predicate offences.

[44] Returning to the above-noted cases, however, in R.v.Bennett, the Ontario Court of Appeal reduced a sentence for prostitution-related offences involving three female complainants under the age of eighteen, from eight years’ imprisonment to six–and-a-half years. Important to the court’s decision, however, was that the offender’s misconduct with the first complainant was short-lived and the violence used, though serious, left her without physical injury. Further, in relation to a second complainant, the Court observed that she was a prostitute before she met the offender and that according to her own testimony, he treated her well throughout their relationship and there was no suggestion that he was ever violent towards her. Third, while the offender in that case had a criminal record, the Court considered it to be dated and involving unrelated crimes. Significantly, prior to the predicate offences, the offender in that case had only served one custodial sentence of sixty days’ imprisonment for fraud over $5,000 some years before. As such, the Appeal court felt it was appropriate to reduce the global sentence imposed from eight years to six-and-a-half years. Reduced by pretrial custody, that resulted in an adjustment of the sentence to one of four-and-a-half years.

[45] R. v. McFarlane was a different kind of case. There, the offender kidnapped two women who he was dating. Both of the women were dancers at strip clubs. During the events that occurred over mere hours, not months or years, the offender chased one of the women with a gun, threw her to the pavement and put the gun in her face. The offender put a gun to the other woman and told her she had to work for him as a prostitute or he would shoot her or “do her”. Both of the women were ultimately able to get away from the offender. Police attempted to stop the offender, but he drove off very quickly and escaped. He was arrested the next day.

[46] In that case, Crown counsel sought seven years for the offence in relation to one of the complainants, and a seven-year consecutive sentence in relation to the second, together with five years concurrent for human trafficking and three years consecutive for dangerous driving. That would have yielded a total sentence of seventeen years, but Crown counsel appropriately conceded would have been excessive, and that based upon the totality principal, a sentence of twelve years would be appropriate. Defence counsel in that case argued that the total sentence should be five to seven years with all sentences being concurrent.

[47] Having reviewed all of the cases, Durno J. of this court concluded in the circumstances that:

…The appropriate sentence for kidnapping and human trafficking offences is neither as high as the Crown seeks nor as low as the defence. On these facts, I am not persuaded that a double-digit sentence is appropriate. (My emphasis)

[48] The aggravating facts in the context of all the circumstances, including totality, resulted in a sentence of eight years being imposed for those offences. Durno J. sentenced the offender separately for the dangerous driving offences that were present in that case. Importantly, however, relative to this case, was that this was a single occurrence that took place over a short period of time albeit that it was horrific for the individuals involved, involving the use of guns and threats of gun violence. However, it was not a crime that involved a continued period of dehumanizing control such as was present in the circumstances of the present case.

[49] In Mfizi, the offender convinced a seventeen-year-old to become a prostitute and made arrangements for her to provide sexual services to others. He controlled her and lived off of her prostitution earnings, at least in part. He also assaulted her, at times with a weapon. As in the other cases, in that case Thorburn J. reviewed the aggravated considerations that arise under the factors set out in Tang, but in that case as in this case, the events occurred before the imposition of the mandatory minimum sentencing regime for the offence of living wholly or partly on the avails of prostitution with a person under the age of eighteen, threatening, attempting to use, or using violence, intimidation or coercion.

[50] Thorburn J. noted (i) that the offender’s crimes were serious, (ii) that he engaged in procuring a minor to become a prostitute; and (iii) living in part on the avails of prostitution, using violence and intimidation. That count alone carried a mandatory minimum sentence of five years and a maximum sentence of fourteen years. In addition, however, there were seven other charges in that case. Taking account of all these factors, the applicable legal principles of sentencing, the number of prior convictions and the numerous aggravating factors and relatively few mitigating factors, Thorburn J. concluded that the appropriate global sentence was one of eight years.

[51] The most recent decision of this court on offences such as these is that of Aitken J. in R. v. R.R.S. In that case the offender instructed a nineteen-year-old woman as to the types of prostitution activities that she would engage in, and he ultimately took all of her earnings. He controlled her with violence, with threats of violence, with manipulation and through financial means. Importantly in that case, however, unlike this case, the victim had not been induced into prostitution through the offender, but had previously engaged in prostitution activities. I have found that that was not the case here and that I was not persuaded that J.D.S. had been engaged in prostitution activity before she encountered A.S. Similar to this case, however, the victim was vulnerable. As compared to the twelve years sought in this case, in that case the Crown sought a global sentence of six years for human trafficking, receipt of material benefits from trafficking and withholding documents to facilitate trafficking, together with a s. 266 assault, uttering a death threat, and a breach of an undertaking by the offender.

[52] The offender in that case had a lengthy criminal record and Aitken J. noted that many of the offences on his criminal record related to assault and other offences against women, and that the offences for which she was sentencing the offender were a continuation of a prior pattern. She noted that no prior sentence appeared to have had any effect on deviating the offender from his commitment to a continuing life of criminality. He took advantage of young women who were vulnerable and for whom he lacked any respect.

[53] As in this case, Aitken J. in that case reviewed all of the factors enumerated under R. v. Tang, together with most of the decisions that were referred to me in the course of argument on this sentencing hearing, expressed her underlying concern that there was no factor that she had seen that demonstrated that the offender would not continue to be a danger to women once released, and would not continue to operate in an environment outside of the law. As such, she concluded that the protection of society played a significant role in sentencing the offender in that case for these crimes. In the result, the offender was sentenced to five years for human trafficking under s. 279.01(1)(b), three years concurrent for receipt of material benefits from trafficking under section 279.02 (1), and six months for withholding documents to facilitate trafficking under section 279.03. In addition, a concurrent sentence of one year was imposed for the assault, six months for uttering a death threat, and six months for breach of an undertaking.

[54] In considering the fit sentence to impose in this case, I have tried to have careful regard for each of these earlier decisions, and to compare the severity of the circumstances present in those cases with those that are present here. I went so far as to prepare a matrix table comparing each of the relevant factors in each of those other cases as compared to the circumstances that are present in this case. At the end of that analysis, I have reached the conclusion that while at least comparable in some respects to the decision in Mfizi, this case appears to stand on its own as a high watermark in the context of human trafficking offences involving the control of individuals for the economic benefit of the offender, and procurement of prostitution for the economic benefit of the offender.

[55] What distinguishes this case so materially from those earlier cases is the extent of the manipulation, the physical, intellectual and psychological control exhibited over the complainant, and most importantly, the willingness of the offender to resort to psychological terrorism and violence, dressed up in a package of actually caring for the person being controlled, combined with the ultimate exceptionally egregious acts of violence involved in nearly choking the complainant to the point where she could not breathe, and most importantly, committing a vicious and grievous aggravated assault against the victim, resulting in significant permanent injury and impairment, and which could well have led to the death of the victim.

[56] I have found that these factors elevate this case to an entirely new and different level. The prior high watermark for human trafficking offences on this case law appears to be a global sentence of eight years of imprisonment. In this case, the Crown plainly acknowledges that she seeks a significantly higher sentence of twelve years consisting of two principal components. Those components are a global sentence of ten years for the human trafficking offences, with all of the underlying prostitution procurement offences to be sentenced and served concurrently thereunder, plus a further two years of imprisonment for the separate and distinct choking offence, which the case law shows should be a sentence required to be served consecutively, rather than concurrently. This explains how the Crown arrives at her global proposed sentence of twelve years of imprisonment.

[57] Relative to trafficking and procurement, I find that it would be appropriate for those offences on their own to receive sentences of eight years concurrent in totality. But the problem that I have had since the sentencing hearing took place, is that the global sentence sought by the Crown fails, in my view, to give adequate recognition to the extreme egregious and gratuitous violence that was present in the circumstances of this case, where a very grievous aggravated assault was inflicted upon the complainant, an offence that in and of itself would have commanded a sentence of five to six years of imprisonment on its own.

[58] As such, while I acknowledge that Crown counsel seeks to increase the existing upper limit for human trafficking offences from eight years to tenyears, and seeks only two further years for the aggravating factor of the egregious aggravated assault that threatened the life of this complainant, and ignoring the separate two-year sentence that I intend to impose for the choking conviction, in my view that position fails to take account of the horror of the offences committed here, the serial criminality of this offender, the permanent impairment and damage caused by the vicious attack he perpetrated on the complainant in slashing her Achilles tendon and virtually cutting through half of her foot, and then carrying her down the side staircase of the apartment building to leave her beside a garbage dumpster bleeding profusely while he drove off and disappeared.

[59] If that was not enough, it is important that he never had the courage to even make inquiry into whether she had been attended to, whether she received hospital care, and whether she had survived the attack that he inflicted upon her. The reason is simple. He frankly did not care. He demonstrated his absence of care by disappearing, promptly moving to British Columbia, and only being apprehended for these offences some two years later.

[60] In my view these are exceptionally aggravating facts and circumstances that require recognition in the sentencing process.

[61] In my view, the proposed six-and-a-half to seven-year sentence proposed by defence counsel would be demonstrably unfit in the circumstances of this case. Further, I find that the proposed ten-year sentence for the human trafficking offences, including under that umbrella presumably only an additional two years on top of the eight-year benchmark established in Mfisi to compensate for the aggravated assault that is present here, fails to give recognition to the principles that remain plain in R. v. Tourville, relative to appropriate levels of sentence for the three potential levels of aggravated assault.

[62] In my view, the aggravated assault committed by this offender against this complainant, on a standalone basis, would command a sentence of five to six years of imprisonment. Human trafficking offences in this case, with the underlying procurement offences caught under the umbrella of the human trafficking offences on their own command a sentence of eight years of imprisonment. So the question is whether it is adequate to simply increase the level of sentence from eight years to ten years with only two years of that global sentence relative to the human trafficking offences and the violence perpetrated under that umbrella being imposed for such a violent and egregious aggravated assault? In my view, that is not an acceptable sentence in the circumstances of this case.

[63] I have concluded that the fit sentence for this offender for the human trafficking and prostitution procurement offences that were present here, including all of the violence and sexual assaults that were perpetrated under that umbrella, including in particular appropriate recognition for the life-threatening assault that was perpetrated against this complainant on its own, would call for a global sentence of twelve years of imprisonment. In addition, as a separate sentence to be served consecutively, a sentence of two years would be appropriate for the choking offence, on the authority of R. v. Lemmon. As such, notwithstanding the submissions of both Crown counsel and defence counsel, I have determined that a different sentence will be imposed. In my view, the circumstances here call for the imposition of a global fourteen-year sentence, but based on principles of totality, I have determined that total should be reduced by one year to thirteen years. I have recognized that reduction by reducing the consecutive sentence for choking from two years to one year. The ancillary orders will all go as requested.

[64] A.S., you will please stand up.

[65] On the offence of human trafficking under section 279.01, you are sentenced to twelve years of imprisonment. You are sentenced to serve five years concurrent to count one on the charge of receiving a material benefit from the commission of the section 279.01 offence, six years concurrent on the charge of aggravated assault, two-and-a-half years concurrent for the sexual assault perpetrated against the complainant in 2008, one year for each of the three simple assaults perpetrated against her, eight years concurrent on the charge of procuring her to prostitution, eight years concurrent on the exercise of control over her for the purposes of prostitution, and one year consecutive for the offence of choking, for a total of thirteen years of imprisonment. The conviction for assault with a weapon will be stayed under R. v. Keinapple as the Crown requests.

[66] That sentence in aggregate is reduced by the credit to which you are entitled for pre-sentence custody totaling thirty-two months. In the result, I sentence you A.S. to serve a remaining sentence after pre-sentence custody credit of ten years and four months in a federal penitentiary.

Michael G. Quigley J.

Released: February 1, 2017

CITATION: R. v. A.S., 2017 ONSC 802 COURT FILE NO.: CR-16-70000767-0000 DATE: 20170201

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

— and —

A.S.

AMENDED REASONS FOR SENTENCE Michael G. Quigley J.

Released: February 1, 2017

[^1]: 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729 [^2]: [1997] O.J. No. 3911 (Gen. Div.) [^3]: 2014 ONSC 990, [2014] O.J. No. 723 (S.C.J.). [^4]: 2016 ONSC 2939, [2016] O.J. No. 2411 (S.C.J.). [^5]: 1997 ABCA 174, [1997] A.J. No. 460 (C.A.). [^6]: 2012 ABCA 103, [2012] A.J. No. 326 (C.A.) [^7]: 2004 CanLII 36124 (ON CA), [2004] O.J. No. 1146 (C.A.). [^8]: [2008] O.J. No. 2430 (S.C.J.) [^9]: [2012] O.J. No. 6566 (S.C.J.) [^10]: 2016 ONSC 2939, [2016] O.J. No. 2411 (S.C.J.) [^11]: 2011 ONSC 1677, [2011] O.J. No. 1245 (S.C.J.), at para. 30.