ONTARIO SUPERIOR COURT OF JUSTICE

Court File No.: CR-17-5/580 and 583 Date: 2018-08-08

Between: Her Majesty the Queen - and - Michael Lopez

Counsel: Michael Wilson, for the Crown Lydia Riva, for the accused

Heard: June 25, 2018

Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.

Kenneth L. Campbell J.:

Reasons for Sentence

A. Overview

[1] On August 16, 2017, the jury returned its verdict in this case, finding the accused, Michael Lopez, guilty of the following offences: (1) exercising control, direction or influence over the movements of the female complainant for the purpose of exploiting her, thereby committing the offence of human trafficking; (2) knowingly receiving a financial benefit from the offence of human trafficking; (3) exercising control, direction or influence over the movements of the complainant for the purpose of facilitating the offence of obtaining her sexual services for money; (4) advertising sexual services for money; (5) knowingly receiving a financial benefit from the sexual services of the complainant; (6) assaulting the complainant with a weapon, namely, a car door; (7) threatening the complainant with death; (8) wilfully attempting to obstruct the course of justice in a judicial proceeding; and (9) two additional charges of assaulting the complainant. These offences were all committed in Toronto during the nearly 17½ month period between September 1, 2014 and February 13, 2016. The jury acquitted the accused of a number of other specific alleged offences of assault.

[2] Further, on August 16, 2017, while the jury was deliberating over its verdict, the accused pled guilty to two counts of breaching a recognizance by (1) contacting or communicating with the complainant when prohibited from doing so; and (2) being within 100 meters of any place the complainant was known to live, work or attend school. These two additional offences were both committed in Toronto during the approximately nine-month period between May 5, 2015 and February 13, 2016.

[3] Essentially, by its verdict, the jury accepted that the accused, over a 17½ month period of time, exercised control, direction or influence over the movements of the complainant, for the purpose of exploiting her as a prostitute and facilitating her work as a prostitute, and in order to receive the monies she earned as a prostitute. The jury also accepted, by its verdict, that the accused advertised the complainant’s sexual services for money and employed various acts of violence and a threat of death against the complainant. In addition, after he was arrested for his “assault with a weapon” offence against the complainant on May 5, 2015, the accused wilfully attempted to obstruct the course of justice in relation to those proceedings against him, and he breached two of the conditions of his recognizance by continuing to contact and communicate with the complainant and be in close physical proximity to the complainant while prohibited from doing so by the terms of his recognizance.

[4] The accused now appears for sentencing.

[5] The parties have agreed that, pursuant to the rule against multiple convictions for the same crimes, articulated in R. v. Kienapple, [1975] 1 S.C.R. 729, at pp. 744-754, the jury’s findings of guilt with respect to the offences of exercising control, direction or influence over the movements of the complainant for the purpose of facilitating the offence of obtaining her sexual services for money (count 3), and knowingly receiving a financial benefit from the sexual services of the complainant (count 5), should be conditionally stayed as they are both reflected by the findings of guilt for exercising control, direction or influence over the movements of the complainant for the purpose of exploiting her, thereby committing the offence of human trafficking (count one), and knowingly receiving a financial benefit from the offence of human trafficking (count two), respectively. I agree.

[6] Based upon his conviction for the offence of human trafficking, the accused faces the mandatory minimum sentence of four years imprisonment prescribed by s. 279.01(1)(b) of the Criminal Code, R.S.C. 1985, chap. C-46. Earlier in these proceedings, the accused launched an attack on the constitutional validity of this mandatory minimum sentence, claiming that it amounts to cruel and unusual punishment in violation of s. 12 of the Canadian Charter of Rights and Freedoms, and arguing that it is not saved as a “reasonable limit” on his right to be free of such punishment within the meaning of s. 1 of the Charter. In response, the Crown argued that s. 279.01(1)(b) of the Criminal Code, is not in violation of s. 12 of the Charter of Rights. However, as the accused has now already served the equivalent of four years imprisonment, the parties have agreed that, in the circumstances of this case, the constitutional validity of s. 279.01(1)(b) of the Criminal Code has become a moot and academic issue. Accordingly, I will not address the issue of the constitutional validity of this provision of the Criminal Code. See R. v. Lloyd, 2016 SCC 13, at para. 4, 11, 17-18.

[7] The Crown argues that before taking into account the pre-sentence custody already served by the accused, the accused should be sentenced to a global penitentiary sentence of between five and one-half and six years imprisonment. In advancing this position, the Crown relies primarily upon the gravity of the numerous criminal offences committed by the accused, the corresponding need for the imposition of a substantial, proportionate penitentiary sentence upon the accused, who already has a significant criminal record, and the significance of the principles of deterrence (both specific and general), and denunciation, in the circumstances of the present case.

[8] Defence counsel argues, however, that the accused should not be sentenced to any further term of imprisonment, but rather should now be given a non-custodial “time served” probationary disposition of three years duration. In advancing this position, defence counsel relies primarily upon the relative youth of the accused, the many excellent rehabilitative steps he has taken during his long period of pre-sentence custody, and his excellent chances for a successful transition into becoming a productive and contributing member of society, especially given his sincere remorse and regret over the commission of these offences. Defence counsel argued that, even though the accused has already served the equivalent of at least four years imprisonment, the appropriate range of sentence in this case was only ever somewhere between two and three years of imprisonment. Nevertheless, the accused still seeks the imposition of a helpful and supportive three-year probationary term to assist in his positive reintegration into society.

[9] In my view, for the reasons that follow, the gravity, duration and number of the criminal offences committed by the accused require the imposition of a global sentence of at least five years imprisonment, notwithstanding the mitigating personal circumstances of the accused and his positive prospects for rehabilitation. However, having regard to the fact that the accused has already served the equivalent of four years imprisonment, the accused will now be sentenced to a one-year global term of reformatory imprisonment, followed by a three-year term of probation, and accompanied by a number of ancillary sentencing orders.

B. The Facts of the Offences

1. Introduction – Their Budding Romance and Sex Trade Business

[10] The complainant first met the accused in July of 2014. She was 19 years old. The accused was 21 years old. The complainant was romantically interested in the accused and they spent some time together for the next few weeks. They soon became intimate with each other, but their relationship was a casual one.

[11] In August of 2014, they entered into a business relationship together, in the sex trade. The complainant proposed the arrangement. She would work as a prostitute, providing sexual services for money, and the accused would take care of her, in that he would set up the internet advertisements, chose and book the hotels, drive her to the “out calls,” and provide her with security by being physically nearby during the calls. They agreed to a 60/40 financial split of the profits, with the accused taking 60% and the complainant taking 40%. This split was the accused’s idea, and the complainant accepted it.

[12] The complainant explained that she made this business proposal to the accused as she had a big romantic attachment to him, and wanted to keep him around, and she thought that the money from this arrangement would keep him around. She thought that the accused was attracted to her, but she also knew that the accused was interested in money.

[13] The complainant had previously worked, on occasion, in the sex trade, maybe three times, but she was not very active and did not take it seriously. On these earlier occasions, she did not have a “pimp” to help her, but rather had learned the sex trade from a friend, who was also a sex-trade worker. The complainant admitted that her mother also worked in the sex trade.

2. The Accused Soon Started Keeping All of the Money

[14] In the beginning, when they first put this business arrangement into practice, around the beginning of September of 2014, things went well for a short period of time, but then the accused started keeping 100% of the money for himself. The complainant was making approximately $1,000 or $2,000 a week profit as a prostitute. The accused explained that he needed it for “living expenses.” It was around this same time that the accused and the complainant started living together in a basement apartment. Thereafter, the accused kept all of the money for himself, but provided her with some funds for “bare necessities,” like personal hygiene products.

3. Controlling the Complainant with Verbal and Physical Abuse

[15] Their relationship changed significantly in October of 2014, as the accused started getting more “money hungry.” The accused began to “make her work a lot of calls” until he was satisfied with the amount of money that she had earned. The accused made her work these calls by posting internet advertisements and telling her that she would have to go on the calls or there would be violence. Sometimes he would verbally abuse her, slap her and pull her hair if she “did not do enough calls.” This would happen if she was tired and did not want to do late-night calls, or when she was menstruating.

[16] The complainant explained that she began to fear the accused November of 2014, and that this fear influenced her actions “most of the time.” For example, she said that even if she did not want to “do a call” she felt that she had to do it as she feared that the accused would “beat [her] up” or “verbally insult” her if she did not do it.

[17] Periodically, the complainant complained to the accused about the way he was treating her. She complained that he was using her, that he treated her like an employee, and that he had no use for her after he took her money. She explained that the accused would be nice to her until he got the money, and then he would change his personality and become rude. Sometimes, after he got his money, he would ignore her calls until it was time for her to go to work again. The accused referred to the complainant as his “money bag” and his “vaca con leche” or “cow with milk.”

4. Working in the Sex Trade in the Hotel – Unprotected Physically and Sexually

[18] Sometime after November of 2014, they started to work more frequently doing “in-calls” in the hotels, where the complainant was expected to work, essentially, “24/7.” It was the accused who decided that she should work in hotels as “in-calls” were easier in that there was no travelling, and so the complainant could see more clients and, thereby, make more money. The complainant did not question this decision by the accused as she did not want to get slapped. By this point, she just did what he told her to do. During this time, the accused would not be in the hotel while the complainant was working, but he would come back to collect the money and sleep there. While she was working, the complainant had to protect herself, and she was afraid.

[19] Initially, the accused respected the complainant’s limitations as to the nature of the protected sexual acts in which she would participate for money. However, after November of 2014, the accused began to offer potential clients “bare-back sex,” or sex without protection. The accused did not discuss this with the complainant, but just told her to “do it” as this would make more money, and it was “not likely” that she would get sick from it. The complainant thought that she would get slapped if she said “no.” The complainant provided this service of unprotected sex for approximately the next six to eight weeks, until contracting chlamydia (near the end of 2014) and gonorrhea (in January of 2015). Fearing that she might contract a sexually transmitted disease that was “even worse,” the complainant told the accused that she could no longer engage in unprotected sex. The accused agreed, but required her, instead, to perform acts of fellatio without the use of a condom.

[20] As their relationship continued, the complainant explained that she stayed with the accused because she still loved him, and wanted to be with him, and because she was scared to leave him. By the spring of 2015, the accused was still keeping 100% of her sex trade earnings. She did not question him about this. The complainant was living off her “Ontario Works” cheque and was getting some money from her father. In addition, every three or four days, the accused would give her $20 or $40 so she could purchase her personal hygiene products. She was working in the sex trade almost every day. It was the accused who decided what days she would work, and she did not oppose his directions.

5. The Violent Incident on May 3, 2015 – Assault with a Weapon

[21] On the afternoon of May 3, 2015, when the accused came to pick up the complainant at a hotel, she saw that he had been texting another woman, and she refused to give him the $200 or $300 she had earned from her sex trade work. On their way home, the accused picked up a male friend and, in his presence, told the complainant to “watch” what would happen if she did not give him the money. The accused then poured a bottle of water over her and took the money from her purse, saying that “it was his to take.” The accused then told her that she was “done.”

[22] When they arrived home, the accused told her to get out of the car, but she refused. She wanted to talk to him. When the accused started calling her names, she told him that he was not treating her properly and that he should not abuse women. The accused invited her to call the police. When the complainant then called the Toronto Police Service at 23 Division, the accused took her phone, a Blackberry Torch, and threw it out the car window.

[23] The accused’s friend then drove them over to a nearby supermarket. On the way, the accused told her that she had been given a chance to get out of the car, and now she should “watch” what would happen. He was being very loud and aggressive, and the complainant was trying to calm him down. The accused told her that they were going somewhere secluded where it would be safe to attack her. The vehicle stopped by the loading docks at the supermarket.

[24] Once the vehicle was stopped, the accused repeatedly told the complainant to get out of the car, or he would physically remove her. Eventually, when he got out of the car himself, and she realized he was going to forcefully remove her from the car, she too started to get out of car. As she did, the accused forcefully “slammed” the car door against her legs and body about five or ten times. The complainant tried to resist this, but it resulted in bruising on her upper right thigh. The incident ended when some bystander said that he was going to call the police, and the complainant encouraged him to do so. At that point, the accused told her that she should “mind [her] words” and “watch what [she] says.” Ultimately, the accused was found guilty of “assault with a weapon” in connection with this incident.

6. The Attempt to Obstruct Justice

[25] In text messages exchanged between the accused and complainant very shortly after this incident, the complainant expressed her worry about what to say about the accused’s assault on her by the loading docks in the supermarket parking lot, and the accused told her not to worry, as he would tell her what to say.

[26] The complainant explained that, in a face-to-face meeting the following day, the accused told her to say that “nothing happened” and that there was “no assault.” The complainant followed these instructions from the accused and ultimately told a “victim-witness” person at the courthouse the next day that there had been “no assault.”

[27] Subsequently, the accused told the complainant to change her phone number so that the police would not be able to contact her about the assault. Within a day or two, the complainant changed her phone number as the accused had asked.

7. Breaching the Conditions of his Recognizance

[28] The accused was released, almost immediately, following his arrest for the May 3, 2015 “assault with a weapon” offence, on a recognizance which strictly prohibited him: (1) from having any contact or communication, directly or indirectly, and by any means, with the complainant; and (2) from attending within 100 meters of any place where the complainant was known to live, work, go to school, or otherwise frequent.

[29] The accused almost immediately began to breach those two conditions of his release. Indeed, from the date of his release in early May of 2015, until he was finally arrested by the police in relation to all of the other offences in mid-February of 2016, the accused had virtually daily contact and communication with the complainant as, once he was released, he simply resumed his sex trade business with the complainant as if nothing had happened. The accused continued to collect the money earned by the complainant in her prostitution activities, and continued to exploit the complainant in this regard, sometimes by the use of threats and violence.

8. The Death Threat – June 16, 2015

[30] On June 16, 2015, the complainant made an audio recording of a conversation she had with the accused. The complainant explained that, in the time leading up to this conversation, the accused had called her to get up to service a client at 3:00 or 4:00 a.m., and she was tired and did not want to go. The accused started insulting her and telling her that she had to go on the call. The complainant threatened him with going to the police about his violation of his bail order, to get him to leave her alone. She was scared and decided to make the recording. She thought that, one day, the accused might actually kill her, and so she surreptitiously recorded the rest of the telephone call with the accused on her iPad.

[31] During the course of the recorded portion of the conversation, the accused told the complainant that he was “dead serious” in telling her that if she did something to put him in jail for a couple of weeks or a month, which was “nothing,” she would be “fucking dead” and her “life [would] be finished.” He told her, “you don’t play with my freedom girl.” The complainant ultimately went on the sex trade call.

9. Continuing to Violently Control the Complainant – And Take Her Sex Trade Money

[32] Throughout the summer and fall of 2015, the accused continued to control the complainant and her work in the sex trade and take the money that she earned. The complainant explained that the accused would frequently hit her and spit on her whenever she would “vex” or upset him. The complainant said that this kind of thing happened “a lot” during their relationship, estimating that this had happened “more than 30 times.” She said that it was “always about money or his calls” – something to do with the business part of their relationship.

[33] In text messages exchanged between the accused and the complainant at the end of May of 2015, the complainant reminded the accused that he had “been hitting [her].” The complainant explained that in the three-week period just before this exchange, the accused had been hitting her, slapping her and pulling her hair, but that this was “normal” for her and she felt “indifferent” to it.

[34] In a text message exchange between them in mid-July of 2015, the complainant told the accused that she was “tired of this” and she noted that he “beat” her, “pulled [her] hair again” and “spit” on her, and “took money from [her],” and she was “done,” this time “for real.” This was in relation to another argument over money between them.

10. The Violent Incident on the Highway in January of 2016

[35] Sometime in late January of 2016, the complainant and the accused were travelling together on Highway 407. She had been working at one hotel, and the accused was driving her to another hotel in Vaughan. She had given him the $300 or $400 that she had earned from the sex trade, but he was angry and upset because she had failed to meet his demanding “quota” of earning $1000 a day from her sex trade work. When she muttered something under her breath, the accused attacked her.

[36] The complainant explained that, as the vehicle continued, the accused used his right arm to grab her head and he “yanked” her toward him, and he started slapping and punching her. The accused struck her about five times with his right hand while she was trying to get him off her. By the time they arrived at the new hotel, she had a bruise on the right side of her face. Ultimately, the accused was found guilty of assault in connection with this incident.

[37] Subsequently, the complainant sent the accused a text message, appending a photograph of her injury to the lower right side of her face, near her lip area, and she told him that he could not hit her like that. The accused replied that it was simply a “love tap,” and just shrugged it off as if it was a joke.

11. The Complaint to the Police – February of 2016

[38] The complainant explained that, in the month or so leading up to her complaint to the police on February 14, 2016, the accused became more violent, and would pull her hair, slap her and insult her with greater frequency. He also seemed to need more money. In the result, he would still make her see clients even when she was tired, and he would get upset if she was not making enough “calls.” The complainant explained that she got tired of “getting hit like [she] was a dog.”

[39] For example, as revealed in a text message exchange between them in late January of 2016, the accused required her to perform an act of unprotected fellatio on a customer the complainant described as “scary,” old and “creepy,” even though she told him she was “starving” and he had told her that there would be no more clients. The accused told her that he really needed the money, and she ultimately did what she was told, as she had no choice, and did not want to get slapped by the accused. The complainant said that the accused was “always threatening to hurt [her].”

[40] The accused told the complainant that he was going away on a vacation to Montreal with his family between February 6 and 13, 2016. While he was away on vacation, the complainant continued to work in the sex trade and send him the proceeds – approximately $1,000. When she learned that the accused had actually gone on a vacation to the Dominican Republic with another woman, the complainant was very upset, betrayed and hurt. She realized that she was “done” with the accused, but she believed that she would never be able to get rid of him otherwise, so she went to the police on February 14, 2016. While she agreed that one of the “main” reasons she went to the police was the fact that the accused had gone on a vacation with another woman, she had also come to realize “the hold” that the accused had over her, and she knew that if she did not end their relationship, she would probably just keep working for him until she was “old enough to be tossed away.”

12. The Aftermath

[41] The complainant explained that, while the sex trade operates mostly in cash, and while she did not keep any documentation, she estimated that, during the time that they were engaged in the sex trade business together, she would have given the accused a total of between $50,000 and $70,000, and she personally kept just a “very low percentage” of that amount, perhaps 10-15%. In her trial testimony, the complainant agreed that she still, occasionally, works in the sex-trade, but now without anyone as her “pimp.”

13. The Impact of the Offences on the Complainant

[42] In her victim impact statement, the complainant asserted that while she had been in love with the accused, and had given him all she had emotionally and financially, he had “preyed” upon her and manipulated her and had used fear and love to trap her in a “toxic relationship.” The complainant claimed that the accused had changed her life forever, as she will always be scared, and will always be watching over her back. The complainant also indicated that she cannot be in a normal relationship now because she is scared that every person she trusts will just end up hurting her as the accused did – that all men will be just like the accused. The complainant noted, however, that the “silver lining” of their toxic relationship was that the accused helped her grow as a person. The complainant hoped that, one day, the accused would be able to “get help.”

C. The Personal Circumstances of the Offender

[43] The accused was born on January 21, 1993. He is now 25 years of age. He was in his very early twenties when he committed these offences.

[44] The accused had a relatively happy early childhood and he developed a very close relationship with his mother. Unfortunately, his father was involved in the criminal justice system, and the accused became estranged from him.

[45] Equally unfortunately, the accused’s mother abandoned him when he was just 14 years of age, to move to Jordan in the middle-east to pursue a romantic relationship. This was very upsetting and traumatic for the accused, given the closeness of their relationship. The young accused was left in the care of a family friend, who had her own involvement in the criminal justice system, and who proved to be a totally inappropriate guardian. In the result the accused simply stopped going to school, before ever attending high school, and was under the supervision of a woman who was frequently committing crimes. Ultimately, the police and the Children’s Aid Society became involved, and the accused was placed in foster care for a period of approximately four months, before his mother finally returned to Toronto to resume her parenting duties for the accused, when he was 15 years old. She continues to love and support him now.

[46] The accused has a significant criminal record, that started with youth court convictions in 2010, when the accused was just 17 years old, and has continued into adulthood. The accused has been convicted of some 27 previous criminal offences. Most of his prior convictions are for offences of dishonesty, such a fraud under $5,000 and fraudulent use of a credit card. However, the accused also has previous convictions for robbery, and failing to comply with recognizances, undertakings, youth court dispositions and probation orders, as well as convictions for dangerous driving and driving while disqualified. The accused has usually received probationary sentences or fines for these past offences. His most significant previous sentence was a six-month long conditional sentence imposed upon him in February of 2013. This is his first term of actual imprisonment.

[47] Since his arrest on these charges, and his detention in the Toronto East Detention Center, the accused has taken a number of significant and important steps towards his rehabilitation. While he has incurred two institutional misconducts during his time in this detention facility, his conduct there has otherwise been exemplary. More particularly, the materials provided to the court on the sentencing hearing reveal the following:

• The accused wrote a heart-felt letter of apology to the complainant, in which he accepted full responsibility for his actions, and expressed his sincere remorse and contrition for the commission of these offences, and he expressed his hope that the complainant will be able to positively move forward from these offences and wishing her well in the future. The accused reiterated this apology in his own comments at the end of the sentencing hearing.
• The accused has been under the treatment of a clinical psychologist, who has reported that while it is very difficult to complete counselling sessions in the detention center, the accused actively participated in his counselling sessions, and did address some of the issues (i.e. depression and anxiety) that were contributing to his criminal behavior, including his successful completion of the anger management program. The clinical psychologist concluded that the accused had demonstrated some insight into his problems, was taking responsibility for them, seemed determined to make positive changes in his life, and was serious and diligent in his approach to treatment.
• The accused not only started, but successfully completed, his high school education, and obtained the equivalent of a Secondary School Graduation Diploma. This could only have been accomplished through perseverance and many hours of hard work.
• The accused has applied to, and been accepted in, a College level educational program in Automobile Mechanics, and he plans to continue his education in this regard when he is released from custody. This is a realistic and admirable goal for the accused, and he should be encouraged to follow-through on his current plan to become involved in this valuable trade.
• The accused successfully completed a great number of the programs offered to inmates in the Toronto East Detention Centre, including programs in life skills, anger management, changing habits, thoughts to action, self-esteem, and emotion regulation. Indeed, it appears that the accused took as many classes and programs as were offered at the facility.
• The accused has sought, and has been granted access to, the individualized counselling programs offered by the John Howard Society following his release from custody, focusing on emotion regulation and anger management.
• The accused has sought the assistance of the Salvation Army, upon his release from custody, to participate in its program for men, to help control and manage their anger in intimate relationships. Indeed, the accused expressly requested that his participation in this program be made a condition of his probation order.
• The accused has also sought the assistance of the “The Toronto Mental Health and Addictions Access Point,” and is now on their waiting list for this centralized service.
• For almost all of his time in custody, the accused worked as one of the “unit servers” in the facility, delivering food to other inmates on the unit, and cleaning the unit thereafter. This was a job of some responsibility, and for which the accused was picked by the guards who worked in the facility, based on his good behavior in the detention facility.

[48] The still youthful age of the accused and his clear interest in self-improvement, as evidenced by the many dedicated and impressive steps he has taken during his pre-sentence detention, show that he is a good candidate for rehabilitation notwithstanding the length of his criminal record. He should be encouraged to continue on this path of change and progress in the future and to abandon any further participation in a criminal lifestyle.

D. The Governing Sentencing Principles

1. The General Sentencing Principles

[49] Pursuant to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing is to contribute 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: (1) to denounce unlawful conduct; (2) to deter the offender and others from committing offences; (3) to separate offenders from society where necessary; (4) to assist in rehabilitating offenders; (5) to provide reparations for harm done to victims or the community; and (6) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and the community.

[50] According to s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[51] Section 718.2 of the Code requires a sentencing court to also consider a number of other principles: (1) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (2) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (3) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (4) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (5) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

2. The Sentencing Principles Specific to the Present Case

[52] For many years Canadian courts have decried the inherently exploitive, coercive and controlling actions of “pimps” in relation to prostitutes. The unfortunate contemporary reality of the sex trade is that male pimps typically are involved in the exploitation, degradation and subordination of women. At its most basic level, it is a form of slavery, with pimps living parasitically off the earnings of prostitutes. Pimps exercise their control over prostitutes by means of a variety of tactics including emotional blackmail, verbal abuse, threats of violence and/or pure physical violence and brutality. The prostitutes that are the subject of this coercive exploitation are typically vulnerable and disadvantaged women, who have been manipulated and taken advantage of by the pimp. Even in cases where their initial participation in the sex trade is voluntary, including perhaps their business association with the pimp, and adopted for reasons of perceived increased security and safety in an inherently dangerous line of work, the relationship invariably becomes one-sided and exploitive. Prostitutes are ultimately forced, in one way or another, to provide sexual services for money in circumstances where they would not otherwise have agreed to such services, and the money earned from those sexual services is collected by the pimp. Accordingly, in a very real and practical sense, pimps traffick in the human resources of prostitutes, callously using their sexual services as an endlessly available commodity to be simply bought and sold in the market place. Accordingly, pimps have been aptly described as a “cruel, pernicious and exploitive evil” in contemporary society. See, for example, Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123, at pp. 1134-1135, 1193-1194; R. v. Downey, [1992] 2 S.C.R. 10, at pp. 32-35; R. v. Grilo (1991), 64 C.C.C. (3d) 53 (Ont.C.A.), at pp. 60-61; R. v. Naud (1996), 106 C.C.C. (3d) 348 (B.C.C.A.), at paras. 40-44, affirmed, , [1997] 1 S.C.R. 312; R. v. Miller, [1997] O.J. No. 3911 (Gen.Div.), at paras. 33-45.

[53] In terms of the range of sentences that are appropriate for pimping offences, Canadian courts have generally accepted that, in cases like the present one, where the accused has coerced a woman into becoming or remaining a prostitute and exercised a significant degree of control over her activities, sentences of four or five years are typically imposed. General deterrence, denunciation and specific deterrence are said to be the paramount sentencing consideration. Even longer sentences have been imposed and upheld in more aggravating circumstances. The imposition of any specific sentence depends, of course, upon the individual circumstances of each case, and consideration of a variety of factors including: (1) the degree of coercion or control imposed by the pimp on the prostitute's activities; (2) the amount of money received by the pimp and the extent to which the pimp allowed the prostitutes to retain their earnings; (3) the age of the prostitutes and their numbers; (4) any special vulnerability of the prostitutes; (5) the working conditions in which the prostitutes were expected or encouraged to operate, including their physical surroundings in terms of soliciting and servicing customers, and safety concerns, in addition to whether appropriate health safeguards were taken; (6) the degree of planning and sophistication, including whether the pimp was working in concert with others; (7) the size of the pimp’s operations, including the numbers of customers the prostitutes were expected to service; (8) the duration of the pimp’s exploitative conduct; (9) the degree of violence, if any, apart from that inherent in the pimp’s parasitic activities; (10) the extent to which inducements such as drugs or alcohol were employed by the pimp; (11) the effect on the prostitutes of the pimp’s exploitation; (12) the extent to which the pimp demanded or compelled sexual favours for himself from the prostitutes; (13) the age of the customers attracted to the services of the prostitute; (14) any steps taken by the pimp to avoid detection by the authorities; and (15) any attempts by the accused to prevent the prostitute from leaving his employ. Lesser terms of imprisonment may, however, be appropriate in cases where coercion and/or exploitation are lacking. See generally R. v. Foster (1984), 1984 ABCA 204, 13 C.C.C. (3d) 435 (Alta.C.A.), at p. 441; R. v. Glasgow, [1993] O.J. No. 1502 (Gen.Div.), at para. 3; R. v. Tang (1997), 1997 ABCA 174, 200 A.R. 70 (C.A.), at paras. 5, 11; R. v. Rose, [1997] O.J. No. 1947 (C.A.), at paras. 1, 33; R. v. Miller, at paras. 38-39; R. v. B.(K.) (2004), 184 C.C.C. (3d) 290 (Ont.C.A.), at paras. 3, 6, 77-89; R. v. Mfizi, [2008] O.J. No. 2430 (S.C.J.), at paras. 10, 14-35, 62-67; R. v. A.A., [2012] O.J. No. 6256 (S.C.J.), at paras. 32-33.

[54] This general approach to the sentencing of pimps in their parasitic exploitation of prostitutes has, not surprisingly, continued to have application under the “human trafficking” provisions of the Criminal Code. See, for example, R. v. R.R.S., 2016 ONSC 2939, at paras. 21-41, varied, 2017 ONCA 141; R. v. D.A., 2017 ONSC 3722, at paras. 15-18, 30-32; R. v. Finestone, 2017 ONCJ 22, at paras. 36, 59-68. It is important to keep in mind, however, that following upon the Supreme Court of Canada decision in Canada (Attorney General) v. Bedford, 2013 SCC 72, Parliament enacted Bill C-36 (Protection of Communities and Exploited Persons Act, S.C. 2014, c. 25), which was designed as a “significant paradigm shift” in criminal law policy regarding prostitution-related offences, from treating prostitution as a type of “nuisance,” toward treating “prostitution as a form of sexual exploitation that disproportionately and negatively impacts on women and girls.” See Technical Paper: Bill C-36, Protection of Communities and Exploited Persons Act, available online at: http://www.justice.gc.ca/eng/rp-pr/other-autre/protect/p1.html. It was in this legislation, which came into force on December 6, 2014, that Parliament introduced the mandatory minimum sentence of four years imprisonment in s. 279.01(1)(b) of the Criminal Code with respect to the offence of “human trafficking” an adult. The sentencing of pimps who commit the sexual exploitation offence of “human trafficking” must reflect this Parliamentary paradigm shift.

E. The Custodial Credits Due to the Accused

[55] The accused was arrested on or about February 15, 2016, and he has remained in custody since his arrest. Accordingly, he has already served a total of 907 days in custody. The parties agree that he should be given the enhanced credit of 1.5 days for every day he has spent in this pre-sentence custody. Accordingly, the accused should be given credit for having already served slightly in excess of 1,360 days, or nearly three years and nine months of imprisonment. See R. v. Summers, 2014 SCC 26, at paras. 7, 32-35, 68-83. The sentence that would otherwise have been imposed upon the accused will be reduced by this credit.

[56] In R. v. Duncan, 2016 ONCA 754, at para. 6, the Court of Appeal for Ontario recognized that credit in relation to pre-sentence incarceration is not “capped” at the statutory limit of 1.5 days for each day of pre-sentence custody in s. 719(3.1) of the Code, but rather may, in appropriate circumstances, include additional credit for “particularly harsh presentence incarceration conditions.” The court in Duncan observed that, in considering whether any enhanced credit should be given for such conditions, the sentencing court should “consider both the conditions of the pre-sentence incarceration and the impact of those conditions on the accused.” Further, the court suggested that where an accused has served a significant part of his or her pre-sentence incarceration in “lock down” conditions, which had an “adverse effect” on the accused, such additional credit will be appropriate.

[57] In the present case, the accused endured some 152 days of partial or full lockdown conditions, which: (1) reduced the level of privacy between the accused and his cellmates (there were sometimes three inmates to a cell when the facility was operating at capacity); (2) restricted his normal access to the shower facilities which negatively impacted upon his personal hygiene; (3) restricted his access to the telephone and his visitation rights; and (4) significantly reduced his access to physical activities in the yard. As the accused testified on the sentencing hearing, these conditions had a negative impact on him while he was detained at the East Detention Center. Indeed, they could not have failed to take a toll on his emotional and psychological well-being, and that of the other inmates subjected to these conditions.

[58] There is no simple mathematical formula that can be applied to conveniently calculate the appropriate credit for these types of harsh conditions of pre-sentence custody, which have had a negative impact upon an accused. Rather, the specific nature of the appropriate credit is left to the discretion of the sentencing court. In my view, the accused must be given at least three months additional credit for these harsh conditions. See R. v. Tello, 2018 ONSC 2259, at paras. 75-81. The sentence that would otherwise have been imposed upon the accused will also be reduced by this credit.

[59] In the result, fairly combining these custodial credits together results in a total credit of four years imprisonment. Accordingly, the custodial sentence that would otherwise have been imposed upon the accused will be reduced by this total of four years.

F. The Sentence Imposed Upon the Accused

[60] In my view, taking into account all of the circumstances of this case, and before deducting the credit of four years imprisonment to which the accused is entitled, the accused should be sentenced to a global sentence of five years imprisonment.

[61] The accused is clearly remorseful for his offences, and has done virtually all that he can, since his arrest and detention, to turn his still young life in a more positive direction, and work towards his eventual successful reintegration into society as one of its productive and contributing members, by continuing his education and hopefully eventually obtaining gainful employment, perhaps in the automotive industry.

[62] That said, his criminal offences were serious, numerous, committed over an extended period of time, and involved the violent sexual exploitation of an emotionally vulnerable young woman. Further, the accused committed these serious offences after amassing an unenviable criminal record, and he continued in their commission even after he was arrested for his “assault with a weapon” offence against the complainant. Indeed, in steadfastly continuing in his coercive exploitation of the complainant, the accused willfully obstructed the course of justice and blatantly breached two of the conditions of his recognizance.

[63] In my opinion, notwithstanding my optimistic hope for the successful rehabilitation of the accused, a five-year global term of imprisonment is the shortest term of imprisonment that is appropriate in all of the circumstances. Indeed, the somewhat longer global sentence proposed by the Crown would undoubtedly better address the important principles of denunciation and deterrence in this case. It is only my view of the accused’s excellent prospects for rehabilitation that have caused me to conclude that a five-year sentence of imprisonment is the appropriate global sentence in the circumstances.

[64] With respect to the typically recognized factors in these types of cases, my observations in relation to these important considerations are as follows:

• Degree of Coercion/Control: The complainant had worked in the sex trade as a prostitute before she met the accused, and it was admittedly her idea to go into the sex trade business in a misguided effort to continue the romantic side of their relationship. However, the accused quickly began to exploit the complainant by taking, essentially, all of her earnings from her sexual services, and he continued to exploit the complainant in this way by using a significant degree of coercion, through verbal abuse, manipulation and violent physical abuse.
• Money Received: The accused received a significant sum of money from the complainant through her sex trade work, and he permitted her to keep but a small portion of those earnings, so that she could continue to work as a prostitute on his behalf. More specifically, the complainant estimated that she paid the accused approximately $50,00 to $70,000 from her work as a prostitute over the time that the accused was her pimp.
• Age and Number of Prostitutes: The complainant, the only prostitute to work for the accused, was only 19 years of age when she first met the accused in July of 2014. The accused was two years her senior.
• Vulnerability of the Prostitute: The complainant was not a naïve young woman without street-smarts, but she was vulnerable to the exploitation by the accused because she fell in love with him and wanted to continue their romantic relationship. The accused seized advantage of that emotional vulnerability on her part.
• Working Conditions: The complainant was expected to work as a prostitute for long hours, at the direction and insistence of the accused. He was responsible for posting the internet advertisements for her sexual services, and he posted them at his own convenience, not the complainants. The accused also consistently failed to make himself available to provide the security that he had promised the complainant. Most importantly, at one point in their relationship, the accused insisted that the complainant provide unprotected sexual services that she did not wish to perform, and her compliance with this demand resulted in her contracting sexually transmitted diseases.
• Planning and Sophistication: The degree of “planning and sophistication” in the operation was commensurate with the fact that it was just a two-person business operation – the complainant performed all of the sexual services, and the accused collected all of the financial rewards that were generated by those services. However, it was not an unsophisticated operation. The accused regularly used bitcoin to post his internet ads for the complainant’s sexual services, and he arranged for the complainant to provide her sexual services in hotels.
• Number of Customers: The accused demanded that the complainant to work very hard in their business and, in 2016, he created a “quota system” that required the complainant to earn at least $1,000 each day, before she could stop providing her sexual services for the day. The complainant was clearly seeing multiple customers each day.
• Duration of the Exploitation: The accused exploited the complainant over a period of some 17 months (i.e. the indictment covered the time period from September 1, 2014 to February 13, 2016). Accordingly, the accused trafficked the complainant sexually over an extended duration of time, especially when compared to the other cases found in the relevant sentencing jurisprudence.
• Violence: Quite apart from his parasitic reliance on the complainant’s sexual services for money, the accused employed a significant degree of violence against the complainant to ensure that she continued to provide him with money. While the jury acquitted the accused of six specific allegations of assaultive conduct, the jury also found the accused guilty of assaulting the complainant with a weapon, threatening her with death, one specific incident of assault (i.e. the assault in the motor vehicle as they drove on the 407 highway), and one general allegation of assault.
• Drugs or Alcohol: There is no evidence in the present case that drugs or alcohol were employed by the accused as inducements to the complainant to engage in the sex trade.
• Victim Impact: As I have already indicated, in her victim impact statement, the complainant described how the accused had “preyed” upon her and had used fear and love to trap her in a “toxic relationship.” The complainant claimed that the accused had changed her life irreparably in that she will always be scared in the future and can no longer be involved in a normal relationship. The complainant did note, however, that the accused had helped her grow as a person.
• Personal Sexual Favours: The complainant and the accused were engaged in a romantic relationship at the same time as they were engaged in the sex trade business, but there is no evidence that the accused had to demand, compel, or otherwise extract personal sexual favours from the complainant.
• Age of the Customers: The evidence did not address the particular age of the clientele that were generally involved in purchasing the complainant’s sexual services.
• Avoiding the Authorities: After the accused was arrested for his May 3, 2015 “assault with a weapon” offence on the complainant, the accused willfully attempted to obstruct the course of justice in those proceedings to prevent his conviction. After this offence, the accused also avoided his security duties toward protecting the complainant while she was sexually servicing her customers, by telling her that he did not want to get in trouble with the police by being in close physical proximity to her. Significantly, in June of 2015, when the complainant threatened to report the accused to the police for violating the conditions of his recognizance, the accused threatened to kill her.
• Preventing the Complainant from Leaving: The complainant threatened to leave the accused many times during the course of their relationship, and sometimes the accused invited her to do so. There was one occasion, however, in January of 2015, when the complainant told him that she was “done” with their relationship. In response, the accused told her that “no one leaves him” and that, if she wanted to leave, she had to pay him an “exit fee.”

[65] As I have indicated, in my view, in all of the circumstances of this case, the appropriate global sentence in this case is five years imprisonment. However, once the accused is given the appropriate credit, of four years imprisonment, for the duration of his pre-sentence detention and the harsh conditions he experienced during some of this time in detention, that leaves one further year of imprisonment to be served by the accused. Accordingly, the accused is now sentenced to a one-year term of imprisonment on each count of the two indictments on which the accused has been convicted. These sentences shall be served concurrently.

G. Ancillary Sentencing Orders

[66] In addition, as the parties have agreed, the following ancillary sentencing orders are appropriate in the circumstances of this case.

[67] First, as the accused has been found guilty of a number of “primary designated offences,” and a number of “secondary designated offences,” pursuant to s. 487.051 of the Criminal Code, I order the taking of bodily substances from the accused for forensic DNA analysis. To the extent such an order may not be mandatory, I am satisfied that, having regard to all of the circumstances of this case, including the gravity of the offences committed by the accused, the criminal record possessed by the accused, and the minimal impact the order will have on the privacy and security interests of the accused, that the order should be made, as it is in the best interests of the administration of justice. Further, I am not at all convinced that such an order would be in any way disproportionate to the public interest in the protection of society and the proper administration of justice.

[68] Second, pursuant to ss. 109(1)(a), 109(1)(a.1)(i), and 109(3) of the Criminal Code, I order that the accused be prohibited: (1) from the possession of any firearm (other than a prohibited or restricted firearm), cross-bow, restricted weapon, ammunition, and explosive substance, for a period of ten years after the accused is released from his term of imprisonment; and (2) from the possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.

[69] Third, pursuant to s. 743.21 of the Criminal Code, I order that the accused shall be prohibited from communicating, directly or indirectly, with the complainant during his period of imprisonment.

[70] Fourth, I order that the accused pay a victim surcharge in the total amount of $2,000 pursuant to s. 737(2)(b)(ii) of the Criminal Code (i.e. $200 for each of the 10 offences for which he has been convicted). See R. v. Tinker, 2017 ONCA 552.

H. The Probation Order

[71] When the accused is released from this one-year term of imprisonment, he will be subject to the terms of a probation order for a period of three years. In my view, such an order is in the best rehabilitative interests of the accused as it will provide him with continued guidance and supervision following the conclusion of his sentence of imprisonment. Indeed, the accused personally sought the imposition of this period of probation.

[77] As part of this probation order, the accused shall be subject to all of the following statutory conditions prescribed by s. 732.1(2) of the Code, namely, that the accused shall (a) keep the peace and be of good behaviour; (b) abstain from any communication, direct or indirect, with the complainant; (c) appear before the court when required to do so by the court; and (d) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.

[73] As part of this probation order, the accused shall also be subject to all of the following additional conditions pursuant to s. 732.1(3) of the Code, namely, that the accused shall:

• Report to a probation officer within two working days of his release from his period of imprisonment, and thereafter at least once a month, when required by the probation officer and in the manner directed by the probation officer;
• Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;
• Abstain from the possession and consumption of drugs except in accordance with a medical prescription, and abstain from the consumption of alcoholic beverages or any other intoxicating substances;
• Abstain from owning, possessing or carrying a weapon;
• Perform 180 hours of community service over a period not exceeding 18 months, at a rate of not less than ten hours per month;
• Participate actively in the Salvation Army program for men, to help control and manage their anger in intimate relationships, and provide his probation officer, upon request, with written proof of his compliance with this condition.

I. Conclusion

[74] In the result, the findings of guilt by the jury in relation to counts three and five of the long 17-count indictment are conditionally stayed as a result of the rule against multiple convictions for the same offence. Further, in an effort to impose an effective global sentence of five years imprisonment, after giving the accused the appropriate custodial credit of having already effectively served a four-year term of imprisonment, the accused is now sentenced to a one-year term of imprisonment on all of the remaining counts on both of the indictments for the offences which the accused has been found guilty and convicted. All of these one-year terms of imprisonment shall run concurrently. After serving that one-year term of imprisonment, the accused shall be subject to a three-year term of probation, on the specific terms that have been outlined. The accused will also be subject to all of the various ancillary sentencing orders that have been made.

Released: August 8, 2018 Kenneth L. Campbell J.