COURT FILE NO. 14315/16

DATE: 20181005

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

• and -

Deshon Tarone Boodhoo, Kemoy Clayton Chisholm, and Keon Anfernee Chisholm

Heather Cook and Samantha Herbert, for the Crown

Monte MacGregor, for Deshon Boodhoo

Joanne Griffiths, for Kemoy Chisholm

Hilary Dudding, for Keon Chisholm

Heard: August 29, 2018

Bale J.:

Overview

[1] Deshon Boodhoo, Kemoy Chisholm, and Keon Chisholm were convicted by a jury under s. 286.3(2) of the Criminal Code of, for the purpose of facilitating an offence under s. 286.1(2), exercising control, direction or influence over the movements of a person under the age of 18 years who offers, or provides, sexual services for consideration. This offence is referred to as “procuring a person under the age of eighteen years”. The offence referred to under s. 286.1(2) is the offence of obtaining sexual services for consideration.

[2] The three offenders were also convicted under s. 286.2(2) of the Code of receiving a financial or other material benefit, knowing that it was obtained by, or derived directly or indirectly from, the commission of an offence under s. 286.1(2).

[3] Deshon Boodhoo and Keon Chisholm were convicted under s. 163.1(3) of distributing child pornography, or possessing child pornography for the purpose of distribution, and under s. 286.4 of advertising an offer to provide sexual services for consideration.

[4] The three were acquitted of the offence under s. 279.011(1) of exercising control over the movements of a person under the age of 18 years, for the purpose of exploiting her, or facilitating her exploitation. This offence is referred to as trafficking of a person under the age of eighteen years. They were acquitted of the offence under s. 279.02(2) of receiving a financial or other material benefit, knowing that it was obtained by, or derived directly or indirectly from, the commission of an offence under subsection 279.011(1). They were also acquitted of an offence under s. 279.03(2) of withholding a travel or identity document belonging to the victim, which document established or purported to establish her identity or immigration status.

[5] Deshon Boodhoo was acquitted of an offence under s. 264.12 of uttering threats to cause death or bodily harm to the victim and her family.

[6] Kemoy Chisholm was acquitted of an offence under s. 271 of sexual assault.

[7] Keon Chisholm was acquitted of an offence under s. s. 286.3(2) of procuring the victim, a person under the age of eighteen years, to offer or provide sexual services for consideration.

Circumstances of the offences

[8] The offences took place between August and October of 2015, for a period of about six weeks. This was approximately one month following the victim’s sixteenth birthday.

[9] At the time, the victim had been kicked out of her mother’s house, because she refused to promise her mother that she would stop smoking marijuana, and stop skipping school. She had been kicked out of her boyfriend’s house, because she questioned him after finding underwear apparently belonging to another female in his bed.

[10] The victim met Keon Chisholm on a bus, on her way to her part-time work at a grocery store. After her shift, they met in a park, smoked marijuana, and discussed the problems she was having with her mother. She then returned to her boyfriend’s house for the night.

[11] The following day, after being kicked out of her boyfriend’s house, she met again with Keon Chisholm, and he offered to rent a hotel room for her. At some point, they had a discussion about escorting, and entered into an agreement pursuant to which the victim would receive 60 per cent of the profits, and Mr. Chisholm would receive 40 per cent. His part was to post advertisements, rent hotel rooms, and, and communicate with customers. The victim provided him with photographs of herself which he posted on the internet to advertise her sexual services.

[12] The victim had not been involved in escorting previously, although she was familiar with escorting as a result of activities in which her boyfriend was involved, and counselling she had received from the Durham Police Service, at the request of her mother.

[13] A few days later, Deshon Boodhoo joined Keon Chisholm and the victim. He took additional photographs of her in her underwear which were posted on the internet, and changed the wording of the advertisement. He gave her advice on how she could make herself appear to be older than she was, and at some point began a sexual relationship with her. She testified that Mr. Boodhoo made her feel cared for and safe. He also counselled her on what to say if the police were to show up at the hotel room. She was to use a fake name, and say she was 19. By this time, she was no longer receiving her agreed-upon share of the money she earned.

[14] Kemoy Chisholm was released on parole approximately two weeks after the start of the victim’s sex work, and joined the others in the hotel at which they were then staying. For the next four weeks, he participated in the enterprise, although it would appear that he was involved to a somewhat lesser extent than the other two.

[15] The victim was provided with cocaine, sometimes by the offenders and sometimes by customers, and was expected to take it, as part of her sex work. She was required to provide sexual services to countless men over the six-week period. She estimated that she earned about $18,000 selling her sexual services, but acknowledged that expenses had to be paid from that amount.

[16] At some point, the victim was sexually assaulted by a customer when she was on a “car call”. She was driven to an isolated area, dragged out through the driver’s side door by her hair, assaulted over the hood of the car, and abandoned after being robbed and having her cell phone smashed.

[17] Eventually, about six weeks after the victim began her sex work, the offenders became concerned that the police might be moving in. They then drove her closer to home, and left her at a drug store.

Purpose and principles of sentencing

[18] Section 718 of the Criminal Code provides as follows:

718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[19] Section 718.1 of the Code provides as a fundamental principle of sentencing that: “A sentence must be proportionate to the gravity of the offence and the responsibility of the offender.”

[20] Section 718.2 of the Code provides a number of other sentencing principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender …

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders ….

[21] Section 718.01 of the Code provides that when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. In the present case, defence counsel agree that denunciation and deterrence are the primary sentencing objectives, but argue that rehabilitation remains an important consideration, given the relative youth of the offenders. I agree.

Victim impact statements

[22] Two victim impact statements were filed: one from the victim, and one from the victim’s mother.

[23] The victim states that despite many months of counselling, the trauma that she suffered, and continues to suffer, has permanently changed her life. She says that she has good and bad days, and that sometimes she wakes up in the morning feeling depressed, and unable to get out of bed, with the result that she misses events, appointments and deadlines.

[24] She states that she is afraid to appear in public, for fear of seeing people who will recognize her. I assume that includes men who paid for her sexual services, during the currency of the offences.

[25] The victim states that she has a skewed view of men, always wondering whether they would be a danger to her or not. She finds it hard to imagine finding a man with whom she can engage in a healthy and loving relationship.

[26] The victim’s mother states that when her daughter disappeared, she felt fear, panic, desperation and hopelessness, and that her entire world came crashing down. She gave up socializing, and her passion, teaching yoga.

[27] She had been a special constable working at this courthouse. She felt humiliation and shame going into work each day, and feared running into the offenders. She ended up transferring to other duties, in a different building.

[28] The victim’s mother continues to feel anger and rage which makes it difficult for her to deal with individuals coming into custody, and is unable listen to a victim’s testimony without relating it to her personal experiences.

[29] She says that the hope, excitement, and dreams that she once had for her daughter have changed to worry and fear, and that the impact of the offences has changed their lives forever. She continues to wonder how she failed her daughter.

The jury verdict

[30] I heard considerable argument on the issue of the facts that are open to me to find, based upon the mix of jury verdicts. In particular, defence counsel argue that in light of the acquittals on the trafficking charge, it is not open to me to find that violence was used against the victim.

[31] Two principles govern a sentencing judge in finding the facts necessary for sentencing. First, the sentencing judge is bound by the express and implied factual implications of the jury’s verdict. Pursuant to s. 724(2)(a) of the Code, he or she “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty”, and must not accept as fact any evidence consistent only with a verdict rejected by the jury. Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: R. v. Ferguson, 2008 SCC 6, at paras. 16ff.

[32] A contentious issue at the sentence hearing was the extent of the violence, if any, used by the offenders. The offenders argue that based upon the acquittals outlined earlier, I cannot accept the victim’s evidence of violence.

[33] Deshon Boodhoo was acquitted on the charge of threatening, and Kemoy Chisholm was acquitted on the charge of sexual assault. Defence counsel argue that in assessing whether violence was used, I cannot find that the incidents alleged to form the bases of these charges actually occurred. I agree. I also agree that the acquittal of Keon Chisholm on the additional charge of procuring indicates that the jury did not find him to be criminally responsible for the victim starting her sex work.

[34] Defence counsel also argue that as a result of the acquittal on the trafficking charge, it is not open to me to find that the offenders physically assaulted the victim when she tried to escape, or that they wrapped her in a sheet and put her under a scalding shower when she was uncooperative, as she testified. They argue that if the jury had accepted that evidence, or any evidence of significant violence, they would have convicted the offenders on the trafficking charge. Since they did not convict, they argue, they must have rejected the evidence, and it is now not open to me to find that the violence was used. For the following reasons, I disagree.

[35] Under s. 279.011 of the Code, a person who exercises control, direction or influence over the movements of a person under the age of eighteen years, for the purpose of exploiting them or facilitating their exploitation, is guilty of trafficking a person under the age of eighteen years.

[36] Under s. 286.3(2) of the Code, a person who, for the purpose of facilitating an offence under s. 286.1(1), exercises control, direction or influence over the movements of a person who offers or provides sexual services for consideration is guilty of procuring a person under the age of eighteen years.

[37] As a result of a question from the jury during deliberations, an omission in the indictment was discovered. In the count relating to trafficking in persons under the age of eighteen years, the Crown had alleged that the offenders exercised control over the movements of the victim, but not direction or influence. Crown counsel requested an order amending the indictment which for reasons given at the time, I refused.

[38] In their submissions, both Crown and defence counsel argue that the reason why the jury convicted on the procuring charge, but acquitted on the trafficking charge, is that while finding that the conduct of the offenders amounted to direction or influence over the victim’s movements, the jury was not persuaded that their conduct amounted to control over her movements. I do not disagree with that conclusion.

[39] However, it does not follow that because the jury acquitted on the trafficking charge, they must have rejected all of the victim’s allegation of violence.

[40] The jury was instructed as follows in relation to the phrase “control, direction or influence” as used in ss. 279.011 and 286.3(2) of the Code:

The element of control refers to invasive behaviour that leaves the person controlled with little choice as to their movement from place to place. Direction is exercised over the movements of a person when rules or behaviours are imposed. The exercise of influence includes less restraining conduct, but again, it must be influence that limits the movements of the controlled person.

[41] I do not accept that if the jury believed that violence was used, they would necessarily have found that the conduct of the offenders left the victim with “little choice as to her movement from place to place.” They might well have found that based upon occasional acts of violence, rules or behaviours were imposed, but that the offenders’ conduct fell short of leaving the victim with “little choice as to her movement.” For me to make the connexion that defence counsel urge would amount to an attempt to follow the logical process of the jury which I am prohibited from doing.

[42] I accept the victim’s evidence that she was once assaulted when she tried to escape, and that she was wrapped in a sheet, and placed in the bathtub, under a hot water shower. Although there is no evidence that she was actually burned in the latter incident, the experience would be both scary and humiliating.

Mandatory minimum sentences

[43] Defence counsel argued that the mandatory minimum sentences provided for in s. 286.3(2), 286.2(2), and 163.1(3) of the Code are unconstitutional. Following the date of the hearing, in R. v. Safieh, 2018 ONSC 4468, McKelvey J. struck down the mandatory minimum in s. 286.3(2), and accordingly, there is no longer a mandatory minimum sentence for the offence of procuring a person under the age of eighteen years. In addition, in the course of considering the appropriate sentences in the present case, I have come to the conclusion that the mandatory minimums in ss. 286.2(2) and 163.1(3) of the Code are also unconstitutional, and will deliver separate reasons for those conclusions.

Sentence range

[44] The position of Crown counsel is that a global sentence of six to ten years would be a fit sentence for these offenders, on these offences. The position of defence counsel is that a global sentence of three years would be fit.

[45] In relation to range of sentence, defence counsel rely upon R. v. Miller, [1997] O.J. No. 3911, at para. 39. In that case, Hill J. found that the guideline categorization referred to by the Alberta Court of Appeal in R. v. Tang, 1997 ABCA 174 served to provide some general guidance with respect to the degrees of seriousness of prostitution-related criminality.

[46] The categorization referred to in Tang provided that sentences within the range of four to five years are usually approved for offenders who have coerced a woman into becoming or remaining a sex-worker, and exercised a significant degree of control over her activities. Where the element of coercion is lacking and the offender relies upon the earnings of the sex-worker as his main source of income, the appropriate sentence is more likely to be within the range of two to three years imprisonment. Sentences of between twelve and eighteen months’ imprisonment are likely to be found where the offender receives money from the sex-worker, but the relationship cannot be characterized as one of exploitation. Using this guideline, defence counsel submit that the present case falls within the middle category of seriousness.

[47] However, this guideline categorization came from an English sentencing text published in 1970, and the Alberta Court of Appeal noted, at para. 10 of Tang, that the guideline did not address child prostitution, and that higher sentences had been imposed by Alberta courts in such cases. In In this regard, I note that in Miller, all of the victims were adults.

[48] While I agree that the categories referred to in Tang and Miller are helpful in the analysis of prostitution-related offences, the specific sentence ranges are low, which is not surprising given that they came from a text published in 1970.

[49] Crown counsel cites a number of cases in which sentences ranging from four to eight years were imposed in procuring and human trafficking cases, or for similar offences which pre-date the current regime. Appendix “A” to these reasons is a list of those cases. In the cases cited by defence counsel, sentences ranging from 29 months to 5 years were imposed. Appendix “B” is a list of those cases.

[50] Because every offender and every offence are different, it is not possible to put the decided cases into any sort of order from least serious to more serious, or to fit the present case into a specific place in any such order. There are too many variables, including, the number of victims, the degree of coercion or control, the amounts earned by the victims and the amounts taken by the offenders, the vulnerability of the victims, and the period of time over which the offence occurred. A long list of these and other relevant factors may be found in R. v. Miller, [1997] O.J. No. 3911, at para. 38.

Aggravating circumstances

[51] Under s. 718.2 of the Code, evidence that the offender, in committing the offence, abused a person under the age of eighteen years, and evidence that the offence had a significant impact on the victim, considering their age, and other personal circumstances, are aggravating circumstances. In this case, the victim was barely sixteen, and her victim impact statement speaks to the significant impact these offences had on her.

[52] Without repeating the facts of the case, the manner in which these offences were committed was clearly aggravating. The offenders took advantage of the fact that the victim had been kicked out of her home, and her boyfriend’s home. Defence counsel argue that she could have returned home and been amenable to her mother’s rules, but the fact is that that is not who she was at the time, and the offenders took advantage of her.

[53] The advertisements posted on the internet contain photographs of the victim, wearing a bra and thong underwear, bent over or lying on a bed. Her face was not shown, and care was taken not to show her tattoos so that she could not be identified. Although the advertisements were relatively mild in comparison to what one normally thinks of as child pornography, the transmission of any written material or visual representation that advocates or counsels sexual activity with a person under the age of 18 years is a serious offence.

[54] A review of the aggravating and mitigating circumstances particular to each of the three offenders will follow. However, while there are differences in both the aggravating and mitigating circumstances among the three, on balance, it is fair that on the procuring and material benefit charges, they be sentenced to the same terms of imprisonment. Similarly, on balance, it is fair that Deshon Boodhoo and Keon Chisholm be sentenced to the same term of imprisonment for their convictions on the advertising and child pornography charges.

Sentences to be imposed

[55] Having considered the facts of this case, the submissions of counsel, the case law cited, and the purpose and principles of sentencing, I have determined the following to be fit sentences:

• for the convictions on Count 7 (procuring person under eighteen years), four years’ imprisonment;

• for the convictions on Count 8 (material benefit from sexual services provided by person under 18 years), 2 years’ imprisonment;

• for the convictions on Count 2 (advertising sexual services), 1 year imprisonment;

• for the conviction on Count 1 (distribution of child pornography), one year imprisonment.

[56] However, in the cases of Deshon Boodhoo and Keon Chisholm, the sentence on Count 7 will be reduced to forty months, because the sentence on Count 1 is required by s. 718.3(7) to be consecutive to Count 7, and the combined sentence would otherwise be unduly long.

The offenders

[57] I will now deal separately with the particular circumstances of each offender, and the sentence to be imposed on each.

Deshon Boodhoo

[58] Deshon Boodhoo is twenty-two years old. At the time of the offences, he was nineteen. He is single, has no dependents, and resides with his mother. She is supportive of him as evidenced by her attendance in court as this matter proceeded.

[59] Mr. Boodhoo has no prior criminal record. When he was arrested in relation to the present offences, he was found in possession of narcotics, and subsequently pleaded guilty to possession for the purpose of trafficking. However, although the drug offence may be relevant is assessing Mr. Boodhoo’s character, for the purposes of sentencing, he is considered to be a first offender, because he had not been sentenced on the drug charge, prior to committing the offences for which he is now being sentenced.

[60] A pre-sentence report was prepared for Mr. Boodhoo.

[61] The probation officer reports that Mr. Boodhoo denied being involved in any sexual services offered by the victim, denied knowing her age, and although admitting that he had a sexual relationship with the victim, he characterized the relationship as “friendship with benefits”.

[62] However, Mr. Boodhoo reported to the probation officer that being in jail (pre-sentence custody on the narcotics charge) was a “big wake-up call” for him, and has been a “blessing in disguise”, because it has kept him from continuing down a criminal path. He said that he has matured, has a new perspective on life, and wants to do better. He requires an additional four credits to receive a high school diploma. His goal is to complete high school, and pursue a career in interior design or architecture. He has a limited employment history, and has been on social assistance since October 2016.

[63] Defence counsel argues that Mr. Boodhoo should receive credit for the restrictive conditions of his bail. He has been under strict house arrest for a period just short of two years. The only variation in the bail terms was to allow him to attend trial on his own, when his mother was required to work.

[64] I agree that the strict house arrest which Mr. Boodhoo has been under is a mitigating factor. However, other than a recent request to attend a family funeral in Jamaica, there is no evidence of any variation request to which the Crown did not consent, nor is there any evidence of the impact of the conditions on Mr. Boodhoo. The mitigating effect is of the house arrest is therefore limited. He will receive a credit of five months.

[65] Mr. Boodhoo’s sentence on the charge of procuring a person under the age of eighteen years (Count 7) will be 40 months, minus the five-month credit for pre-sentence custody, with a resulting prison term of 35 months. His sentence on the conviction for receiving a material benefit from sexual services provided by a person under 18 (Count 8) will be two years, to be served concurrently to the sentence for procuring. His sentence on the conviction for advertising sexual services will be one year, to be served concurrently to the sentence for procuring. His sentence on the charge of distribution of child pornography will be one year, and pursuant to s. 718.3(7)(a), it will be served consecutively to the sentence for procuring. The effective global sentence is therefore 47 months.

Kemoy Chisholm

[66] Mr. Chisholm is 26 years old. He was 23 at the time of these offences.

[67] He has a significant criminal record, dating back to 2005, including convictions for assault with a weapon, uttering threats, breach of recognizance, obstructing justice, and most recently, possession of a restricted firearm with ammunition, and flight while pursued by a peace officer. On the possession charge, he was sentenced to 26 months in prison, after serving 15 months in pre-sentence custody.

[68] Defence counsel argues that Kemoy Chisholm played a lesser role in these offences. She points to the fact that he arrived on the scene two weeks after the other offenders, and that he interfered with the enterprise by using the phone, and often getting in the way of the victim’s work. While I agree that the length of time that Kemoy Chisholm was involved is a factor to be taken into account, I do not agree that there is any mitigating effect to his interference with the victim’s work. He didn’t interfere for the benefit of the victim. Rather, to the extent that he did interfere, it was simply a matter of doing what he wanted to do, when he wanted to do it, without regard for the others.

[69] Mr. Chisholm exercised his right of allocution. He acknowledged the seriousness of the offences of which he was convicted, and the fact that he ought to have spent his time in a better way. He said that it’s time for him to change his life, and to be a good father to his daughter. He is looking forward to getting out of prison, completing his secondary school education, and pursuing a career.

[70] Kemoy Chisholm’s sentence on the conviction for procuring a person under the age of eighteen years (Count 7) will be four years. His sentence on the conviction for receiving a material benefit from sexual services provided by a person under 18 (Count 8) will be two years, to be served concurrently.

[71] Mr. Chisholm has been in pre-sentence custody for 1,031 days. If given credit for this time at 1.5:1, he would be entitled to a credit of 1,546.5 days which would be four years, two months and twenty-two days. However, since that credit would exceed his four-year sentence, he will receive a credit of four years, less one day on Count 7, and two years less one day on Count 8, with the result that he will be sentenced to one day in prison, for each conviction, to be served concurrently.

[72] To assist Mr. Chisholm with rehabilitation, he will be on probation for a period of two years. In addition to the compulsory conditions set out in s. 732.1(2) of the Code, the probation order will include the following conditions:

• that he report to a probation officer within two working days, and thereafter, when required by the probation officer, and in the manner directed by the probation officer;

• that he remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or the probation officer;

• that he be amenable to any assessments or counselling, at the direction of the probation officer; and

• that he have no contact with the victim or her mother, and remain at least 500 metres away from any known place of residence, education, employment or other place they are known to be.

Keon Chisholm

[73] Keon Chisholm is twenty-two years old. At the time of the offences, he was nineteen.

[74] His criminal record consists of convictions in 2014 for armed robbery, and use of an imitation firearm during the commission of an indictable offence.

[75] When Mr. Chisholm was initially on bail, he enrolled in school and applied for a bail violation which was ultimately denied. He has a positive work history, and a supportive mother, sister and brother.

[76] Mr. Chisholm has served a total of 288 days in pre-sentence custody. At 1.5:1, he is entitled to a credit of 432 days which I calculate to be equivalent to 14 months and 5 days.

[77] Keon Chisholm’s sentence on the conviction for procuring a person under the age of eighteen years (Count 7) will be forty months, less the credit of 14 months and 5 days, with a resulting sentence of 26 months, less 5 days. His sentence on the conviction for receiving a material benefit from sexual services provided by a person under the age of 18 years (Count 8) will be two years, to be served concurrently to the sentence for procuring. His sentence on the conviction for advertising sexual services will be one year, to be served concurrently to the sentence for procuring. His sentence on the charge of distribution of child pornography will be 1 year, and pursuant to s. 718.3(7)(a), it will be served consecutively to the sentence for procuring. The effective global sentence is therefore 38 months, less 5 days.

Ancillary orders

[78] The following ancillary orders will be included in the sentences of each of the three offenders:

• an order authorizing the taking of a DNA sample, and an order that the offender report and submit to the taking of the sample;

• a firearms prohibition order pursuant to s. 109 of the Criminal Code;

• an order prohibiting the offender from communicating directly, or indirectly, with the victim or her mother during the custodial period of his sentence; and

• an order that the offender comply with the Sex Offender Information Registration Act for a period of 20 years.

[79] In addition, Deshon Boodhoo and Keon Chisholm will pay victim fine surcharges of $800 each, and Kemoy Chisholm will pay a victim fine surcharge of $400.

“Bale J.”

Released: October 5, 2018

COURT FILE NO. 14315/16

DATE: 20181005

ONTARIO

SUPERIOR COURT OF JUSTICE

Her Majesty the Queen

– and –

Deshon Tarone Boodhoo, Kemoy Clayton Chisholm, and Keon Anfernee Chisholm

REASONS FOR SENTENCE

Bale J.

Released: October 5, 2018