Court File and Parties
COURT FILE NO.: CR-17-0297-00 DATE: 2018 08 22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN K. Holmes, counsel for the Crown
- and -
ROMARIO BRISSETT and DEVAR FRANCIS A. Alawi, counsel for Romario Brissett G. Holder, counsel for Devar Francis at trial E. Willschick, counsel for Devar Francis at sentencing
HEARD: July 13, 2018
REASONS FOR SENTENCE
LEMAY J.
1After a three week trial before a jury, including time to address some mid-trial issues that arose, the Offenders were both convicted of one count of living off the avails of juvenile prostitution under section 212(2) of the Criminal Code, as well as one count of exercising control, direction or influence over the movements of the victim to aid, abet or compel her to engage in or carry on prostitution. Mr. Brissett was acquitted of a third charge, the offence of procuring the victim to become a prostitute.
2The Crown is seeking a sentence of 2.5 years on the first charge, to be served concurrently with a five year sentence on the second charge. The Crown seeks this sentence for both offenders.
3The first offender, Mr. Brissett, is seeking a five month sentence on each count, to be served consecutively.
4The second offender, Mr. Francis, is also seeking five months on each count, to be served consecutively. Alternatively, Mr. Francis is seeking time served. He has been incarcerated since August of 2016. The parties are in agreement that, as of today’s date, Mr. Francis has been in jail for 722 days. The parties are also in agreement that Mr. Francis is entitled to 1.5 days of credit for each date that he has been in pre-sentence custody, which entitles him to credit for 1,083 days of time served.
The Facts
5The jury did not make findings of fact. However, the Supreme Court of Canada’s decision in R. v. Ferguson (2008 SCC 6) provides guidance to trial judges as to their role in making findings of fact on a sentencing hearing. These principles are also codified in section 724(3) of the Criminal Code.
6Based on the principles in Ferguson, I am only required to make those factual determinations necessary to decide the appropriate sentence. In making those findings, I am bound to the implications of the jury’s verdict, but I am not expected to follow the jury’s logical processes. Instead, I must come to my own independent determination of the facts. What follows is that determination.
7Mr. Brissett met M.D., who I will refer to as the victim throughout these reasons, when they were both in high school in Peel Region. Mr. Brissett was aware of the victim’s age, both when he met her, and when he committed the offences.
8Mr. Brissett and the victim had an intimate relationship that was on and off over the course of a year or two. This relationship ended in March of 2014 when the victim began to date someone else.
9In early 2014, the victim met G.P, and through him his sister, K.P. She spent some time living with K.P, who is a prostitute. The victim testified that she lived with K.P., and also travelled with K.P. to hotels where K.P. was working as a prostitute.
10The victim testified that she did not work as a prostitute, but that she told Mr. Brissett that she was working as a prostitute. This testimony is one explanation for why the jury acquitted Mr. Brissett of the third charge. Another explanation is, as was suggested by the defence, the victim was in fact working as a prostitute with K.P. It is not clear to me which of these explanations led the jury to conclude that they had reasonable doubt as to Mr. Brissett’s guilt on the last charge and I do not need to resolve that question.
11In terms of the facts that I do have to find, it is clear to me that, at a minimum, the victim had been exposed to the lifestyle and work of a prostitute before the events giving rise to these convictions. It is also clear to me that Mr. Brissett believed that the victim had worked as a prostitute prior to the events giving rise to these convictions.
12During the spring of 2014, the victim had difficulties in her relationship with her father. She testified that she had run away from home in this time period, and was living with K.P. There was some discussion between K.P. and the victim about K.P. becoming the victim’s legal guardian.
13The victim then went to Haiti in June of 2014, and returned at the end of August of 2014. When she returned from Haiti, the victim went to Toronto and lived with her step-mother, who is separated from her father. She lived with her step-mother for a couple of weeks, and then went to live with a friend for a further couple of weeks. Then, she returned to live with K.P. for a further couple of weeks until K.P. threw her out of the house after they had a fight.
14When K.P. threw the victim out of her house, she turned to Mr. Brissett. He arranged for the victim to stay in a basement apartment with a friend of his for approximately a week. Mr. Brissett stayed with the victim in this basement apartment during this time period, and they had sexual intercourse on a number of occasions. Mr. Brissett brought the victim food to eat, which was McDonalds on most days.
15Mr. Francis was on the other couch in the basement for most of the days. Mr. Francis provided evidence, through a videotaped statement to police that was played for the jury, that he had only met the victim once and had not been in this apartment. However, a necessary implication of the jury’s verdicts is that they rejected this evidence, as well as other portions of Mr. Francis’s evidence. I reach the same conclusions as the jury must have with respect to this statement.
16At the end of the week, Mr. Brissett told the victim that she was going to have to pay him back the money that he had spent on her, and that working as a prostitute would be a way to earn that income.
17Mr. Brissett and Mr. Francis had some friends, none of whom were indicted, interviewed or called by the Crown as witnesses, who helped them organize the victim’s work as a prostitute. They took the victim to Suzy Shier to obtain clothing for her, as well as obtaining underwear for her.
18An advertisement was placed on a website called Backpage outlining the services that the victim provided. This advertisement was placed by Mr. Francis. A hotel room was booked at a hotel in Mississauga. The victim was then told by Mr. Brissett, Mr. Francis and Mr. Francis’s girlfriend how to present herself to prospective customers.
19Mr. Brissett and the victim had agreed to split the proceeds from the victim’s work as a prostitute on a 50/50 basis, but other people wanted some of the proceeds. In addition, there were the costs associated with the prostitution operation, including the hotel and the food that were paid out of the money that was earned.
20The victim engaged in prostitution for approximately a week. During that time, she had unprotected intercourse with a number of clients. The rates for the sexual acts that she performed were discussed between Mr. Brissett and the victim. The victim would set the rates for some clients, and provided a couple of repeat clients with a discount.
21Once the victim had completed servicing her clients, the money was left in a drawer in the hotel room, and Mr. Brissett took the money.
22The victim was in the hotel room for approximately seven days. During that time she had a couple of repeat clients, as well as one client that caused significant pain to her. He was a client who was, according to testimony, “well endowed”. The victim’s interactions with this client caused her significant pain, but Mr. Brissett had told her to just lie back and let him bust her.
23The victim was in the hotel room for approximately a week. On the evidence I heard, less than $750.00 was earned from her work as a prostitute during this time period. On some of the nights when she did not have a guest, Mr. Brissett stayed in the hotel room with her.
24Mr. Francis’s role was to book the hotel room and to place the advertisement on Backpage. He was not as directly involved in setting the rates or in directing the victim in what she was to do as part of her work as a prostitute. The phone number used in the Backpage ad was for a telephone that was registered to Mr. Brissett.
25The victim ultimately managed to leave the control of Mr. Brissett and Mr. Francis when they went out for food one evening. She escaped and called a friend to come and help her. The charges in this case were ultimately laid as a result of the Peel Police’s investigation.
The Offenders
a) Mr. Romeo Brissett
26Mr. Brissett is currently 21 years old. He was eighteen at the time that the offences were committed. He emigrated to Canada in 2008 from Jamaica, and is currently a permanent resident in Canada. His parents live together in Brampton. His mother works in healthcare, and his father is employed full-time.
27Mr. Brissett has two elder half-sisters, as well as two full biological younger brothers. Prior to these charges, he was living with a girlfriend, who is also the mother of his child. Since the charges were laid, he has moved home with his parents, who are his sureties. Mr. Brissett advised that he is active in caring for his daughter, who is currently four years old.
28Currently, Mr. Brissett attends church on a regular basis, and his pastor was interviewed for the pre-sentence report.
29Mr. Brissett has not yet completed grade 12. He was unable to return to school after these charges were laid because the victim attended at the same school. He is interested in pursuing a program in architecture or business. Mr. Brissett is not currently employed, but has worked as a landscaper and in various general labour positions. He had held a position as a general labourer for three years.
30In the course of his interview for the pre-sentence report, Mr. Brissett confirmed that he had a good family life, and that his mother in particular was a source of support. He also confirmed that he had not been subject to (or witness to) any abuse, that he had been brought up “really well, with a supportive family” and that he did not think that he had lacked for anything in his life. Mr. Brissett does not have any issues with substance abuse.
31Mr. Brissett was given the opportunity to address the Court at the end of the argument on sentencing. He did not acknowledge committing the offence. However, he did state that he felt badly for what the victim had been through in this case.
b) Mr. Devar Francis
32Mr. Francis was born in Jamaica, and is a permanent resident of Canada. He immigrated to Canada in 2008 with his sister and his father. They were all sponsored as immigrants by his step-mother. When Mr. Francis left Jamaica, his biological mother remained behind.
33Mr. Francis had a normal childhood, but when he was in Jamaica, he lived in an impoverished neighborhood, and that this played a significant role in his upbringing. He stated that, as a result, his assimilation into Canadian society was difficult, but that his father had desired for him and his sister to have a better life in Canada. His father has always worked as a barber, and has maintained this employment continuously in Canada.
34Mr. Francis described a good relationship with his father, his sister, his step-mother and her children. His sister described the relationship with Mr. Francis’s step-mother as being more tense and negative than Mr. Francis described it. Based on the entirety of the pre-sentence report, it appears that the negativity that Mr. Francis’s sister referred to flowed in part from the fact that Mr. Francis’s step-mother had “strict” rules that he was required to follow.
35In any event, it appears that Mr. Francis had a happy and supportive childhood once he moved to Canada. His step-mother described him as a “good child” who was polite and reliable. Mr. Francis’s step-mother and father ended their relationship in 2014, although Mr. Francis continues to have a good relationship with his step-mother and at least one of her two children.
36Mr. Francis has a five year old daughter who lives with her mother in Montreal. Mr. Francis has some contact with his daughter, but the extent of that contact is not clear. Mr. Francis ended the relationship with the mother of his child when his child was four months old. He is currently in a relationship with the same girlfriend that he had at the time of the offences.
37Mr. Francis has completed Grade 11, and reports requiring two credits to complete Grade 12. He did not complete Grade 12 because of excessive absences from school.
38Mr. Francis has been regularly employed in a number of different occupations, including in shipping and receiving and working in retail. He has a career goal of learning a trade in auto mechanics.
39At the end of the sentencing hearing, Mr. Francis took the opportunity to address the Court. He did not acknowledge committing the offence, but did express that he was sorry that the victim had suffered. He also thanked the Court for its attention and patience.
The Victim
40The victim was born in Haiti, and came to Canada with her father, two stepbrothers and a stepsister when she was approximately eight years old. Her mother continues to live in Haiti.
41As set out above, the victim has had a difficult relationship with her father, and she has had limited contact with her mother for quite some time. In the course of testimony, the victim acknowledged some drug use.
42It is clear that the victim has lived through some very difficult circumstances. It is also clear that she has been affected by these offences. She has stated that being the victim of these offences has made her sad, and it has affected her relationship with her family. She has also stated that it has negatively affected her schooling and her relationship with her peers, some of whom know about what has happened.
The Fit and Proper Sentence
43In arguing over the fit and proper sentence in this case, each counsel made arguments that must be specifically addressed. Crown Counsel argued that I should be guided by the new minimum sentence that came into effect for these types of offences approximately a month after the events giving rise to these charges took place.
44Counsel for Mr. Brissett argued that I should take the fact that Mr. Brissett is black into account in sentencing him. To this point, counsel directed my attention to the decision of Nakatsuru J. in R. v. Jackson (2018 ONSC 2527).
45In addition, counsel for Mr. Brissett argued that I should impose the sentence of five months consecutive on each offence because Mr. Brissett is not a citizen, and could be subject to deportation at the end of his sentence if it was six months or longer.
46Counsel for Mr. Francis adopted both of the arguments advanced by counsel for Mr. Brissett. In the alternative, counsel for Mr. Francis was seeking a sentence of time served.
47I will address each of these arguments in turn. I will then review the case-law relating to these offences, and outline the fit and proper sentence for each of the offenders.
a) The New Mandatory Minimums
48In December of 2014, the Protecting Communities and Exploited Persons Act (Bill C-36) came into effect. It changed a number of Criminal Code provisions, including those relating to exercising control and direction over a minor to influence them to engage in prostitution. One of the key changes is that the new offence under section 212 (h) is now found in section 286.3(2), and carries a mandatory minimum of five years.
49Crown counsel argues that I should be guided by this mandatory minimum in deciding what a fit and proper sentence is. In her submission, Crown counsel states that these are very insidious offences, as the people who commit them prey on the weaknesses and vulnerabilities of others.
50Crown counsel also argues that I should be guided by the five year mandatory minimum for these sentences because of the fact that these are repugnant offences with a misogynistic undertone. Crown counsel also points out that there are no trivial juvenile prostitution offences.
51I start by agreeing with Crown Counsel’s last submission, that there are no trivial juvenile prostitution offences. However, that does not necessarily mean that a mandatory minimum of five years for these offences is required, or would survive constitutional scrutiny under section 12 of the Charter. It might mean that some mandatory minimum might survive constitutional scrutiny.
52However, determining that question is not something that is before me. The mandatory minimums that Crown counsel points to were not in effect when these offences took place. Section 11(i) of the Charter clearly states that, where the punishment for the offence has been varied between the time that the offence was committed and the time of sentencing, then the Offender is entitled to the benefit of the lower sentence.
53As a result, I am left with the sentencing regime that existed at the time- which, given other decisions of the Courts, does not contain any mandatory minimums. I reject Crown counsel’s submission that I should be guided by this sentencing provision that was not yet in effect. It produces a higher sentence than that which was available (or would have been imposed) prior to the changes in the law. The Crown’s argument on this point fails.
b) The Offenders’ Race
54Both Counsel for the Offenders argue that I should take judicial notice of the racism and discrimination that African-Canadians have historically suffered, as well as the effect of this discrimination on the Offenders, in crafting the appropriate sentence. In support of this position, counsel relies on R. v. Jackson (2018 ONSC 2527).
55In Jackson, the sentencing judge determined that African-Canadians have been subject to systemic discrimination. Included in this finding were conclusions that Canada disproportionately incarcerates African-Canadians, that they suffer systemic discrimination while in custody, and that African-Canadians continue to have poorer outcomes than other inmates on many important correctional indicators.
56The sentencing Judge in Jackson stated that he would not simply apply the approach adopted in sentencing Aboriginal offenders as set out in R. v. Gladue (1999 SCC 679), [1999] 1 S.C.R. 688 to African-Canadian offenders. However, he determined that judges should take judicial notice of the systemic injustices committed against African-Canadians, and should ensure that the Judge obtains additional information about the offender under section 723 of the Criminal Code. Then, the sentencing judge in Jackson states that this information should be applied to give context to the sentencing of an African-Canadian offender.
57I have considered all of the points raised in Jackson in some detail. However, I am not prepared to apply the reasoning in Jackson to this case for two reasons.
58First, I do not agree with the sentencing Judge in Jackson that R. v. Hamilton (2004 ONCA 5549), 72 O.R. (3d) 1 (C.A.) is either distinguishable or, on even a liberal reading, permits a Court to take judicial notice of systemic racism and then automatically consider it in individual cases.
59Some background on the facts underlying Hamilton is important to understand the reasons for my conclusion. The offenders in Hamilton were sentenced by the trial judge for the importation of cocaine. As part of determining the fit and proper sentence, the sentencing Judge conducted a lengthy inquiry into a variety of issues. As part of that process, he concluded, inter alia, that the Offenders he was sentencing were the victims of systemic racial and gender bias, which contributed to their impoverishment and made them more vulnerable to be recruited as couriers for the cocaine trade. As a result of these (and other) considerations, the trial judge determined that a conditional sentence was appropriate (see paragraphs 26-32 of Hamilton).
60Doherty J.A., for the Court of Appeal, rejected this approach. At paragraph 133, he stated:
133The fact that an offender is a member of a group that has historically been subject to systemic racial and gender bias does not in and of itself justify any mitigation of sentence. Lower sentences predicated on nothing more than membership in a disadvantaged group further neither the principles of sentencing, nor the goals of equality.
61As a result, it is not open to a Judge to determine that systemic racial or gender bias justifies mitigation of a sentence without more specific information about the individual offender. None of that information is present in this case. Indeed, when I asked defence counsel in argument whether there were any specific points in the pre-sentence report that would tend to show any connection between the history of discrimination suffered by African-Canadians and the circumstances of the Offenders or the Offence, they acknowledged that there was nothing specific in the materials before me.
62The closest the evidence before me comes to showing systemic racial or gender bias is with respect to Mr. Francis’s difficulties in integrating into Canada. However, when the pre-sentence report is read in its entirety, it appears that these difficulties were as a result of Mr. Francis’s adjusting to learning English. There is no mention that these difficulties were related to any systemic racial or gender bias.
63Second, in Jackson, the sentencing judge relies on the recognition of systemic racism in a number of decisions relating to issues such as strip searches, racial profiling, arbitrary detentions and jury selection (see paragraph 87). The concerns with both bias in jury selection and potential bias in jury membership, in particular, are well known to trial judges.
64However, all of these different areas where systemic racism has been identified, and found to be relevant, deal with an accused person’s interaction with the justice system and how that justice system treats the accused. Recognizing and ameliorating systemic racism in those types of cases is vital for two reasons. First, it ensures that the law moves towards treating all Canadians equally. Second, it ensures that accused persons are not wrongfully convicted based on pernicious racial stereotypes.
65Sentencing, however, is another matter. It is based on the individual circumstances of the individual offender. Systemic racism is only relevant on sentencing to the extent that there is a connection between the systemic racism that an individual has experienced and the commission of the crime or their own personal circumstances. That connection must be, in the words of Doherty J.A., “direct”. The sentencing Judge in Jackson acknowledges this, but goes on to say (at paragraphs 111 and 112):
111Another point I wish to address deals with the link that needs to be shown between the systemic and background factors and the specific circumstances of the offender. I acknowledge that a connection must be demonstrated between the institutional racial inequality in general and the circumstances of the African Canadian person who is being sentenced. I appreciate in Hamilton that Doherty J.A. commented that the evidence of difficult socio-economic circumstances of the offender had to be a “direct” result of systemic racial and gender bias. However, I do not interpret that as a rigid requirement that the offender show a direct causal connection. Seldom can such a direct causal connection ever be proven, in life or in law. It should not be required in sentencing where the balancing of numerous, often competing factors, is more an art than a science. Such an approach has been rejected in the Gladue analysis. Most recently the Court of Appeal in R. v. F.L., 2018 ONCA 83, [2018] O.J. No. 482, at para. 46 agreed with the following quote from the Saskatchewan Court of Appeal:
The link between systemic or background factors and moral culpability for an offence does not require a detailed chain of causative reasoning. Instead, the analysis is based on inferences drawn from the evidence based on the wisdom and experience of the sentencing judge ... In applying this approach, sentencing courts must pay careful attention to the complex harms that colonisation and discrimination have inflicted on Aboriginal peoples.
112Similarly, I find it makes little sense to require such a direct causal connection for African Canadians. Indeed, I would go as far as to say such a requirement would simply impose a systemic barrier that would only perpetuate inequality for African Canadians.
66There are three problems with this passage. First, it appears to conflate the Gladue analysis with the analysis that should be undertaken with African-Canadian offenders (or others who have experienced discrimination) by referencing and relying on the decision in R. v. F.L. (2018 ONCA 83), which clearly focuses on Aboriginal offenders. Aboriginal offenders are subject to a unique sentencing regime in Canada, in part because of the fact that their own history has different approaches to sentencing than the English common-law that generally governs sentences in Canada. In the words of Doherty J.A. in Hamilton, supra (at paragraph 99):
99Parliament has chosen to identify aboriginals as a group with respect to whom the restraint principle applies with particular force. If it is shown that the historical mistreatment and cultural views of another group combine to make imprisonment ineffective in achieving the goals of sentencing, it has been suggested that a court may consider those factors in applying the restraint principle in sentencing individuals from that group: see R. v. Borde, supra, at pp. 427-28 O.R., p. 236 C.C.C. There was no evidence in the mass of material adduced in these proceedings to suggest that poor black women share a cultural perspective with respect to punishment that is akin to the aboriginal perspective.
67Second, even in the context of Aboriginal offenders, the Court in F.L. points out that some connection is required between the systemic and background factors and the offence, or the circumstances of the offender, before these systemic and or background factors will affect the sentence (see paragraph 40-42). Similarly, in R. v. Ipeelee (2012 SCC 13) at paragraph 83, “unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence.”
68Finally, this approach in Jackson does not give weight to one of the key comments that Doherty J.A. made in Hamilton, where he stated (at paragraph 140):
Even where the crime committed is very serious, however, factors going to personal culpability for the crime must still be considered. For the reasons outlined above, the circumstances which led the respondents to commit these crimes entitle them to some mitigation. It must, however, be stressed that consideration of the circumstances which led an offender to commit a crime is only part of the overall assessment that must be made in determining personal culpability for the purposes of imposing a sentence which complies with the proportionality principle. Our criminal law rejects a determinist theory of crime. The respondents had a choice to make and they made that choice knowing full well the harm that the choice could cause to the community. The economic circumstances of the respondents made their choice more understandable than it would have been in other circumstances, but it remains an informed choice to commit a very serious crime. The blunt fact is that a wide variety of societal ills -- including, in some cases, racial and gender bias -- are part of the causal soup that leads some individuals to commit crimes. If those ills are given prominence in assessing personal culpability, an individual's responsibility for his or her own actions will be lost.
69As I understand Doherty J.A.’s comments in Hamilton, there is a risk that an overemphasis on societal ills will result in an individual’s personal culpability being lost. As a result, in my view a sentencing Judge must be aware of two key pitfalls in assessing and applying societal context evidence. First, the Judge must not automatically assume that societal ills, such as discrimination, contributed to the fact that the offender committed the crime. Even if the evidence does not have to be clear, there must be some link between the discrimination or other societal ill and the offender (or the offence). Second, the judge must ensure that those societal ills, even if they are relevant, do not overwhelm the other factors. As Durno J. observed in R. v. G.B., [2003] O.J. No. 3218 (S.C.J.) at paragraph 45: “the relevant factors in one person’s background will be case specific. A single factor will rarely be determinative.”
70In this case, there is no evidence that any of the pernicious racial discrimination and/or stereotyping that exist in society had any effect on either the offenders or on the offence in this case. As a result, I am bound to apply the Court of Appeal’s decision in Hamilton, and I decline to apply the reasoning in Jackson to this case.
71As a final matter, I should address one of the observations that seems to flow from the reasons of the sentencing Judge in Jackson. As I read his reasons, he seems to be suggesting that there is an obligation on trial judges to obtain information about the circumstances of African-Canadian offenders in order to consider whether their personal circumstances and/or their offences are related to any systemic racism (see paragraph 99 and 100 of Jackson, supra). While that obligation may very well exist in some cases, it has been satisfied in this case. A pre-sentence report was prepared, and it provided no significant indications of any issues. In addition, as I have mentioned elsewhere in these reasons, when asked neither counsel was able to point to any evidence to support an allegation that systemic discrimination had played any role in the commission of the offence.
72In the circumstances, I decline to apply the reasoning in Jackson to this case.
c) The Immigration Consequences
73The Offenders argue that I should take the immigration consequences for these offences into account in fashioning a fit and proper sentence. As a result, they argue that the sentences should be five months for each charge, to run consecutively. For the reasons that follow, I reject this approach.
74My analysis starts with the Supreme Court’s decision in R. v. Pham (2013 SCC 15). In that decision, the Supreme Court stated that the sentencing judge can take the collateral immigration consequences into account as long as the sentence that is imposed is proportionate.
75When the case law is considered, it is clear that a sentence of five months for each of these offences would not be proportionate to the crimes that the Offenders were convicted of. A consideration of two cases will illustrate why I come to this conclusion.
76The first decision is R v. N.A. (2017 ONCJ 665). In that decision, the Court was required to sentence an offender who was convicted of human trafficking, receiving a material benefit relating to human trafficking, and assault. In that case, Monahan J. determined that the offences, while serious, were on the lower end of the scale as far as these types of offences as it did not involve prostitution, the offender was a first time offender and had a significant potential for rehabilitation. In addition, the victim in N.A. was an adult. It is also worth noting that, although the offences in N.A. were not prostitution related, Monahan J. noted (at paragraph 31) that the factors considered in the prostitution cases were relevant in the human trafficking cases as well.
77In N.A., Monahan J. issued an eighteen (18) month custodial sentence. When the facts in N.A. are considered, it is clear that the offences were less serious than the ones in this case. Critical to my conclusion on this point is that the offences in this case involved the prostitution of someone who was under eighteen years of age. If eighteen months was appropriate in N.A. where the victim was an adult, then something longer must be appropriate in this case.
78The second decision is R. v. Robitaille (2017 ONCJ 768), a decision provided to me by the Crown. In that decision, Greene J. was faced with a sex trade worker whose pimp, a Mr. Finestone, had been engaged in human trafficking of two minors. Mr. Finestone pled guilty to one count of human trafficking. Ms. Robitaille had also pled guilty to two counts of receiving a material benefit from the sexual services of two minors.
79Ms. Robitaille herself had been a prostitute, had substance abuse problems, and was not much older than eighteen when she was charged. In addition to her guilty plea, these were both significant factors that supported a sentence at the very low end of the range. Ms. Robitaille was given eight (8) months. In light of all of the mitigating factors in her case, her sentence is significantly lower than anything that could be granted in this case.
80In both N.A. and Robitaille, the fit and proper sentence was considerably lower than what is justified on the facts of this case. In the circumstances, a ten month sentence for these two charges is nowhere close to the fit and proper sentence, and I am not prepared to impose such a short sentence on the facts of this case.
d) The Relevant Statutory Provisions
81There are a number of statutory provisions that provide direction and guidance to me in determining what the fit and proper sentence is in this case. Section 718 of the Criminal Code sets out the various objectives of sentencing. However, this is a case where the offences involve the abuse of a person under the age of eighteen. As a result, section 718.01 governs, and I am required to give primary consideration to the objectives of denunciation and deterrence.
82Similarly, section 718.2 deems that the fact that the offence involved the abuse of a person under the age of eighteen is an aggravating factor, in spite of the fact that this is an essential element of the offence.
83Finally, given the nature of the offence, there are a number of ancillary Orders that must be made, and I will return to those when I impose the sentence on each of the offenders.
e) The Relevant Case-Law
84I have already outlined the N.A. and Robitaille decisions. These cases set out sentences that are below the minimum sentence that would be appropriate for either offender in this case. As a result, I must consider a sentence that is beyond the upper reformatory range. In the case of both offenders, the fit and proper sentence is one that entails time in the penitentiary.
85None of the Counsel provided me with much in the way of case-law on the issue of what a fit and proper sentence would be in this case. The most helpful decision is the reasons of Leach J. in R. v. Alexis-McLymont (2018 ONSC 1152). In that decision, Leach J. sets out a number of principles relating to sentencing for these types of cases. He also reviews a number of the other significant cases.
86Alexis-McLymont involved the sentencing of two offenders (Mr. Alexis-McLymont and Mr. Hird) who had recruited a young woman who suffered from an addiction to crystal meth to work as a prostitute. They kept her captive in a hotel, earned significant money from her services, threatened her life and continued to ply her with crystal meth to keep her under control.
87This offence was committed as part of what Mr. Alexis-McLymont described as the “cash gang”, and the offenders made a number of very misogynistic comments in the course of their discussions and recruitment. Mr. Alexis-McLymont was actively involved in the recruitment of the victim, the provision of crystal methamphetamine to her, and the transportation of her to the hotel. However, he was not involved in the threats that kept her at the hotel, or in the advertising of her services. He was sentenced to six years.
88It must be remembered that Alexis-McLymont was decided after the mandatory minimum of five years came into effect. Leach J. was not asked to consider the constitutionality of that mandatory minimum sentence. Instead, he determined that Mr. Alexis-McLymont did not fit the profile of someone who should receive the minimum sentence, and he imposed six years.
89In R. v. Byron (2014 ONSC 990), [2014 O.J. No. 723 (S.C.J.), one of the cases cited by Leach J., the Court was faced with an offender who had lured his victim, who was under eighteen and very vulnerable, from Windsor to Montreal with the promise of romance. In Byron, the victim engaged in sexual acts with over 100 different men, and was subject to violence and threats of violence in order to make her comply. This abuse went on for a period of two months. The offender was sentenced to a total of six (6) years’ incarceration.
90Then, there is the decision in R. v. Johnson (2017 ONSC 3995). In that decision, the Court was faced with some similar facts, including the fact that some of the victims were underage. However, Johnson also involved a much longer period of time over which the offences were committed, as well as involving multiple victims. The offender in that case was given five years on the prostitution related offences.
91In each of these cases, the offences were more serious than what I have before me. As a result, the sentences in those cases should be higher than the sentences that I should impose in this case.
92Finally, there is the decision in R. v. Tang (1997 ABCA 174), [1997] A.J. No. 460 (C.A.), which was referenced by counsel for the offenders. In that decision, the Alberta Court of Appeal set out a number of factors that should be considered in determining what the appropriate sentence is. I have considered that decision as well.
f) The Fit and Proper Sentence for Mr. Brissett
93In Mr. Brissett’s case, the aggravating factors are as follows:
a) The age of the victim. This is a prostitution offence, and the victim was under the age of eighteen. b) The vulnerability of the victim. She had been in a relationship with Mr. Brissett at some point, and was preyed upon by Mr. Brissett when she sought his help when she had nowhere to live.
94The mitigating factors are as follows:
a) Mr. Brissett is a youthful first-time offender. b) Mr. Brissett has a supportive family.
95After weighing all of these factors, and considering the relevant case-law, I am of the view that a sentence of four (4) years incarceration is the appropriate sentence for Mr. Brissett.
96In addition, I impose the following mandatory Orders:
a) A DNA Order under section 487.051 of the Criminal Code. b) A SOIRA order under section 490.012 of the Criminal Code, with such Order to end 20 years after it is made pursuant to section 490.013(2). c) An Order under section 743.21 of the Criminal Code prohibiting the Offender from communicating with the victim during his incarceration.
i) The Fit and Proper Sentence for Mr. Francis
97Counsel for Mr. Francis argues that his client was not ever romantically involved with the victim and that he was less involved in the exercise of control, direction or influence over the victim. I agree with this submission.
98As I have noted above, other than Mr. Francis’s lower level of involvement, the mitigating and aggravating factors in this case are similar as between the two Offenders. The remainder of the lists of factors would also apply here.
99Balancing all of these factors together with the case law, I am of the view that a sentence of three years is appropriate for Mr. Francis. This is the equivalent of 1,095 days in custody. Mr. Francis is entitled to a credit of 1,083 days of pre-sentence custody. As a result, he will serve a further 12 days in jail.
100In addition, I impose the following mandatory Orders:
a) A DNA Order under section 487.051 of the Criminal Code. b) A SOIRA order under section 490.012 of the Criminal Code, with such Order to end 20 years after it is made pursuant to section 490.013(2). c) An Order under section 743.21 of the Criminal Code prohibiting the Offender from communicating with the victim during his incarceration.
LEMAY J.