Court File and Parties

COURT FILE NO.: CR-17-50000615-0000 DATE: 20180712 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – SHONDELL LUCAS-JOHNSON Accused

Counsel: Corie Langdon, for the Attorney General Royland Moriah, for the Accused

HEARD: July 6, 2018

B.A. ALLEN J.

PUBLICATION RESTRICTIONS NOTICE

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code. By order of this court, any information that could identify the complainants shall not be published in any document, broadcast or transmission.

REASONS FOR DECISION ON SENTENCE

BACKGROUND FACTS

[1] By decision dated June 22, 2018 I convicted Mr. Lucas-Johnson on two counts of procuring the sexual services of a person 18 years of age in violation of s. 286.3(1) of the Criminal Code.

[2] The details of the relationship between an accused convicted of sex trade-related offences are critical to determining both the guilt of an accused and the appropriate sentence to impose.

[3] The complainant ML was 18 years old when she met Mr. Lucas-Johnson in Nova Scotia in April 2015. Before she went to Nova Scotia ML resided with her family in a small town outside Toronto. ML obtained a position in Halifax as a nanny. She met a man in Halifax months before she met Mr. Lucas-Johnson who became her pimp as she worked in the sex trade as an exotic dancer and escort in the evening when she finished her nanny duties.

[4] ML subsequently struck up a relationship with Mr. Lucas-Johnson after becoming acquainted on social media. They went out on dates in Halifax for about a month during which time ML felt they had developed feelings for each other, a compatible relationship.

[5] ML’s nanny position was to end in May 2015. She planned to move back to stay with her family when she left Halifax. During their time together in Halifax, Mr. Lucas-Johnson told ML about a condo he had in Toronto. He said they could spend more time together hanging out at the condo when she returned to Toronto. ML liked that idea. At this time, Mr. Lucas-Johnson did not invite ML to reside with him at the condo. The plan was for her to live with her family.

[6] ML paid her own fare back to Toronto. Mr. Lucas-Johnson followed about a week later. About a week afterwards, he invited ML to spend a weekend with him at the condo. She packed a weekend worth of clothing and spent the weekend with Mr. Lucas-Johnson at the condo. It was ML’s evidence that they developed a closer romantic relationship during this time. ML returned home and gradually moved into the condo as her place of residence.

[7] ML testified she loved the lifestyle of living in a luxury condo. ML was aware that Mr. Lucas-Johnson earned a living at a landscaping job and by selling drugs. She did not have a job to support the lifestyle. Mr. Lucas-Johnson introduced ML to the idea of working as a sex trade worker offering sexual services to clients at the Sunshine Spa, a licensed establishment. He described how the Spa operated. Although ML had worked in the sex trade previously she had never heard of a spa where offering sexual services is legal. ML testified she was intrigued by the idea of working in a safer place for a better class of clients. ML made it clear it was her choice to work at the Spa. Mr. Lucas-Johnson did not force her.

[8] Mr. Lucas-Johnson took ML shopping for lingerie to work at the Spa and drove her there to meet the owner who told ML about the sexual services. ML thought it was “great” that she could start working that day. The shift was 7:00 p.m. to 4:00 a.m. She serviced seven to ten men that first shift earning $1,000.00.

[9] ML worked at the Spa for two months. She made on average about $400.00 a shift. At first she worked three shifts a week which increased to six shifts a week. It was ML who decided how many shifts she would work. She was motivated by the obligation to contribute to the lifestyle. Working at the Spa was how she could do this. ML kept her earnings and spent them as she pleased.

[10] ML had a key to the condo and could come and go as she pleased. She considered the condo to belong to both her and Mr. Lucas-Johnson. They were both paying the bills and maintaining their lifestyle. They had developed a romantic domestic relationship. ML considered Mr. Lucas-Johnson to be her boyfriend.

[11] Mr. Lucas-Johnson did not stop ML from being in touch with family and friends. He would drive her to spend weekends with her family. Sometimes she would take public transportation. She always had access to her cellphone to use as she pleased.

[12] However, ML said as her work hours increased she began to feel she was losing herself, her value in life. ML began to lose touch with her family and friends. She stopped contacting them because she did not want to answer questions. This was a self-imposed alienation from her social support network. Mr. Lucas-Johnson never attempted to isolate or confine her.

[13] Although he alluded to being violent with an unfaithful ex-girlfriend, Mr. Lucas-Johnson was never violent or threatening with ML. He never hit, pushed or slapped her. Mr. Lucas-Johnson started to ask her to leave her money on the dresser. She did not agree with that. This meant to her that he was her pimp and she did not want that. Their relationship began to deteriorate and arguments grew intense. However, it was ML who got violent. She threw her cellphone at him. She testified she was not afraid of Mr. Lucas-Johnson. She actually would threaten to call the police on him if he did not do what she wanted.

[14] During one argument it was Mr. Lucas-Johnson who went to spend the night with a friend. Mr. Lucas-Johnson wanted ML to move out of the condo because she had been unfaithful. He accused her of having too much contact with her previous pimp and of being in the sauna with another man. When ML threatened him with the police he relented. Eventually, ML did leave but she did not want to. She moved to a motel. In July ML called a friend who contacted her family. They came to Toronto to take her home. ML testified that she continued in the sex trade for a period after she left Mr. Lucas-Johnson, without a pimp or a spa.

[15] ML’s mother did not know that her daughter was a sex trade worker. When the mother called the police to speak to ML her mother was present so ML never told the police about Mr. Lucas-Johnson on that occasion. However, months later when ML saw a news release that Mr. Lucas-Johnson had been arrested for human trafficking a 17-year-old girl, she decided to call the police. She gave a videotaped statement to the police where she recounted in detail her experience with Mr. Lucas-Johnson.

VICTIM IMPACT STATEMENT

[16] ML’s mother prepared a victim impact statement that was read in court by a worker from Covenant House, a youth shelter in Toronto.

[17] The mother credibly offers a heart-felt, descriptive account of the effect of ML’s experience on ML and her family. She describes how ML’s character and personality changed drastically after she returned from Nova Scotia and her experience with Mr. Lucas-Johnson. She describes how a once happy and humorous young girl had become a lost, cold and angry soul. The mother states that ML displays overwhelming anxiety and sadness. She has isolated herself from family and friends often remaining in bed all day. The mother states that ML has become dishonest with her telling half-truths and lies and has herself become distrustful of others.

[18] ML gave birth to a baby girl sometime after she returned home. The mother stated that she fears for the emotional well-being of the child given ML’s emotional state. She bemoans the adverse effect ML’s experience is having on three generations of her family. In spite of the difficulties ML’s experience has brought the family, the mother continues to show unyielding love and support for her daughter.

[19] It appears from the mother’s statement, however, that ML has not told her the complete truth about her experience with Mr. Lucas-Johnson. The mother has the impression that Mr. Lucas-Johnson was violent, threatening and manipulative with her daughter.

[20] This is not the case according to ML’s evidence. ML appeared at trial as a rather intelligent and articulate young woman who was not afraid of Mr. Lucas-Johnson. It appears he might have been afraid of her. She actually manipulated him by threatening to call the police to get her way. She was violent with him. The mother has the impression that Mr. Lucas-Johnson forced her into the sex trade, that he exploited her for her sexual services. This is not in accord with ML’s own evidence.

[21] However, the mother’s misapprehension of the true nature of ML’s relationship and experience does not take away what she sees in her daughter since her return home. I believe her observations are real. I believe the change in her daughter is real. Although ML’s experience in the sex trade does not fit the classic exploitative profile of a sex trade worker’s relationship with a pimp, I accept ML’s evidence that she lost her way, lost her value in the end. This I think is what the mother is observing in her daughter.

SENTENCING PRINCIPLES

[22] Section 718 of the Criminal Code sets out the principles that underpin the objectives for sentencing: denunciation, deterrence and the separation of the offender from society.

[23] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other potential future offenders from committing offences; and (c) to separate offenders from society.

[24] Proportionality is also a guiding principle for sentencing. It requires a sentence to be proportionate to the gravity of the offence, to be determined on the particular facts of the case. The narrow focus of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: [Criminal Code, s. 718.1 and R. v. Hamilton (2004), 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (Ont. C.A.)].

[25] Parity is another governing principle. It requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is however an individualized process which necessarily means that sentences imposed for similar offences may not be identical: [R. v. Cox, 2011 ONCA 58 (Ont. C.A.) and R. v. L.M, [2008] 2 S.C.R. 163, 2008 SCC 31 (S.C.C.)].

[26] Courts have determined that denunciation and general and specific deterrence are the prevailing objectives with sex trade offences.

AGGRAVATING AND MITIGATING FACTORS

[27] Section 718.2(a) of the Criminal Code provides that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender”.

Aggravating Factors

[28] Mr. Lucas-Johnson took advantage of the fact that ML and he had an emotional relationship, that she did not have a job and that she was being lured in by the luxurious life style in the condo. It was under those conditions that he introduced the idea of working at the Spa and procured her sexual services.

[29] Mr. Lucas-Johnson has a criminal record for four convictions for offences committed in 2014, 2015 and 2017. The crimes are assaults, threatening bodily harm and failures to comply committed in the context of domestic disputes with women and breaches of court orders arising from those offences. While Mr. Lucas-Johnson was not violent with ML and his earlier convictions are not directly related to the procuring offences, the domestic offences like the procuring offences, involve mistreatment of women.

[30] Mr. Lucas-Johnson was on probation when he committed the offences before the court. It seems being on probation was not a deterrent to more crime involving women.

[31] Mr. Lucas-Johnson did not plead guilty. While this cannot be considered an aggravating factor, because offenders are entitled to maintain their innocence, he will not receive the benefit as a mitigating factor that a guilty plea would offer.

Mitigating Factors

[32] Mr. Lucas-Johnson appears to have close family connections. His mother and two brothers attended some days of the trial. They travelled all the way from Nova Scotia to support him. One of the brothers who attended is severely disabled from an acquired head injury. There must have been some determination on the part of the family to be at court for Mr. Lucas-Johnson because the mother had the added responsibility of travelling with the disabled son and attending to him during the trial.

[33] Mr. Lucas-Johnson is a young man. He was 23 years old when he committed the offences. He is currently 26 years old. He has three children, one born while he was in custody.

[34] Mr. Lucas-Johnson completed high school. Apparently, Mr. Lucas-Johnson had been accepted at St. Mary’s University in Nova Scotia but could not attend because he was arrested. He had previously taken a plumbing course and has worked at a number of jobs such as at landscaping and at a community centre. He indicates he wants to become a barber when he is released from custody.

[35] There are no drugs, alcohol or firearm issues.

THE SENTENCE

[36] Sex trade offences are regarded as serious offences as they are exploitative, often involve violence and taking advantage of another person’s vulnerability. The Supreme Court of Canada made the following observation when considering earlier legislation:

From a review of Canadian and foreign studies and the current literature pertaining to the problem of prostitution and pimps, it is obvious that s. 195(2) of the Criminal Code, in assisting in curbing the exploitive activity of pimps, is attempting to deal with a cruel and pervasive social evil.

[R. v. Downey, [1992] S.C.J. No. 48 (S.C.C.)]

Pre-trial Time

[37] Mr. Lucas-Johnson was arrested on September 20, 2016 in relation to the other complainant in the case and released on bail on October 12, 2016 which amounts to 24 days in custody. He was arrested and jailed in relation to ML on January 19, 2017 and remains in custody to the present.

[38] In total Mr. Lucas-Johnson has been in custody for 536 days including the 24 days. With 1.5 to 1 credit, pre-trial custody would be credited at 836 days or two years, three months and 106 days.

The Parties’ Positions

[39] The Crown seeks a three-year custodial sentence and three years’ probation with a condition, among others, to prohibit Mr. Lucas-Johnson from attending within 150 metres of where ML resides, works or attends school. Under s. 478.04(a) of the Criminal Code procuring is a primary designated offence where it is mandatory to order a DNA sample. The Crown seeks a ten-year firearm prohibition, a no contact order in relation to ML and CM (the other complainant in relation to whom Mr. Lucas-Johnson was acquitted) while he is incarcerated if I impose a custodial sentence beyond time served.

[40] The defence seeks a custodial sentence of from nine to 12 months and one-year probation. He does not disagree with the geographic restriction proposed by the Crown on the probation order. The defence takes the position that the firearm prohibition should be only five years.

CASE AUTHORITIES

[41] The range of sentences involving sex services-related offences is from 12 months to five years. The length of sentence very much depends on the factual context in which the offences were committed.

[42] The facts of the cases the Crown cites have fact patterns quite distinct from the facts before this court:

• R. v. Tang, 1997 ABCA 174, [1997] A.J. No. 460 (ABCA) - offender ran a sophisticated brothel business; solicited and provided seven or eight customers per night, up to six nights weekly with two girls aged 13 and 14 over a six-week period; victims were in foster care and a group home when he introduced them to prostitution; accused also had sex with the girls; sentence 60 months for living on the avails of prostitution.
• R. v. Miller, [1997] O.J. No. 3911 (Ont. Gen. Div.) – offender, a pimp, operated bawdy-house for one year; involved a number of adult prostitutes working for him; provided three residential apartments; collected 40% of the proceeds; assaulted one woman and threatened her; total sentence of 22 months imprisonment which included sentence for assault with weapon and keeping a bawdy house; six months concurrent for two counts living on the avails.
• R. v. MacPherson, 2013 ONSC 1635, [2013] O.J. No. 1254 (Ont. S.C.J.) - victim met offender at a nightclub when she was age 17; relationship initially platonic; she turned 19 years then offender set her up as exotic dancer at a club; they moved in together and began a sexual relationship; victim thought the offender was her boyfriend; she turned over all of her earnings to offender; offender instructed her to perform sexual services for club patrons with a $1,000.00 per night quota; arrangement continued for a year and a half; offender age 36 at the time of sentencing; global sentence of 36 months for two counts of prostitution-related offences.
• R. v. Wallace, [2009] A.J. No. 986 (ABCA) – offender, age 27 years, met 18-year-old victim on internet dating website; offender took victim from Alberta to Toronto; introduced her to prostitution; kept all the proceeds for himself; they then returned to Alberta where the offence continued; total sentence 60 months for sexual offences.
• R. v. Downey, [1992] S.C.J. No. 8 (S.C.C.) – appeal of conviction only; offender charged with his companion, the owner of an escort agency, with two counts of living off the avails of prostitution; clients would call the agency and an escort would go on a date with them; clients were charged introduction fee which the agency collected; escorts kept any money they received for sexual services; offender was aware of the sexual activity; offender worked at agency answered phone, made up receipts and did the banking. He had no other employment.
• R. v. Brown, [2007] O.J. No. 2985 (Ont. C.A.) – offender, age 31, carried on systematic and calculated exploitation of an unsophisticated and susceptible young woman; was on parole at the time for living on the avails of a 16-year-old victim: offender had significant and relevant criminal record; included prior convictions for living on the avails of prostitution as well as offences of violence and dishonesty; overall sentence eight years imprisonment.

[43] The defence cited the following case:

• R. v. Ellis, [2017] O.J. No. 3196 (Ont. S.C.J.) - victim age 22 years at the time; living with her family and employed; no previous experience with the sex trade; offender met victim at a party; soon started an intimate relationship; lured her into sex trade with money she could earn; offender groomed victim for sex trade; took photos of her wearing lingerie and arranged ad to be placed on escort website; showed her how to answer calls and messages from prospective clients and how to collect money and he told her what to charge; involved in sex trade with offender for three months; offender violent when victim wanted to leave sex trade; she stood up to him and left the relationship; she continued in the sex trade after she left him; global sentence 20 months.

CONCLUSION ON SENTENCE

[44] I find a 12-month sentence with two years’ probation to be a fit sentence. The custodial sentence is at the low end of the range of sentences for sex trade-related offences. In arriving at this sentence, I considered the aggravating and mitigating factors and the facts that distinguish the case at hand from the case authorities. I note the following facts that set this case apart from the case authorities presented:

• ML had been involved in the sex trade previously so Mr. Lucas-Johnson did not lure her into activity she was not familiar with; she said it was her choice to get involved and she was excited about the prospect.
• Mr. Lucas-Johnson did not run a sophisticated operation.
• He was not violent or threatening toward ML but she was violent toward him.
• ML was not afraid of Mr. Lucas-Johnson.
• He did not force her to stay in the relationship; he wanted her to leave.
• There was no exploitation in the relationship as ML was able to keep the proceeds and shared the living expenses with Mr. Lucas-Johnson.
• The sex trade relationship was of short duration, two months.
• ML could come and go as she pleased.
• I found the monetary benefit Mr. Lucas-Johnson received was not consideration from the sex trade because the relationship with ML met the exception of being a “legitimate living arrangement”.

[45] Those facts I find justify a custodial sentence at the lower end of the range. I find the custodial sentence with a probationary term is sufficient to meet the objectives of denunciation, general and specific deterrence, rehabilitation and separation of the offender from society, although with time served Mr. Lucas-Johnson will serve no further time.

[46] I find Mr. Lucas-Johnson should have to serve a probationary period of two years. He has a history of disregarding court orders in relation to his other convictions. He is a young man in need of some supervision by the criminal justice system. He would benefit from any rehabilitative program recommended by his probation officer.

[47] The Kienapple principle applies to the charges under s. 286.3 as count 12 (procure/recruit) and count 13 (procure/exercise control) arise from the same course of conduct. Count 13 shall be stayed.

[48] I order a DNA sample. I find a five-year firearm prohibition to be appropriate and a 150 metre restriction on Mr. Lucas-Johnson attending any residence, place of employment or school ML attends is reasonable.

SENTENCE

[49] I will now pronounce sentence. Shandell Lucas-Johnson, will you please stand?

1. You were convicted on count 12 and count 13 on the indictment. Count 13 is stayed. You are therefore sentenced on count 12.
2. I sentence you to a custodial sentence of 12-months with credit for 836 days’ pre-trial custody.
3. You will therefore not serve any further time in custody on the count before the court.
4. I sentence you to two years’ probation. The terms of the two-year probation are as follows: a) You will keep the peace and be of good behaviour. b) You will appear before the court when required to do so by the court and notify the court or the probation officer in advance of any change of name or address and promptly notify the court or your probation officer of any change of employment or occupation. c) You will report to a probation officer within two working days of your release and thereafter when required by the probation officer and in the manner directed by the probation officer. d) You will refrain from attending within 150 metres of ML or at any place known to be the residence or school or place of employment of ML. e) You will attend for and actively participate in, and to the satisfaction of your probation officer, any assessment, treatment or counselling as required by your probation officer, including for anger management, and you will sign whatever consents or releases that may be required by your probation officer in order to monitor and verify compliance with said assessment, treatment or counselling and you will provide written proof of completion of said assessment, treatment or counseling to your probation officer. f) You will not own, possess or carry any weapons defined by the Criminal Code. g) You shall have no contact of any sort with ML.
5. I make the following ancillary orders: a) I order a five-year firearm and weapon prohibition; and b) a DNA order.

B.A. ALLEN J. Released: July 12, 2018