Court File and Parties

COURT FILE NO.: CR-16-7200-00 DATE: 20190328 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – COURTNEY SALMON Defendant

Counsel: Veronica Puls, for the Crown Jennifer Penman, for the Defendant

HEARD: March 28, 2019

REASONS FOR SENTENCE

Delivered Orally

MCCARTHY J.:

Background

[1] Courtney Salmon was found guilty of four counts on a seven-count indictment by a jury on November 2, 2018. The jury found Mr. Salmon guilty of human trafficking (s. 279.01(1) of the Criminal Code); receiving material benefit from human trafficking (s. 279.02(1) of the Criminal Code); procuring/exercising control (s. 286.3(1) of the Criminal Code); and receiving a material benefit from sexual services for consideration (s. 286.2 of the Criminal Code).

[2] The court received sentencing submissions on February 5, 2019. Mr. Salmon appears before me today for sentencing. The complainant is referred to herein as “AB”.

The Crown’s Position

[3] The Crown seeks a global sentence of ten years of incarceration less credits for pre-trial custody and other credits. The breakdown of this global sentence should consist of: eight years on count 1; two years consecutive on count 2; five years concurrent on count 3; and eighteen months concurrent on count 4. The Crown seeks other ancillary orders: an order for registry under SOIRA; an order for a DNA sample; a s. 109 weapons prohibition; a s. 743.21 non-communication order; and an order for forfeiture.

The Defence Position

[4] The defence asserts that five years, less credit for pre-trial custody, and less credits for Duncan and Downes considerations, is entirely just and appropriate. The defence points to the fact that Mr. Salmon was acquitted of the “violent crimes” charges – assault against Courtenay Skinner, sexual assault against AB, and uttering death threats against AB. The defence also contends that counts 3 and 4 should be conditionally stayed under the Kienapple principle and the remaining counts should attract concurrent, not consecutive sentences, given that the underlying facts on counts 1 and 2 constitute one continuing crime operation.

Additional Evidence

[5] In addition to the jury verdicts and the evidence at trial which undergirded those verdicts, the court was also asked to consider the victim impact statement filed and read out by AB, the criminal antecedents of Mr. Salmon, letters of support from the family and friends of Mr. Salmon, an affidavit from Mr. Salmon setting out the conditions at the Central East Correctional Centre (“CECC”) and his ordeal during pre-trial custody, medical and CECC records, and Mr. Salmon’s recognizance of bail. Defence counsel furnished the court with a proposed calculation of sentencing credit summary. Mr. Salmon was invited to address the court but declined to do so.

The Principles of Sentencing

[6] Section 718 of the Criminal Code sets out the purposes of sentencing: the denunciation of unlawful conduct; general and specific deterrence; the separation of the offender from society where necessary; rehabilitation for harm done to the victims and the community; and the promotion of a sense of responsibility in offenders and acknowledgement of the harm done.

[7] The fundamental principle of sentencing is set out in s. 718.1 of the Criminal Code: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[8] In addition, section 718.2 of the Criminal Code requires the sentencing court to consider a number of other principles. These include: that sentences should be increased or decreased to account for any aggravating and mitigating circumstances present in the context of the offences; that any sentence imposed should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; and that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.

Discussion

[9] In terms of crafting an appropriate sentence in a human trafficking/procuring case, both Crown and defence suggest that the court should turn to the “whole panoply of factors” set out by the Alberta Court of Appeal in R. v. Tang, 1997 ABCA 174, at para. 11, as well as the additional factors identified by Hill J. of the OCJ in R. v. Miller, at para. 39. The list of those factors can be summarized as follows:

1. The degree of coercion or control exercised by the offender on his victim’s activities;
2. The amount of money received by the offender and the extent to which the offender allowed his victim to retain her earnings;
3. The age of the victim;
4. Any special vulnerability on the part of the victim;
5. The working conditions in which the victim was expected to operate, including the physical surroundings of soliciting and servicing customers, safety concerns and health safeguards;
6. The degree of planning and sophistication, including whether the offender was working in concert with others;
7. The size of the offender’s operations including the number of customers the victim was expected to service;
8. The duration of the exploitative conduct;
9. The degree of violence, if any, apart from that inherent in the offender’s parasitic activities;
10. The extent to which inducements such as drugs and alcohol were employed by the offender;
11. The effect on the victims of the exploitation;
12. The extent to which the offender demanded or compelled sexual favours for himself from child victims;
13. The age of the customers attracted to the operation;
14. Steps taken by the offender to evade detection by authorities; and
15. Attempts by the offender to prevent a victim from leaving his employ.

[10] This list of factors has been accepted by judges of this court as providing a measure of guidance when assessing where, on the spectrum of seriousness, cases of this nature lie. Most recently, my brother Boswell J. employed them in his reasons for sentence in R. v. A.E., 2018 ONSC 471. I find it useful to do so here.

[11] I find that there was a significant degree of control and coercion exercised by Mr. Salmon over AB. The text messages demonstrate a heavy-handed control by Mr. Salmon over many aspects of AB’s life. I accept the evidence of AB that Mr. Salmon pressured her into offering Greek services, continuing to work during her menstrual cycle, and updating her “Backpage” ads. Mr. Salmon even posed as a client in order to verify that AB continued to offer the Greek services. When Mr. Salmon discovered that she did not, he coerced her into reinstating these services. The evidence indicates that, whether by invitation or not, Mr. Salmon travelled all the way to Montreal while AB was working there. Still, it is apparent from the evidence that AB had been involved in the sex trade prior to November 2015 and went back into it on her own initiative. It is also clear that AB sought Mr. Salmon out for possible protection and that AB either had previous experience in hotel work, or had some familiarity with it, prior to meeting up with Mr. Salmon.

[12] I find that there was a component of violence, or at least the spectre of violence, pervading the relationship between Mr. Salmon and AB. I accept AB’s evidence that Mr. Salmon threatened to mess up her face, harm her brother, or have Roxanne beat her up if she attempted to leave behind the arrangement they had. The text messages contain veiled threats like “don’t piss me off”, and Mr. Salmon applying pressure to AB about oversleeping and posting ads. Most importantly, an essential element of the human trafficking offence of which Mr. Salmon was convicted by the jury was that the victim held a reasonable belief that her safety, or the safety of someone close to her, would be in danger if she failed to provide the labour or services in question. I, too, find that she held that belief and held it reasonably.

[13] The text messages also contain references to substantial sums of money collected and held by AB, which I accept that she was obliged to hand over to Mr. Salmon. One text message references the sum of $6,380; given the various prices being charged for sexual services, this translates into dozens of “tricks” that the victim was required to perform to accumulate this sum.

[14] Although the victim was not a minor, she was still just past her teenage years when the relationship with Mr. Salmon began.

[15] I do not accept that AB had any special vulnerability. There was no evidence that she suffered from any physical or mental disability, that she was enormously in debt, or in dire financial circumstances at the time of the offences. She appears to have had a supportive family.

[16] The working conditions in which AB operated do not appear to have been in any way deplorable. I heard no evidence that she was ever the victim of abuse or violence at the hands of unsavoury customers. Nor did I hear any evidence that she suffered from any deprivation or exposure to communicable diseases beyond what would be expected by anybody working in the sex trade.

[17] Mr. Salmon did not appear to be working in concert with others; I do not find that the operation featured any appreciable level of sophistication or planning. The use of cell phones as a means to take photos, post ads, attract business, and maintain contact with the worker does not strike me as particularly advanced, innovative, or sophisticated. That said, it appears that AB was expected to service multiple clients while she was “on point” and that her shift on point was undoubtedly gruelling and exhausting.

[18] The exploitative conduct of Mr. Salmon covered a period of five and a half months. This was not an insignificant period of time.

[19] The jury did not find Mr. Salmon guilty of any offences involving sexual violence. Indeed, the evidence points to an entirely consensual sexual relationship between AB and Mr. Salmon.

[20] There was no evidence that Mr. Salmon provided AB with any drugs or alcohol. By her own admission, AB obtained cocaine from clients.

[21] The victim impact statement confirms that Mr. Salmon’s exploitative conduct has had a highly negative impact on AB. I found that statement compelling and afford it significant weight in sentencing.

[22] I am not convinced that Mr. Salmon made any particular attempts to evade authority during the period of the trafficking operation. There is insufficient evidence of what transpired on the return trip from Montreal for this episode to be considered evasion of any kind.

[23] I am satisfied that the atmosphere of fear, intimidation, and the spectre of violence created by Mr. Salmon did act as a check on AB’s freedom to abandon the arrangement. Although AB did return to her brother’s residence on a regular basis, it is clear that Mr. Salmon knew where to find her and how to contact her. Indeed, Mr. Salmon had been to her brother’s residence and was familiar with his place of employment. In light of all the circumstances, it is understandable that AB would not have felt free to leave the situation behind without fear of some repercussions.

[24] The court in Tang, at para. 5, categorized the seriousness of human trafficking offences into three tiers. The first tier, that being the most serious, involves cases where the offender has coerced the complainant into becoming a prostitute and has exercised a significant degree of control over her activities. The second tier lacks the element of coercion but involves the offender relying on the complainant’s earnings as his principal source of income. The third tier involves cases where the offender receives money from the complainant, but their relationship lacks an exploitative character.

[25] The case before me did not feature Mr. Salmon coercing AB into entering the sex trade; there was no sexual violence; there was no physical violence sufficient to warrant a finding of guilt on the assault charge; and Mr. Salmon was found not guilty of uttering death threats. Nonetheless, there was a lengthy period of exploitation during which Mr. Salmon ran an operation which featured his victim degrading herself too many times to count, for the dominant purpose of Mr. Salmon’s commercial profit. During that time, Mr. Salmon used a number of tactics ranging from intimidation, threats, criticism, and pressure to perform, to keep his victim working and generating revenue.

[26] Thus, I find that this case can properly be viewed as falling into either the higher end of the second tier or the lower end of the first tier of seriousness according to the Tang model.

[27] In A.E., 2018 ONSC 471, my brother, Boswell J., found that seven years was an appropriate sentence for human trafficking in circumstances where the offender did not coerce or procure his first victim to become a prostitute. As in this case, however, the offender did use coercive tactics to keep the prostitute working and did take virtually all of the earnings. Unlike in this case, the exploitation of the victim went on for years and featured actual assaults. The human trafficking in that case involved a second victim whose situation did not involve any threats comparable to that experienced by her co-victim and whose exploited state lasted only a matter of months. Boswell J. found that a fit sentence in respect of the second victim was five years.

The Appropriate Sentence

Criminal Antecedents

[28] Mr. Salmon has a lengthy criminal record which, with the youth record included, features eight incidents of violence against persons. He has one conviction for attempting to procure from 2009.

Mitigating and Aggravating Factors

[29] There are few mitigating factors here. I do not think Mr. Salmon can benefit from not having assaulted or sexually assaulted AB during their relationship. The letters of support I reviewed from family and friends of Mr. Salmon are no doubt sincere; sadly, I believe them to be naïve and blinkered. Mr. Salmon is no stranger to criminal activity. That said, there are few aggravating factors beyond those already discussed which have served predominately to push this case into a moderately higher range of seriousness. On balance, I do not find that mitigating or aggravating circumstances should affect the sentence in any appreciable way.

The Jump Principle

[30] I am obliged to bear in mind the jump principle. When sentencing a repeat offender, a court should act with caution before imposing a term of incarceration which would be significantly longer than the ones imposed on the offender previously. In this case, the longest previous period of incarceration was six months, nearly ten years ago.

[31] The index offences here are far too serious for this principle to have much utility. Mr. Salmon has a lengthy criminal record; clearly, prior sentences did not deter him from reoffending. Proportionality and specific deterrence must remain paramount in sentencing. Mr. Salmon is now in his mid-40’s. There is simply no evidence that this man is a serious candidate for rehabilitation or that he has availed himself of any services to correct his ways. I find that only a significant period of incarceration can accomplish the goals of sentencing set out above. Mr. Salmon has proven himself to be a danger to others; by engaging in human trafficking, he has committed a crime which is, at its core, the exploitation of another human being. This must be strongly denounced. Mr. Salmon must remain separated from society so as to prevent others from being exploited, demeaned, and victimized.

The Kienapple rule

[32] The rule against multiple convictions for the same crimes was established by the Supreme Court in R. v. Kienapple (1974), [1975] 1 S.C.R. 729 (S.C.C.) at pp. 744-745. Laskin J. set out the principle that multiple convictions are precluded for related offences arising from the same delict or factual situation. In R. v. Prince (1986), 30 C.C.C. (3d) 35 (S.C.C.), the Supreme Court of Canada held that the rule against multiple convictions applies only where there is a relationship of sufficient proximity between the facts and between the offences that form the basis of the charges against the accused. The requirement for a factual nexus will usually be satisfied if the same act of the accused grounds each of the charges. A legal nexus is satisfied if the offence for which a conviction is sought does not contain any additional and distinguishing element that goes to guilt. I find it abundantly clear that there is that relationship of sufficient proximity between the facts and between the offences that form the basis for the convictions of counts 1 through 4. I find the factual matrix underpinning the conviction on count 3 to be integral to, and wrapped up in, the same factual matrix as count 1. The charges are almost entirely based upon the sexual services offered by AB for profit in that window of time framed by the evidence. I find that the factual matrix underpinning the conviction on count 4 to be integral to, and wrapped up in, the same factual matrix supporting the conviction on count 2. The sexual services out of which profits were reaped were the essential component of the human trafficking. Moreover, the essential legal elements of the offences in counts 2 and 4 are practically the same. Multiple convictions as between these counts would offend the Kienapple rule.

[33] In the result, I would order that the charges on counts 3 and 4 be conditionally stayed.

Concurrent or Consecutive Sentences

[34] I find that the general principle articulated by Clark J. in R. v. Dass, at para. 108, should apply to the remaining convictions on counts 1 and 2; where there is a reasonably close nexus between the offences in time and place, and where they appear to be part of one continuing crime operation, the sentences should be concurrent: see Sentencing, 6th ed., Ruby et al. (Markham: Butterworths, 2004), at para. 14:10. Here, I find that all of the counts on which the offender was convicted formed part of one continuing crime operation – a five and half month sex trade operation for profit making use of posted online advertisements and run predominately out of hotels in Mississauga, Burlington, Hamilton, and Montreal. The boss of the enterprise was Mr. Salmon. The worker and exploited victim was AB. I am persuaded that the sentence for the remaining offences, counts 1 and 2, should be served concurrently.

Conclusion

[35] I have arrived at the conclusion that six years of incarceration is a just and fit sentence for the crime of human trafficking. The exploitative conduct here went on for nearly half a year and featured threats, intimidation, coercion, and insults, which, even if they were not physical, were degrading and harmful to the victim. Mr. Salmon may not have forced AB into the sex trade; but his methods and actions left her justifiably feeling like she had no safe way to leave. That sustained period of exploitation has left AB in a dreadfully damaged state. I find that Mr. Salmon retained most, if not all, of the proceeds from the sex trade services provided by his victim. The offender has a longstanding criminal record featuring offences against persons. There appears to be no history of, and no prospects for, rehabilitation.

[36] I have concluded that a just and fit sentence for the offence at count 2 is two years concurrent.

[37] The global sentence is, therefore, six years before reduction for pre-trial custody and further reduction for Duncan and Downes credits.

[38] Crown and defence agree that Mr. Salmon is entitled to receive a credit of 1:5 to 1 for the days he has spent in pre-trial custody. After being released on bail, he was taken into custody on February 28, 2017, and has remained in custody until today. That is a total of 2 years and 28 days. Under this formula, he is entitled to a credit of 3 years and 42 days for time served.

“Duncan” Credits

[39] In appropriate circumstances, particularly harsh pre-sentence incarceration may prompt a court to allow additional credits to the accused: see R. v. Duncan, 2016 ONCA 754. The case law suggests that there is no mathematical formula for doing so.

[40] Mr. Salmon filed an affidavit detailing the conditions he endured during his presentence custody at the CECC in Lindsay. Supporting materials from CECC confirm that during Mr. Salmon’s time at the institution, there were 171 days of partial or complete lockdown. The conditions in his cell were often deplorable with plumbing problems being a particularly unpleasant aspect of his ordeal. He witnessed inmate violence and was himself the victim of an attack in which he sustained a broken hand.

[41] One can safely assume that any period of incarceration at just about any custodial facility would be generally unpleasant. It is difficult to grade Mr. Salmon’s experience in the absence of any comparable experiences from other inmates at CECC or elsewhere. Still, there is nothing to contradict Mr. Salmon’s evidence on the subject. I am persuaded that the conditions and hardships he endured were likely out of the ordinary. This justifies an additional credit under the Duncan analysis. Based on the evidence before me, I am prepared to credit Mr. Salmon with a further 4 months or 120 days.

“Downes” Credit

[42] Mr. Salmon was under house arrest for five months and nine days from September 21, 2016, until he went into pre-trial custody on February 28, 2017. Defence counsel has furnished the court with a number of cases in which Downes credits were granted. None of the cases deal with a period of bail of less than 14 months; however, I note that the credits granted for periods of strict bail range between 25 percent and 37 percent of the period of bail. The court was furnished with a copy of the bail conditions which clearly left Mr. Salmon entirely dependent upon his surety if he wished to go out of the house. There was no evidence of how the strict conditions hampered Mr. Salmon from seeking medical attention or attending to his affairs. In the circumstances, I find that a credit of 30% of the bail period is appropriate and fair. This calculates out to a further credit of 49 days.

[43] After application of all of these credits, the remnant sentence left for Mr. Salmon to serve is 2 years and 154 days (6 years less 3 years and 211 days).

[44] Mr. Salmon, please stand.

[45] Mr. Salmon I impose on you a global sentence of six years of incarceration. Taking into account pre-sentence custody and credits, you will have another 2 years and 154 days left to serve.

[46] There shall also be the following ancillary orders:

a) Pursuant to s. 743.21 of the Criminal Code, Mr. Salmon is prohibited from communicating directly or indirectly with AB or any member of her immediate family while he is in custody; b) These being primary designated offences, I order the taking of bodily substances from Mr. Salmon for the purpose of forensic DNA analysis pursuant to s. 487.051 of the Criminal Code; c) Pursuant to s. 109(1)(a) of the Criminal Code, Mr. Salmon is prohibited from possessing any weapons for life; d) There shall be forfeiture of any electronic devices seized by police during the investigation; [and] e) Mr. Salmon shall comply with the Sex Offender Information Registration Act, for a period of 20 years.

[47] And that is the sentence of the court.

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions it is the official written Ruling that is to be relied upon.

Justice J. McCarthy Released: March 28, 2019

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – COURTNEY SALMON Defendant REASONS FOR SENTENCE Justice J. McCarthy Released: March 28, 2019