Her Majesty the Queen v. Steevenson Joseph

DATE: 2018/08/14 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Steevenson Joseph

COUNSEL: Chantal Lefebvre for the Crown Ewan Lyttle for Steevenson Joseph

HEARD: June 4 and 5, 2018 at Ottawa

REASONS FOR SENTENCE

C.D.A. McKINNON, J.

[1] On February 17, 2018, at the conclusion of a three week trial by jury, Steevenson Joseph was convicted of receiving a benefit from the prostitution of a person under the age of eighteen years; procuring a person to offer to provide sexual services, believing that the person was eighteen years or older; knowingly advertising an offer to provide sexual services for consideration; and of making and possessing child pornography.

[2] He was acquitted of the more serious offences of procuring and harbouring C.A., knowing she was under the age of eighteen years; procuring and harbouring R.D. knowing that she was under the age of eighteen years; and of the sexual assault of M.M.

[3] Section 724 (2) (a) of the Criminal Code requires that I must accept as proven all facts, express or implied, that are essential to the jury’s verdicts of guilty.

[4] The jury found that Mr. Joseph had procured C.A. believing that she was over the age of eighteen years. With respect to the charge of receiving a financial or material benefit knowing it was obtained through the provision of sexual services of a person under eighteen, the jury had to believe that Mr. Joseph did not take reasonable steps to ascertain the age of R.D. Similarly, with respect to the convictions for making and possessing child pornography in the form of photographs, the jury had to believe that Mr. Joseph did not take reasonable steps to ascertain the age of R.D.

[5] These are the only rational inferences that can be drawn from the verdicts. The procuring of C.A., in circumstances where the jury found that Mr. Joseph believed that she was over eighteen, occurred prior to the making and possessing of the photographs. The jury had to believe that when the photos were taken, Mr. Joseph believed C.A. was over eighteen but had not taken reasonable steps to determine that R.D. was over eighteen.

[6] On the count of receiving a material benefit, the minimum penalty is two years in penitentiary. On the counts of making and possessing child pornography, the minimum penalty is six months in jail (since amended to provide for twelve months in jail).

[7] Defence counsel asserts that upon the facts in this case, the minimum penalties comprise cruel and unusual punishment and should be struck down as being unconstitutional.

[8] For the reasons that follow, I agree that the minimum penalties are unconstitutional and would comprise cruel and unusual punishment as they relate to Mr. Joseph.

Background to the Charges Against Mr. Joseph

[9] During June of 2015, twenty one different police services across Ontario joined in a coordinated investigation of province wide human trafficking. The investigation was called “Project Northern Spotlight.”

[10] The Ottawa Police Service was involved with the joint investigation. The evidence adduced at trial revealed that a special Human Trafficking Unit had been set up within the Ottawa Police Service to conduct investigations dealing with the human trafficking of young women. The Northern Spotlight operation was carried out over two days, June 17 and 18, 2015.

[11] The newspaper reports emanating from the Project stated that 90 officers and support staff across Ontario interviewed 122 people, including 110 women. Only two individuals, Steevenson Joseph, a Haitian born Canadian citizen residing in Ottawa, and Levi Alexander of Durham were charged. The reports stated that the police made no arrests outside the Ottawa and Durham regions where Mr. Joseph and Mr. Alexander were located “either because the sex trade workers said they were working willingly or because investigations are ongoing.”

[12] A June 25, 2015, edition of the Ottawa Citizen carried a prominent story titled “Human trafficking accused appears in court after provincewide probe.” Prominently displayed under the headline is a photograph of Levi Alexander. Immediately below the photograph, in bold print the following is stated:

“Steevenson Joseph, 21, appeared in an Ottawa courtroom Wednesday charged with 36 criminal offences related to human trafficking, sexual assault and child pornography.”

[13] Given the position of the text, the immediate conclusion one draws is that the photograph is that of Steevenson Joseph. When one looks at the photograph carefully, one can see small print underneath it which states,

“Police are looking for Levi Alexander, a suspect in a human-trafficking investigation that spanned 21 police agencies.”

[14] Mr. Joseph, who appeared very respectable in court, appears nothing like the person in the photograph, although the article implicitly suggests it to be a photo of him.

[15] Within the story, the following is stated:

“Police say they rescued six young women in the Ottawa and Durham areas who worked in the sex trade either as minors or against their will. Four of the young women – a 14-year-old and three 15-year-olds – were found in Ottawa.”

[16] A CBC story posted June 24, 2015, stated the following:

“ In Ottawa, four girls – three 15-year-olds and one 16-year-old – worked in the sex trade against their will, police said. They were rescued by police and a 21-year-old man was charged.

Steevenson Joseph faces a total of 36 charges related to human trafficking, sexual assault and child pornography.

Joseph remains in custody and he is scheduled to appear in court on July 3.”

[17] There is nothing in the evidence presented in this case to support the police statement, reported widely and now impossible to expunge, that four girls worked in the sex trade “against their will” and were “rescued” by police. This is a misstatement of the facts and has caused Mr. Joseph irreparable damage.

[18] As I stated on a number of occasions during the course of this trial and in the course of the sentencing, in my experience as a trial judge, I have dealt with numerous cases involving pimps and child pornographers. I have sent a number of them to penitentiary, including two child pornographers. In stark contrast to those cases, the facts of this case constitute the least serious conduct witnessed by me in the context of prostitution and child pornography cases.

[19] When we consider the words “human trafficking”, we normally think of young women being taken against their will, subjected to indignity, their every action controlled by manipulative pimps, and often subjected to the lure of drugs. Pimps prey upon these young women’s need for love, security or money. They use romance, blackmail or violence to coerce these young women into having sexual relations with johns. These pimps are dangerous criminals, deserving of the most serious sanctions.

[20] When we think of “child pornography”, we think of incredibly shocking images and videos depicting the gruesome sexual exploitation of children by older adults. Those who make, possess or traffic in child pornography are also deserving of the most serious sanctions.

[21] It is significant to note that Mr. Joseph was charged with human trafficking, namely recruiting, holding, concealing, or harbouring a person or exercising control, direction or influence over the movements of a person. Those charges were held to be unfounded by the preliminary inquiry judge.

The Facts

[22] The evidence at trial revealed that at the time of offences, Mr. Joseph was 21 years of age. He had graduated from La Cité Collégiale and was planning on going to the University of Ottawa in January 2016. He had been living with his younger brother, his step-mother and his father and had been in a two year relationship with a young woman. His step-mother and father were always arguing. One day he came home and learned that his step-mother and brother had moved out of the house. His father told him that he was moving to a one bedroom apartment, effectively leaving Mr. Joseph on his own.

[23] Just after the family broke up, his girlfriend also broke up with him, leaving him depressed and lonely. At this point in his life, he felt the only good thing that was happening to him was his relationship with his girlfriend. When she broke up with him, his self-esteem was very low and he spent a week or two hardly able to get out of bed. During this period, he committed the offences of possessing stolen goods and trafficking in marijuana.

[24] Mr. Joseph had a casual female friend who was involved in the sex trade. She informed him how she advertised her services on “backpage.com”, and that there was good money to be made.

[25] Mr. Joseph first saw C.A. at the Rideau Centre. He testified that he was attracted to full-bodied black women, and that he was attracted to C.A. because of her body, which was fully developed. C.A. appeared to be 20 or 21 to him. Mr. Joseph engaged C.A. in conversation and they exchanged phone numbers. After the meeting, they communicated for a few days. C.A. testified that after exchanging texts for a number of days, she received a message from Mr. Joseph asking if she was interested in making money. She was. They agreed to meet up and she went to Mr. Joseph’s apartment. She wore makeup to make her look older. She told Mr. Joseph she was 18 years of age and that she was attending college, when in fact she was in high school.

[26] When C.A. asked about how to make money, Mr. Joseph explained that the business was prostitution. The business was discussed. C.A. testified that during their first meeting, Mr. Joseph told her he did not want to force her and invited her to think about it and that it was her choice entirely. She left his apartment believing that she would not get involved in the business of prostitution.

[27] A few days later, C.A. and Mr. Joseph met and had sex. After that meeting, Mr. Joseph received a text from C.A. saying she was “down to it” and that she wished to engage in prostitution. He asked if she was sure, and she said she was.

[28] C.A. stated that Mr. Joseph put no pressure on her whatsoever, telling her she could do what she wanted and that she herself decided to engage in prostitution.

[29] C.A. also testified that in her opinion, Mr. Joseph was involving himself in this activity for the first time.

[30] R.D. refused to attend in Ottawa for trial, perhaps fearing arrest because of outstanding warrants. I permitted her evidence to be presented to the jury through her videotaped interview with the police and an audiotaped copy of her evidence given at the preliminary inquiry.

[31] R.D. was C.A.’s best friend and together they discussed getting into the business. R.D. was anxious to get involved. The two of them went to Mr. Joseph’s apartment where he was informed that R.D. wanted to work for him. Photos were taken of C.A. and R.D. by Mr. Joseph and posted on backpage.com. He cut and pasted an ad sent to him by his female friend who was in the escort business and advertised her services on backpage.com.

[32] It may be noted that C.A. and R.D.’s faces are not shown. Only their bodies are shown. The bodies appear to be of fully mature women. They are wearing bras and panties, and are posed in a sexual manner intended to attract clients.

[33] Response to the ad was quick, and for a week or so, C.A. and R.D. engaged in prostitution using Mr. Joseph’s apartment. Mr. Joseph would set the prices and communicate with the clients. C.A. denied that she communicated with clients but R.D. stated that C.A. would book clients using her own iPad.

[34] After a few days, C.A. and R.D. became frustrated because Mr. Joseph was keeping most of the money. Mr. Joseph insisted it was to buy ads, food, cigarettes and alcohol for the young women. C.A. agreed she was drunk most days. C.A. and R.D. kept some of the money and decided they would continue to engage in prostitution with another person they knew, who was a friend of R.D.

[35] While engaging in prostitution in Mr. Joseph’s apartment, C.A. agreed that she was not getting enough business and encouraged Mr. Joseph to buy more ads on backpage.com.

[36] M.M. was another girl attending the same school as C.A. and R.D. M.M. contacted Mr. Joseph on social media, where they exchanged nude photographs. M.M. and Mr. Joseph eventually agreed to meet up at his apartment where they had sex. M.M. testified that she was “keen” to get into the escorting business.

[37] M.M. was 15 years of age at the time and unable to consent to sexual activity with Mr. Joseph. By their verdict the jury found that Mr. Joseph believed M.M. was over the age of 16 and therefore capable of consenting to have sexual relations with him.

[38] On the day that M.M. and Mr. Joseph met, he received a text requesting sexual services in response to the backpage.com ad. He asked M.M. if she was willing to engage in sexual activity and she agreed to do it. The text came from the Ottawa Police who arrested Mr. Joseph and took M.M. to the police station to make a statement. Later, both C.A. and R.D. showed up at Mr. Joseph’s apartment and they too were taken to the police station to give statements.

[39] What attracted the attention of the Ottawa Police to the ad on backpage.com was its remarkably amateurish quality, including the text portion.

[40] C.A., R.D. and M.M. all insisted that Mr. Joseph was very nice to them, that he never exerted any pressure upon them to engage in prostitution, and that it was entirely their choice to do so. They all claimed that he was a very nice person, and that they were free to come and go to his apartment as they wished. They did not file victim impact statements during the course of the sentencing hearing.

[41] It is obvious that the convictions for making and possessing child pornography are markedly different in their fact situation from the normal case before the courts.

[42] In this case, it was conceded by defence counsel that the photographs technically fall under the definition of “child pornography” as it has been interpreted by the courts. The photographs are caught by section 163.11 of the Criminal Code, specifically subsection (a)(ii) which provides that a photograph is child pornography “if the dominant characteristic is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years.” It was conceded by the defence that the depiction of the buttocks and breasts were for a sexual purpose. It has been held that the anal region includes the buttocks: R. v. T.W., 2014 ONSC 4532.

[43] The only issue left to the jury was whether Mr. Joseph believed the individuals in the photos were over the age of eighteen. In the case of R.D. the jury did not believe that Mr. Joseph had taken reasonable steps to determine her age.

[44] In my opinion, in the circumstances of this case, I believe that any reasonable observer would find it shocking that making and possessing these photos should attract a six month jail term and, even worse, as is now in the legislation, a one year jail term.

[45] I have already alluded to the newspaper and media coverage that accompanied Mr. Joseph’s arrest which, given the facts of the case, was highly inflammatory, exaggerated and unfair to Mr. Joseph. The digital footprint can never be erased.

[46] The media attention affected Mr. Joseph significantly. While he was in jail, his fellow inmates learned of the charges against him and he was targeted as someone charged with crimes against women and children, causing him considerable stress, anxiety and fear. On one occasion, he was watching news with fellow inmates and his case came on T.V. Inmates began yelling at him. When he finally was released on bail, his Facebook page was filled with negative comments making him wary about making new friends, beginning relationships or seeking employment.

[47] Mr. Joseph also gave a videotaped statement to police which, in my opinion, is heartbreaking to watch. This is a young man with dreams of succeeding in life who was emotionally and financially destroyed by the very serious charges brought against him due to a serious lapse in judgment occurring at a highly vulnerable time in his life.

The Bail History

[48] At the time of his arrest Mr. Joseph had no criminal record. He was detained in custody on June 17, 2015. He applied for bail which was denied on July 3, 2015. He brought a review of his detention order in the Superior Court, which was denied on July 20, 2015. He brought an application for leave to have another review within 30 days. The application for leave was heard and granted on July 27, 2015. A second bail review application was heard on August 21, 2015, and bail was finally granted.

[49] Mr. Joseph was released on a recognizance with his father acting as surety. He was subject to house arrest, including being refused access to any personal computer, cell phone, or any other electronic device capable of accessing the internet, and was required to surrender his passport. He was not permitted to communicate with anyone under the age of eighteen except in the presence of that person’s parent or in the presence of Mr. Joseph’s surety, his father. He was bound to seek and maintain employment or education.

[50] On September 3, 2015, defence counsel faxed a letter to the Crown Team Lead. The letter was a request to vary, on consent, the applicant’s bail conditions. The applicant requested a change in surety and address. He wished to be able to live with his step-mother who lived closer to the city core, which would provide him with a better opportunity to seek employment. He also requested to be permitted to access the internet in order to seek work. Further, he requested that he be permitted to leave the house in order to attend his local gym and perform community service. The Crown did not respond to that letter.

[51] Defence counsel sent the same request to the new Crown Team Lead on October 23, 2015. Once again, the Crown did not respond to the letter.

[52] On October 25, 2015, Mr. Joseph was arrested for breach of his bail conditions. He was found walking on the street in the morning without his surety. He explained he was seeking employment. A bail hearing was held more than one month later, on November 30, 2015. Mr. Joseph was released once again on house arrest with his step-mother and brother as sureties.

[53] On February 2, 2016, defence counsel faxed a letter to the new Crown Team Lead. The letter requested variations to Mr. Joseph’s bail conditions, including that he be permitted to attend an eleven week basic training course for the Canadian Armed Forces beginning in April and permitting him to attend his local gym to train. The Crown did not respond to that letter.

[54] On February 12, 2016, defence counsel once again sent a follow-up email to the same Crown Team Lead. Crown Counsel finally responded on February 29, 2016, rejecting Mr. Joseph’s request for a change in conditions. This forced defence counsel to launch a contested application in the Superior Court for a change in conditions. The review was finally heard on May 16, 2016. Ultimately Mr. Joseph’s house arrest was changed to a 7:00 p.m. curfew. Unfortunately, the curfew condition did not make any exceptions for employment and in early June 2016, Mr. Joseph was offered a job at the local Dollarama store. Some of those shifts would extend past 7:00 p.m.

[55] On June 3, 2016, defence counsel emailed the Crown Team Lead requesting that Mr. Joseph’s bail conditions be varied to allow him to work outside his curfew. After exchanging numerous emails with two different Crown Team Leads, it took the Crown almost two months to approve the request.

[56] In the fall of 2016, Mr. Joseph’s preliminary inquiry was held. The most serious charges, as noted earlier, were dismissed and following the inquiry Crown counsel consented to varying Mr. Joseph’s bail conditions. Mr. Joseph was free to live where he wished, so long as he notified the police. The curfew remained in place. He was permitted to access the internet while at work or school.

[57] In late 2016, Mr. Joseph’s trial for the breach of his bail conditions was held. The charges against him were dismissed due to violations of Mr. Joseph’s Charter rights perpetrated by members of the Ottawa Police.

Mr. Joseph’s Reaction to the Bail History

[58] Mr. Joseph filed an affidavit setting out his experience following his arrest. Crown counsel did not seek to cross-examine him on the contents.

[59] He notes that when he finally gained his release from prison he was required to live with his father, who was his surety. He slept in the same room as his father with little or no privacy. The fact he could not access the internet prohibited him from looking for employment, which caused him great stress.

[60] He also had to sign in with the police once a week. He lived far from the police station and could not be out of the house unless in the presence of his surety. Mr. Joseph’s father often worked on sign-in days and there were certain days which caused a great deal of stress and anxiety in order to have his father free to be with him to sign-in. On some occasions when signing-in the police threatened to breach him because he was not with his father, despite the fact that his father was waiting in the car outside the police station. On one occasion he was required to have his defence counsel, Mr. Lyttle, take him to the station. He was faulted for not being with his father. Mr. Lyttle had to convince the police that Mr. Joseph was not in breach of his condition.

[61] He wished to change sureties from his father to his step-mother because his step-mother lived close to downtown where most jobs were located and she also lived in a bigger house. He had no car and little money for a bus pass. He wanted access to the internet. His lawyer was making requests to the Crown but not getting any response.

[62] Mr. Joseph was worried when looking for work if he was not with his father. To help protect him, Mr. Lyttle wrote a letter for Mr. Joseph to carry which explained that he had been advised by Mr. Lyttle that he was complying with his conditions if he was looking for work.

[63] On October 25, 2015, he was walking down a public street in daylight and being followed by the police. He was stopped and charged with breaching his conditions for being outside his house without his surety. Mr. Joseph explained that he was looking for work and had a letter from his lawyer, but the police refused to look at it. He was charged with having a cell phone even though it did not have a data plan. He was then held in custody for 37 days before being released on November 30, 2015 after a contested bail hearing.

[64] His applications for bail had been vigorously opposed by the Crown on four occasions. He felt stigmatized and oppressed and came to believe it was because of his race.

[65] The bail conditions that were put in place on November 30, 2015, again included house arrest requiring him to be with either his step-mother or his brother. His brother was a full-time student and his step-mother worked long hours as a chamber maid. He felt guilt at burdening them and spent many days alone at home. He was lonely and unable to cultivate normal relationships. This situation remained constant for another seven months.

[66] On May 16, 2016, the application for a change in bail conditions was heard in the Superior Court. The Crown contested Mr. Joseph’s application. The application was successful and permitted a curfew for 7:00 p.m. Unfortunately, the curfew did not allow for employment outside the curfew hours. Mr. Lyttle made numerous requests to the Crown in June and July of 2016 requesting permission for Mr. Joseph to work at Dollarama. It took the Crown almost two months to agree on that simple request, resulting in financial hardship.

[67] Following the preliminary inquiry held in mid-November 2016, when the human trafficking charges were dismissed, the Crown agreed to remove his step-mother as a surety and allow him to live where he wished. Mr. Joseph characterized this as “the first mini-taste of freedom I had in over one and a half years.”

[68] In late November 2016, the breach charges were heard and dismissed. Nonetheless, he had lost 37 days of freedom due to this charge. Mr. Joseph continued to work right up to the date of trial and entered into a new relationship. His girlfriend became unexpectedly pregnant in the summer of 2017 and Mr. Joseph is now the father of a young baby.

[69] At the sentencing hearing Mr. Joseph expressed sincere sorrow and regret for his criminal conduct. He wishes to get on with his life and be a productive member of society.

Issues:

1. Does the mandatory minimum penitentiary term of two years contained in section 286.2(2) of the Criminal Code of Canada produce a cruel and unusual punishment in this case, or in reasonable hypothetical cases, contrary to section 12 of the Canadian Charter of Rights and Freedoms? If so, can the section be saved by section 1 of the Charter?

2. Do the mandatory minimum six month jail sentences (as they then were) contained in sections 163.1(2) and (4)(a) produce a cruel and unusual punishment in this case, or in reasonable hypothetical cases, contrary to section 12 of the Charter? If so, can the section be saved by section 1 of the Charter?

Analysis

[70] The most recent and helpful authority governing the application of section 12 of the Charter, which guarantees protection against cruel and unusual punishment, is that of our Court of Appeal in R. v. Morrison, 2017 ONCA 582, 136 O.R. (3d) 545. At paragraphs 116 and 117 the Court stated that the test is whether the sentence imposed is grossly disproportionate to what would be an appropriate punishment, having regard to the nature of the offence and the circumstances of the offender. The test is a high one. The punishment must be more than merely excessive. The punishment must be so excessive that it would outrage standards of decency and found to be abhorrent or intolerable. A law will violate section 12 if it imposes a grossly disproportionate sentence on the individual in question or if the law’s reasonably foreseeable applications will impose grossly disproportionate sentences on others.

[71] As a first step, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing set out in the Criminal Code.

[72] Second, the court must determine whether, in view of the fit and proportionate sentence, the mandatory minimum sentence is grossly disproportionate to the offence and its circumstances. If so, it violates section 12.

[73] The wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it will be that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate.

[74] With respect to sentences that are alleged to constitute cruel and unusual punishment, the test for review under section 12 of the Charter is one of “gross disproportionality.”

[75] In Morrison, the accused was convicted of luring a child. For two months he chatted online with an undercover police officer on a website meant only for individuals 18 years of age or older. The undercover officer represented that she was under 18. The two had sexualized conversations and made plans to meet for sex. A conviction for child luring attracted a mandatory one year jail sentence. At the sentence hearing the offender argued that the mandatory minimum constituted a cruel and unusual punishment, contrary to sections 7 and 12 of the Charter. The trial judge agreed and declared the punishment provision invalid. The Court of Appeal upheld that decision. The Court of Appeal felt that a fit sentence was four months in jail and that a 12 month sentence would be grossly disproportionate.

[76] With respect to whether a mandatory minimum sentence can be saved by section 1 of the Charter, which provides that a limit on a constitutional right is reasonably and demonstrably justified in a free and democratic society, two criteria must be satisfied. First, the objective which the measures responsible for a limit on a Charter right or a freedom are designed to serve must be “of sufficient importance to warrant overriding a constitutionally protected right or freedom.”: R. v. Oakes, [1986] 1 S.C.R. 103, 24 C.C.C. (3d) 321 at para 69.

[77] Once a sufficiently significant objective is recognized, the party invoking section 1 must show that the means chosen are reasonably and demonstrably justified. This involves a form of proportionality test. Although the nature of the test will vary depending on the circumstances, in each case courts must balance the interests of society with those of individuals and groups. There are three components to the proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. They must be rationally connected to the objective. Second, the means, even if rationally connected to the objective should impair “as little as possible” the right or freedom in question. Third, the law’s salutary effects must be proportionate in the strict sense to its deleterious effects on the affected Charter right. The onus of establishing that a limit on the right or freedom guaranteed by the Charter is reasonable and demonstrably justified in a free and democratic society rests upon the parties seeking to uphold the limitation: Oakes at para 66.

[78] Mr. Lyttle concedes that the relevant sections are prescribed by law and that the robust prosecution and adjudication of those involved with exploiting underage persons in the sex trade and/or making and possessing child pornography is necessary and expected in a free and democratic society. It is also conceded that the mandatory minimum sentencing schemes found in the relevant sections are rationally connected to their relevant objectives. But, he submits they do not minimally impair the right to be free from cruel and unusual punishment by removing judicial discretion to craft a fit sentence in an individual case. Forcing the court to sentence undeserving offenders to jail cannot be considered minimal impairment. Furthermore, Mr. Lyttle argues that there is no proportionality between the deleterious effects of the measures and the salutary effects of the law. The deleterious effects are obvious. Offenders can be sentenced to unfit and disproportionate sentences that conflict with other sentencing principles found in the Code and the common law.

Reasonable Hypotheticals

[79] I can imagine numerous reasonable hypotheticals which would attract the minimum penalties involved in this case. I shall describe only two.

[80] An eighteen year old young man could be convicted of making and possessing child pornography by photographing young women sunbathing on a beach wearing thong bikinis without determining whether they are eighteen years of age or under. The person who took the photo would be subject to a mandatory minimum of one year in jail. In my view, such a sentence would be grossly disproportionate to the degree of fault involved in the taking of the photo.

[81] One could be convicted of receiving a financial or other benefit from the sale of sexual services on these facts: Kevin and Bob are best friends and are attending college. They are both nineteen years of age. Bob lives in residence. Kevin has his own apartment. Bob has seen a young woman in the campus pub whom he finds very attractive. He asks if he can join her and buy her a beer. She agrees. They chat. She seems attracted to him. He does not ask her age. She is in fact seventeen. He learns that she is a part-time escort and engages in sexual relations in return for money. They agree they wish to have sexual relations, for which Bob will pay her $100 for one hour. Bob needs a place to meet with her because she lives with her parents. He asks Kevin if he can use Kevin’s apartment in order to have sex with the girl. He informs Kevin he will have to pay her $100. Bob tells Kevin he will pay him $25 if he agrees to let him use his apartment in order to have sex with the young woman. Kevin agrees. Neither Bob nor Kevin realize that it is an offence to profit from or pay for sexual services. All they know is that the age of consent to engage in sex is sixteen. On these facts, Kevin would be guilty of an offence under section 286.2 (2) of the Code and subject to a mandatory minimum of imprisonment of two years in a penitentiary. Bob would guilty of an offence under section 286.1 (2) of the Code and subject to a mandatory minimum sentence of six months in jail. In my view, dealing with Kevin, whose conduct attracts the charge of which Mr. Joseph has been convicted, such a sentence would be grossly disproportionate to his degree of fault.

Position of the Parties

[82] For his part, Mr. Lyttle submits that an appropriate sentence is a suspended sentence and probation together with at least one year credit for time served and time spent on stringent bail conditions, including house arrest.

[83] Crown counsel submits that an appropriate sentence for Mr. Joseph is three and a half years in penitentiary and therefore section 7 of the Charter is not engaged. In support of this submission numerous cases were filed in which penitentiary sentences were meted out for the offences of which Mr. Joseph has been convicted.

Disposition

[84] The case law submitted by the Crown in support of a three and a half year sentence involves factual situations that are far more serious than those involving Mr. Joseph. If anything, the cases filed by Crown counsel demonstrate clearly that Mr. Joseph’s conduct falls at the lowest end of the spectrum.

[85] In this case, Mr. Joseph’s pre-sentence custody has been consumed as a result of his pleas of guilty to possessing stolen goods and trafficking in marijuana. This leaves the issue of what credit should be afforded to Mr. Joseph as a result of his oppressive bail conditions. Those stringent conditions lasted from his time of release on August 21, 2015 until his preliminary inquiry in late November 2017.

[86] Mr. Joseph’s case took 31 months to complete. Mr. Lyttle submits that Mr. Joseph was either needlessly in custody or on strict bail conditions for over two and a half years. The conditions affected his physical and mental health and prevented him from advancing in life.

[87] I agree with that submission. In my view, an appropriate credit for the pre-sentence strict bail conditions that seriously adversely effected Mr. Joseph should result in a credit of nine months of equivalent custody: R. v. Downes, (2006), 79 O.R. (3d), 321, 205 C.C.C. (3d) 488.

[88] The evidence established that very little money was made by C.A. or R.D. in the course of their very brief time using Mr. Joseph’s apartment to engage in prostitution. When Mr. Joseph was arrested he had $5.00 in his pocket.

[89] All witnesses regarded Mr. Joseph as being very nice and in fact naïve. His business involved no sophisticated planning. Mr. Joseph did not use any coercive, manipulative or oppressive tactics to recruit C.A. or R.D. Both agreed that their involvement with Mr. Joseph was voluntary, and they were free to cease engaging in prostitution should they choose. On the day before Mr. Joseph’s arrest, both C.A. and R.D. had decided to stop working with Mr. Joseph and instead work for R.D.’s friend. Mr. Joseph’s actions, and failure to inquire as to the age of R.D. demonstrate a serious lapse in judgment; however, an objective view of the facts causes me to conclude that Mr. Joseph has been subjected to sufficient punishment.

[90] As stated earlier, no victim impact statements were filed during the sentence proceedings. During her evidence at trial, C.A. testified that she was progressing well in life. She lives in Toronto with her cousin and is attending college, studying travel and tourism. M.M. has completed high school and is now attending college. The only information we have about R.D. is that given on the voir dire to permit her testimony to be presented through her videotaped interview with the police and the audiotape of her testimony at the preliminary inquiry. During the voir dire it was stated that she was “couch surfing” in the City of Toronto and had outstanding warrants for her arrest.

[91] The appropriate sentence for Mr. Joseph on the facts of this case is a suspended sentence with probation for a term of one year upon the usual conditions, and that he report to a probation officer and not communicate with either C.A., R.D. or M.M. The sentence shall be concurrent on all counts.

[92] While the crimes of which Mr. Joseph has been convicted contain aggravated circumstances, notably that he did not take reasonable steps to ascertain that R.D. was over the age of eighteen years, the profound effects of the charges on Mr. Joseph should serve to deter anyone who might be tempted to engage in similar activity. In my view, the goal of deterrence to others has been achieved in this case.

[93] Given that the appropriate sentence for Mr. Joseph is a suspended sentence with probation, it follows that the mandatory minimum sentences for his offences are grossly disproportionate, and therefore unconstitutional, nor can they be saved by section 1 of the Charter, because they lack proportionality. Moreover, reasonable hypotheticals demonstrate the minimums to be unconstitutional.

[94] I find that the mandatory minimum sentence of two years of imprisonment contained in section 286.2 (2) of the Code is of no force and effect pursuant to section 52(1) of the Constitution Act, 1982. I would also find that the minimum penalties for making and possessing child pornography pursuant to sections 163.1 (2) and (4) are of no force and effect pursuant to section 52(1) of the Constitution Act, 1982.

[95] A sample of Mr. Joseph’s DNA will be taken pursuant to the provisions of section 487.051 of the Code.

[96] Mr. Joseph shall be listed on the Sex Offender Registry for his entire life pursuant to the provision of section 490.013 (2.1) of the Code.

[97] Crown counsel has asked that I impose a weapons prohibition for a period of 10 years against Mr. Joseph pursuant to section 109 of the Code. In my opinion, there is no basis to make such an order as Mr. Joseph has not exhibited any tendency to violence, nor are the offences of which he has been convicted designated under section 109. To make such an order would prohibit him from pursuing a career with the Canadian Armed Forces and would be counterproductive.

C.D.A. McKinnon J.

Released: August 14, 2018