ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-17-50000678-0000

DATE: 20190909

BETWEEN:

HER MAJESTY THE QUEEN

– and –

AKEIL PURCELL

Defendant

David Tice, for the Crown

Mitchell Chernovsky, for the Defendant

HEARD: At Toronto, January 25, March 5, July 5, and July 31, 2019

Michael G. Quigley J.

REASONS FOR SENTENCE

Overview

1Akeil Purcell was found guilty after trial of human trafficking offences, deriving financial benefit from human trafficking, uttering threats, and two charges of assault causing bodily harm. He was also charged and found guilty of exercising control, direction or influence over N.W., a person under 18 years of age, for the purpose of prostitution (s. 286.3(2)) and of receiving a financial benefit from the prostitution of a person under 18 years of age (s. 286.2(2)). After applying the principles in R. v. Kienapple[1], I have stayed those two charges and convicted Mr. Purcell of all other counts.

2Section 279.011(1)(b) of the Criminal Code (the “Code”)[2] mandates a mandatory minimum sentence (“MMS”) of five years in custody for Akeil Purcell for the charge of trafficking a person under the age of 18 years. However, on December 19, 2018, Mr. Purcell applied to declare s. 279.011(1)(b) of the Code unconstitutional and of no force and effect pursuant to s. 52(1) of the Constitution Act. Mr. Purcell submits that the mandatory minimum provisions are inconsistent with s. 12 of the Charter of Rights and Freedoms (“the Charter”) and cannot be saved under s. 1 of the Charter.

3The Defence seeks a sentence of four years and submits that a sentence of five years or more would be grossly disproportionate in Mr. Purcell’s case, or that of a reasonable hypothetical offender, and therefore violates s. 12 of the Charter. The defence suggests a fit sentence here would be four to five years.

4The Crown seeks a global sentence of seven years in custody. The breakdown of the sentences sought for the offences for which convictions have been entered is as follows: (i) Human trafficking (s. 279.01) - seven years; (ii) Material benefit from human trafficking (s. 279.02) - four years concurrent; (iii) Uttering a threat to cause death (s. 264.1(2)(a)) 12 months concurrent; and for the two counts of assault causing bodily harm relating to two different events (s. 267(b)) - 12 months and 18 months respectively, also to be served concurrently. The Crown also seeks a number of ancillary orders.

5On the constitutional challenge, Crown counsel argued that the imposition of the MMS of five years in custody would not be grossly disproportionate. Instead, Crown counsel responds that the MMS of five years in custody stipulated by s. 279.011(1)(b) is a reasoned and measured response by Parliament to the reprehensible crime of human trafficking of a person under the age of 18 years, and as such, does not offend s. 12 of the Charter.

6In any event, Crown counsel argued that in this case the principle of proportionality would call for a sentence of seven years in custody for the offence of trafficking a minor, considering the fundamental principles of sentencing, the nature of the offence, the circumstances of the offender (including aggravating and mitigating factors), and sentences imposed upon similarly situated offenders. Accordingly, the Crown contended that the imposition of the MMS of five years in custody upon the Applicant does not result in a sentence that is grossly disproportionate to the fit sentence required here, and therefore is not unconstitutional.

7I summarized the evidence in this trial and explained my reasons for a finding of guilt in my decision: R. v. Purcell, 2018 ONSC 6520.

8The issue on this sentencing hearing is what is the fit sentence for this 30-year-old first-time offender, having regard to all of the circumstances, and whether the five-year MMS called for is grossly disproportionate to the fit sentence required here, and therefore unconstitutional. I sentenced Mr. Purcell on July 31, 2019 with a brief overview of my reasons. These are my full, unabbreviated reasons as promised on that date. As I advised counsel on July 31, these reasons do not affect the sentence I imposed on July 31, but in these reasons I also address and provide my reasons in response to the offenders application to have s. 279.011(1)(b) declared unconstitutional.

Circumstances of the Offences

9N.W. met the accused in the summer of 2015. She was 16 years old. She and her mother were not getting along, so she had moved out of her mother’s house to run away. She was still in high school. She wanted to get out and make some money on her own so she could afford to have her own apartment. She planned to do that by offering her services as an “escort”, that is, as a sex trade worker. By the time she met Mr. Purcell, N.W. was already providing occasional escort services.

10Akeil Purcell was 27 years old when they met. N.W. explained to the accused that she was homeless and working as an escort. He told her that he would take care of her and to come and live with him and his female roommate, Shanika.

11N.W. moved in with Mr. Purcell and Shanika into their apartment on Keele St. in August 2015. N.W. was very attracted to Mr. Purcell. She wanted a relationship with him and they had sexual relations shortly after she took up with him. Mr. Purcell told N.W. that she was “his girl”. Two or three weeks later, N.W. disclosed to Mr. Purcell that she was only 16 years of age. Her age did not appear to concern him and he had sexual relations with her despite Mr. Purcell being fully aware that she was only 16 years of age.

12Mr. Purcell showed N.W. how to create and use a Backpage.com account for the purpose of placing advertisements for sexual services. He took photos of her wearing just her underwear and showed her how to upload the pictures to that website. Mr. Purcell gave N.W. $2,000 to set up her advertisements and to rent hotel rooms in order to meet with clients. Once N.W. started working, she was quickly able to return the money to Mr. Purcell because she was making several hundred dollars a day escorting.

13From August 2015 until May 2016, the accused drove N.W. to and from the hotels to provide sexual services to clients. Mr. Purcell made her give him all of her earnings. He said he would get her an apartment when she made $2,000. She believed him and continued to work and give him all of her earnings. At its core, Mr. Purcell deceived N.W. and made false promises to her in order to exercise control over her actions. This deception underlies the human trafficking charges in this case.

14Mr. Purcell kept telling her that she needed to work more and make more money to reach the goal of her own apartment. She worked almost every night and made about $250-$500 a night. She gave all of the money to Mr. Purcell at the end of each night as he instructed her to do. N.W. also overheard Mr. Purcell and Shanika discussing how the money N.W. made was being used to pay for Mr. Purcell’s car insurance, for Shanika’s rent, and for food for the family.

15As the months went by, Mr. Purcell started to become physically and verbally abusive towards N.W. On one occasion, he told her that if she ever left him he would kill her. For the last two months of their relationship, from early April 2016 until May 28, 2016, N.W. was working out of George’s Brothel, across the street from Devon’s House Restaurant.

16On May 28^th and into the 29^th, N.W. was providing escort services under Mr. Purcell’s direction. She attended the Devon House Restaurant, located at 1806 Jane St., late in the evening. When Mr. Purcell attended that location sometime later, a confrontation ensued between him and N.W.

17This argument ultimately spilled outside to the front of the restaurant. Mr. Purcell punched and slapped N.W. several times and then dragged her to the back laneway. He continued to assault her by punching her in the face. She tried to run, but Mr. Purcell tripped her by kicking her legs out from under her. She fell to the ground and cut open her right knee, resulting in a significant gash. She screamed for help. Mr. Purcell left the area but then returned with Shanika, who grabbed N.W. by the throat and scratched her face and neck. The altercation ended when Shanika body slammed N.W. to the floor. Mr. Purcell and Shanika then fled the area.

18N.W. was transported by ambulance to the Mount Sinai Hospital. She required 15 stitches to close the cut sustained on her right knee. She also sustained a bloody and swollen face and lips, cut to the toe area, bruises on her legs and shoulder, and scratches to her face and neck. Previously, she had also sustained bruises when he inflicted a series of hits on her several weeks earlier and at earlier times during their relationship.

Circumstances of the Offender

19A pre-sentence report was prepared in advance of this sentencing and was filed as an exhibit. It showed, as defence counsel explained in his submissions, that Akeil Purcell, aged 30 years, was born in Jamaica. He arrived in Canada on July 26, 2006 as a Permanent Resident. He continues to have that status. As a result of these offences and the sentence that will be imposed upon him, he will be deported to Jamaica once he has served his sentence in Canada.

20Family life in Jamaica was mostly nonexistent. His father played no role in his upbringing and his mother was involved only on a very limited basis. Mr. Purcell was raised by his mother until the age of eight years, but she then began full-time work, so his mother hired a woman to care for Mr. Purcell during the weekdays. At the age of 11 years, his mother began working on a cruise ship, which kept her away from home for lengthy periods of time, resulting in him being cared for by a family friend until the age of 14 years. His mother immigrated to Canada during his early teen years. These years were a very lonely and unhappy time in his life, which in turn made him very angry. He indicated that his mother provided money on a regular basis to the people caring for him. However, he recalls that only a small portion of the money was used for his benefit. He was clothed and fed and was provided with bus fare to and from school, but was treated poorly by his caregivers.

21From the age of 14 years to 16 years, he resided with his uncle in Jamaica. That was a very violent home, where his uncle assaulted him regularly. During this period a cousin stabbed him, which resulted in paralysis and limited mobility lasting for over one year. However, his last few months in Jamaica were described as his most memorable and enjoyable of his life. He resided with his aunt during this time and was very well cared for, and more importantly, shown love and compassion.

22Mr. Purcell’s mother began working on a cruise ship for one year when he was approximately nine years of age, after which she moved to Canada and worked so that she could continue to provide financial support for him. His mother told the pre-sentence report author that during her time away, he resided with extended family, who took good care of him. She indicated that she regularly provided money and clothing. However, she now realizes that it was her presence and emotional support that he needed the most. She confirmed that during his mid-teen years, he was cared for by an uncle, but upon reflection, she came to realize that this was not a good experience for her son. There was no love in the home and the uncle physically disciplined Mr. Purcell on a regular basis.

23In July 2006, Mr. Purcell immigrated to Canada with his half-brother in order to be with their mother, who was already a resident of Canada. Mr. Purcell told the probation officer that he had a very poor relationship with his mother as a result of her limited involvement in his upbringing. As a result, he resided with his mother for only one year. He also felt that his mother constantly compared her two sons to each other and that she was unhappy and angry with him because of how he “turned out”. During his second year in Canada, he resided with his aunt for approximately one year following which he began to live on his own. He has never had a stable residence of his own but moved often, spending short periods of time with friends and relatives.

24Mr. Purcell has two children who reside with their mothers. He indicated that he has a seven-year-old daughter from a previous two-year relationship. A Family Court Order is in place and he has regular visits with his daughter and a good relationship with the mother. He also has a four-year-old son from a previous three-year relationship but has not seen his son for over eight months.

25Mr. Purcell attended up to the 11^th grade of high school while residing in Jamaica, but he missed many classes as a result of spending time with his friends. Upon his arrival in Canada in 2006, at the age of 17 years, he was placed into the 10^th grade. He indicated that he attended school in Canada for only a few months, because he had very limited family support and a lack of money to pay for his bus fare. At the age of 19 years, he began attending an adult learning centre in Toronto, but he did not complete any courses. He again indicated a lack of support or interest from his family as the reason why he was not successful at completing any courses and thus has not completed his high school education.

26Mr. Purcell has a very limited employment history. In his early 20s he found work through temporary employment agencies. He worked as a painter and installed drywall. He enjoyed this type of work and found it rewarding. He would be interested in returning to this trade upon his release from custody. He reported that his longest period with the same employer was approximately 8 months. He last worked while he was on bail in 2017, for approximately three to four months, at a company that manufactured construction materials. Despite his limited employment history, he has only relied upon social assistance for less than one year. He also regularly supplemented his income by selling small amounts of marijuana.

27Mr. Purcell has a lengthy history of substance abuse, dating back to the age of eight years old. He indicated that in his pre-teen years he began consuming alcohol and smoking marijuana on a daily basis and that this use continued to the present. He reported that he suffers much emotional pain resulting from his upbringing and non-supportive family. His excessive use of alcohol and marijuana helps him somewhat to manage the feelings related to the past trauma in his life. When questioned as to how he was able to maintain any of his past employment he stated that he was able to manage for eight hours without consuming alcohol because he enjoyed the type of work he was performing, but he still “needed” to smoke marijuana through the day.

28In discussing his actions in this matter, Mr. Purcell told the probation officer that just by listening to N.W., he could not believe he did so much harm to her. He indicated that he spent a lot of time talking with N.W., which made him feel better about his life and his personal situation.

29Mr. Purcell expressed some remorse regarding how he may have hurt the victim emotionally, but he has not acknowledged or shown remorse regarding any of his other behaviours or actions towards the victim. He also explained that he has had trouble expressing himself verbally in past situations, which resulted in him acting out physically in a violent manner. He acknowledged that on previous occasions he directed his physical outbursts towards the victim.

30Mr. Purcell’s description of his interaction with N.W. involved intimidating behaviour and control over her, with him justifying his actions and minimizing the impact of his behaviour. He referred to the victim as his “best friend” and acknowledged that he benefited financially, emotionally, and sexually as a result of his involvement with N.W. and that all he did in return was drive the victim to and from hotels.

31Overall, Mr. Purcell expressed minimal remorse for his behavior and minimized his responsibility for his actions and their impact upon the victim. He relayed concerns regarding how his actions affected himself rather than how the victim was affected by his manipulation and abuse. He had nothing to say before the Court during his sentencing hearing.

32Factors identified by the author of the pre-sentence report indicate that to reduce the chance of future criminal activity, Mr. Purcell may benefit from addressing components of his life relating to intimidating/controlling behaviour, emotional health, past trauma, employment skills, and substance abuse.

Victim Impact Statement

33There was one victim impact statement read into the record in the course of the sentencing proceeding, the statement of N.W. She came and read that statement to the Court. It showed plainly that this offender caused N.W. to suffer significant emotional and physical trauma. Her pride and dignity were taken from her. She came to believe that all “she was good for was sex”. She thought of killing herself, believing that Mr. Purcell loved her, but he instead exploited her. She abused drugs and alcohol after the events. Plainly, these events have had a significant negative impact on her life.

34While the probation officer was preparing the pre-sentence report, he interviewed N.W. She told him that she continues to fear for her safety regarding Mr. Purcell. She indicated that he knows where she lives and she is concerned that she may be harmed upon his release from custody. N.W. stated that she unequivocally does not want the subject to have any contact with her.

Legal Parameters

(i) Human Trafficking: Section 279.01 of the Criminal Code

35In the context of this sentencing and the offender’s application that the MMS for the offence of human trafficking is unconstitutional, it is important to have regard for the legislative history of the provisions and the judicial commentary that emerges from the case law. As well, the case law defines the process used in the constitutionality analysis.

36Section 279.011 of the Code reads as follows:

279.011 (1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person under the age of eighteen years, or 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 an indictable offence and liable

(a) to imprisonment for life and to a minimum punishment of imprisonment for a term of six years if they kidnap, commit an aggravated assault or aggravated sexual assault against, or cause death to, the victim during the commission of the offence; or

(b) to imprisonment for a term of not more than fourteen years and to a minimum punishment of imprisonment for a term of five years, in any other case.

(2) No consent to the activity that forms the subject-matter of a charge under subsection (1) is valid.

37The term “exploitation” as contained in s. 279.011(1) is not ascribed its ordinary meaning, but is instead specifically defined in s. 279.04 as:

279.04 (1) For the purposes of sections 279.01 to 279.03, a person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.

(2) In determining whether an accused exploits another person under subsection (1), the Court may consider, among other factors, whether the accused

(a) used or threatened to use force or another form of coercion;

(b) used deception; or

(c) abused a position of trust, power or authority.

(3) For the purposes of sections 279.01 to 279.03, a person exploits another person if they cause them, by means of deception or the use or threat of force or of any other form of coercion, to have an organ or tissue removed.

38There is no doubt that sex trade workers are vulnerable members of Canadian society who engage in work that can be unsafe and exploitative in nature. For decades, Canadian courts have denounced the conduct of those who seek to exploit sex trade workers for their own personal gain. The role of the “pimp” has been consistently described as being that of a parasite within our society.^[3]

39In May 2002, Canada became a signatory to the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which had been adopted by the United Nations General Assembly in November 2000. Under Article 3 of the Protocol, “trafficking in persons” is defined as:

…the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.^[4]

40In accordance with Canada’s international obligations as a signatory to the protocol, the Government introduced Bill C-49: An Act to Amend the Criminal Code (Trafficking in Persons). The Bill, which received Royal Assent on November 25, 2005, created the offence of Human Trafficking under Canadian criminal law.^[5]

41The Supreme Court’s decision in Canada (Attorney General) v. Bedford[6], struck down the former prostitution-related offences in ss. 210, 212(1)(j) and 213(1)(c) of the Code. In coming to the conclusion that those provisions violated s. 7 of the Charter and could not be justified under s. 1, the Supreme Court found that the purpose of the three sections was primarily concerned with preventing public nuisance and the exploitation of prostitutes^[7], but concluded that the provisions were either grossly disproportionate (ss. 210 and 213(1)(c)) or overly broad (s. 212(1)(j)) in their application to this objective.^[8] Throughout the decision, the Court was critical of the Attorney General, who sought to uphold the provisions, and their submissions that the impugned provisions were aimed directly at eliminating prostitution and the exploitation of sex trade workers. The Court profoundly disagreed.

42In response to Bedford, the Government introduced Bill C-36: Protection of Communities and Exploited Persons Act, which proposed a fundamental “paradigm shift” away from the treatment of prostitution as a public nuisance and toward the treatment of prostitution as a form of sexual exploitation.^[9] It was Bill C-36 that introduced the mandatory minimum of five years’ imprisonment for the offence of Human Trafficking of a person under 18 years of age pursuant to s. 279.011(1)(b). Parliament made that decision to reflect the severity of exploiting a person for the purposes of engaging in human trafficking.^[10] Bill C-36 received Royal Assent on November 6, 2014.

43It is evident that by enacting s. 279.011(1)(b), Parliament has created a MMS that can reasonably be viewed as a proportionate response to the evil that is human trafficking, an activity that is effectively a form of modern day slavery, through which an individual is forced to perform a labour or service out of fear for the safety of themselves or another.

(ii) The Section 12 Charter Analysis

44Section 12 of the Charter states: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment”. A MMS, by its very nature, has the potential to depart from the principle of proportionality in sentencing. They function as blunt instruments that may deprive the courts of an ability to tailor proportionate sentences at the lower end of the sentencing range.[11]

45Counsel for the defence asserts that the MMS herein have already been ruled unconstitutional in the Superior Court of Justice of Ontario in R. v. Safieh[12] and R. v. Boodhoo[13]. It is argued that those decisions provide persuasive weight to this application. This is not quite correct, however, as the MMS struck down in those cases was that associated with the offence of procuring a person under the age of 18 for the purposes of prostitution, contrary to s. 286.3(2) of the Code, not s. 279.011(1)(b) that is in issue here.

46However, counsel for the defence also urged me to give great weight to the decision in R. v. Finestone[14] to show that the MMS has been struck down for s. 279.011(1)(b) as well. This, also, is not quite correct. In Finestone, M. Greene J. did find that the MMS contained in s. 279.011(1)(b) was unconstitutional, but she did not have the jurisdiction, as a provincial court judge, to declare the section of no force and effect. That jurisdiction is preserved to the Superior Courts under s. 52(1) of the Constitution Act.

47The analytical framework to be applied in determining whether a MMS violates s. 12 is explained by the Supreme Court of Canada in Nur, in R. v. Lloyd[15], and more recently in R. v. Boudreault.[16] It involves a two-step process:

1. First, I must first determine what constitutes a proportionate sentence for the offence, for this offender, having regard to the objectives and principles of sentencing in the Code; and

2. Second, having determined what I consider to be a proportionate sentence, I must consider whether the operation of the legislation requires me to impose a sentence that is grossly disproportionate to that fit and proportionate sentence for the offender. Even if it is not, I am required to consider whether reasonably foreseeable applications of the provision will impose grossly disproportionate sentences on others.^[17]

48The determination of a proportionate sentence will always be a “highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime.”^[18] As in any case, in assessing whether a particular sentence would be proportionate with respect to a given offender for a given offence, I must have regard to:

1. The sentencing objectives set out in s. 718 of the Code;

2. The aggravating and mitigating factors before the Court with respect to the offence and the circumstances of the offender. In R. v. Drumonde[19] the trial judge went through this exercise and found that the mandatory minimum was not unconstitutional based on the facts of the case;

3. Sentences imposed upon similarly situated offenders for the same offence or similar offences, that is, the range of sentences normally imposed;[20]

4. The principle of totality (if applicable); and

5. The principle of restraint in imposing a sentence of imprisonment.^[21]

[49] In assessing the constitutional validity of any MMS, I must also remain mindful of the principle of deference to Parliamentary decision-making. McLachlin C.J.C. made the point in Lloyd, by reminding courts that Parliament is owed deference when dealing with a s. 12 Charter challenge to legislation, because it is Parliament that has the power to make policy choices on the imposition of punishment for criminal activities, balancing the objectives of deterrence, denunciation, rehabilitation, and protection of society.^[22] In R. v. Guiller[23], the late Borins Dist. Ct. J., as he then was, admonished that:

While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function, the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency. (Emphasis added.)

50Demonstrating a breach of s. 12 of the Charter is “a high bar”.[24] Judges have been cautioned to “be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation.”^[25] The MMS must be more than merely disproportionate or excessive, but instead be so excessive as to outrage standards of decency and be abhorrent or intolerable to society.[26] Because the test is stringent and demanding, only on “rare and unique occasions” will a sentence infringe s. 12.[27]

[51] In many cases, the success or failure of a s. 12 Charter challenge will not depend on the facts of the particular case, but on whether a reasonably foreseeable hypothetical situation exists in which the minimum sentence would be grossly disproportionate.[28] Nur emphasized that Courts must permit cases to be dealt with where statutes are challenged on the basis of reasonable hypotheticals. This follows because if a statutory provision is actually unconstitutional, it should not continue to be applied simply because the particular case which demonstrates it to be so has yet to come forward:

To confine consideration to the offender's situation runs counter to the long and settled jurisprudence of this Court relating to Charter review generally, and to s. 12 review in particular.

If the only way to challenge an unconstitutional law were on the basis of the precise facts before the court, bad laws might remain on the books indefinitely. This violates the rule of law.[29]

52However, where a challenge relies on hypothetical scenarios, they must be “reasonable”, and they must involve or evoke “reasonably foreseeable situations where the impugned law may apply.”[30] They are not to be “far-fetched” or “marginally imaginable”.[31] I may also rely on actual reported cases[32], as the defence has done in this case.

53Hypothetical situations advanced by counsel that are fanciful or remote must be excluded from the analysis.[33] The provisions of the Code are not to be, “set aside on the basis of mere speculation.”^[34]

54Therefore, the question before me is whether a five-year sentence of imprisonment, the MMS stipulated in this case, would be grossly disproportionate to the offence of trafficking a person under the age of 18. That is, would the MMS be so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency, in reasonably foreseeable cases that are not “far-fetched” or only “marginally imaginable”.

Analysis: Application of the Section 12 Analysis to the Mandatory Minimum in this Case

(i) Principles and Objectives of Sentencing in this Case

55Section 718 of the Code states the fundamental purposes of sentencing and lists its underlying objectives. The fundamental purpose of any sentence is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by the imposition of just and appropriate sanctions.

56The primary sentencing objectives to be addressed through the sentence imposed include denunciation, general deterrence, specific deterrence, and the separation of the offender from society.

57Pimps are parasites who exploit vulnerable members of our society for personal gain. In the context of the sex trade, human traffickers are the worst type of pimps—those who threaten violence or use actual violence to force the compliance of their already vulnerable victims.

58To protect vulnerable sex trade workers from being subjected to this heightened form of exploitation, the Court, as the voice of our community, must denounce this conduct in the strongest of terms. Independent of any MMS implemented by Parliament, there remains a pressing need for the Court to deter such conduct through the implementation of a sentence that sends a clear message: exploit the vulnerable by subjecting them to this degrading and dehumanizing form of exploitation and you will pay a hefty price. That price will take the form of a significant loss of your liberty.

59The offender in this case engaged in a prolonged campaign of exploitation and manipulation of the victim for personal gain. It is axiomatic that he must be specifically deterred from engaging in similar conduct in the future.

60In order to ensure the protection of vulnerable sex trade workers in our community, and combat the social ill of human trafficking, there is also a need to strongly deter any like-minded individuals from engaging in such conduct in the future.

61The actions of Mr. Purcell toward the victim reveal his capacity for significant violence and display his shocking and callous disregard for the physical safety and psychological well-being of another human. This calls out for him to be separated from society for as long as is reasonable in the circumstances, in order to protect other vulnerable members of our community.

62However, given Mr. Purcell’s lack of a criminal record, the principle of rehabilitation must also be considered. The Crown acknowledges that the Applicant, while not a young man, ought to be a decent candidate for some rehabilitation. However, at this point, as the pre-sentence report shows, there is no clear evidence before me on whether Mr. Purcell has any insight into his callous behaviour and of what direction any rehabilitation will take.

63In the ordinary course, when the Court is sentencing a first-time offender to his or her first penitentiary sentence, the Court should proceed on the basis that the shortest possible sentence will achieve the relevant sentencing objectives.[35] However, any sentence imposed must still be consistent with the relevant sentencing principles and it must be proportionate to the gravity of the offence committed.[36]

64Here, the offender has committed one of the most reprehensible crimes known under our law. For approximately half a year, he used manipulation, threats, and physical violence to force another human being to engage in repeated acts of degrading sexual conduct for his own personal gain. While doing so, he displayed callous disregard for her physical and psychological well-being. Thus, it is clear to me that any rehabilitative prospects that may be present (and they are not obvious) cannot and should not be the primary factors considered in fashioning an appropriate sentence.

65Further rules are contained in ss. 718.1 and 718.2 of the Code. The former establishes the fundamental principle that a sentence must be proportionate to the gravity of the offence and the extent to which the offender is responsible for it. The latter stipulates that a sentence must be increased or decreased after taking account of any aggravating or mitigating circumstances relating to the offence or the offender. It also requires parity, that is, that a sentence imposed on this particular offender should be similar to sentences imposed on similar offenders in similar circumstances.

(ii) Mitigating and Aggravating Factors

66The Alberta Court of Appeal’s decision in R. v. Tang[37] establishes a list of factors that a sentencing judge should consider in a procuring case, along with the presence of aggravating factors specific to the nature of the offence and its elements, and in addition to a consideration of the more usual aggravating or mitigating factors. These factors continue to be relevant in human trafficking cases as well. At paragraph 11, the Court set out those factors:

1. The degree of coercion or control imposed by the pimp on the prostitute’s activities;

2. The amount of money received by the pimp and the extent to which the pimp allowed the prostitutes to retain their earnings;

3. The age of the prostitutes and their numbers;

4. Any special vulnerability on the part of the prostitutes;

5. The working conditions in which the prostitutes were expected or encouraged to operate, including their physical surroundings in terms of soliciting customers and servicing customers, and safety concerns, in addition to whether appropriate health safeguards were taken;

6. The degree of planning and sophistication, including whether the pimp was working in concert with others;

7. The size of the pimp’s operations, including the numbers of customers the prostitute was expected to service;

8. The duration of the pimp’s exploitative conduct;

9. The degree of violence, if any, apart from that inherent in the pimp’s parasitic activities;

10. The extent to which inducements such as drugs or alcohol were employed by the pimp;

11. The effect on the prostitute of the pimp’s exploitation; and

12. The extent to which the pimp demanded or compelled sexual favours for himself from the child prostitute.

67The factors set out in Tang relate to the old legislation, but since there are similarities between the offences as previously and presently described in the Code, many of the aggravating factors raised there are important to consider in the context of this case. Moreover, the cases which describe fit sentences for similarly situated offenders all reference Tang and take account of these same potential aggravating factors in determining the range of sentence that is called for.

68A Tang-focused review of the facts in this case causes me to find that the following factors are aggravating in this case relevant to Mr. Purcell:

69N.W. was a vulnerable 16-year-old runaway. She had already begun working as a prostitute while living on the streets. Mr. Purcell certainly recognized this opportunity and exploited her vulnerability for his benefit.

70There was a significant age disparity between them. Mr. Purcell was 27 years old at the time he met N.W., yet quickly began an intimate relationship with her, when it was clear to him that she was under 18.

71Mr. Purcell engaged in sexual and emotional manipulation of N.W., enticing her to believe that he was holding money for her. N.W. wanted to be in a relationship with him, but he was not interested in her. Nevertheless, he manipulated N.W. to keep her working and prevent her from leaving, so he could receive the proceeds from her work.

72The violence that began in late 2015, only one or two months after the relationship commenced, led directly to her continuing to work as an escort for him. Mr. Purcell punched and assaulted N.W., usually for not making enough money. At one point he punched her and slammed her head off the dashboard of his car, causing injuries to her face. On another occasion, he broke her nose when he thought she was withholding money from him. Photographs filed at trial show an older bruise on her arm, which was related to an assault around the time that she had an abortion only weeks before their final altercation.

73Mr. Purcell threatened to kill N.W. “if [he] ever [caught her] working for anybody else, or making money for anybody else”. This very serious threat would have been terrifying for N.W. However, it also demonstrates the direct control that Mr. Purcell exercised over her and the totally exploitative nature of the relationship from late 2015 until May 28, 2016. N.W. was forced to work for his benefit on an almost daily basis.

74It was not entirely clear how much money N.W. handed over to Mr. Purcell, but the evidence showed she worked multiple days every week. Mr. Purcell would have profited in the thousands of dollars over this time period.

75Mr. Purcell also purposely exercised indirect control over her movements with manipulation and violence to intimidate N.W. so that he would continue to profit from her work as an escort.

76While N.W. was recovering from an abortion, he forced her to continue to provide escort services. He rejected her request to do other labour because it would not have been lucrative enough to meet his needs. The evidence showed he assaulted her at that time. The bruises on her arm, recorded in the photographs taken by police three weeks after their final altercation, show how she was forced to work as a prostitute against her own wishes.

77Mr. Purcell was directly involved in furthering her prostitution. He knew she was 16 years old, but made efforts to ensure that she was continually working and making profits for his benefit. He showed her how to post ads on the internet and to accept payment electronically. He drove her to out-calls. Most importantly, when she was unable to work out of hotels any longer, Mr. Purcell directed her to work at the brothel at George’s Place. That introduced her to an entire new form of escorting and further exploitation, all done to further Mr. Purcell’s profits.

78Mr. Purcell used N.W. in his other criminal endeavours as a drug mule. The evidence showed that he caused N.W. to travel by bus to Sudbury carrying crack cocaine, while he drove his own car. This ensured that, if caught, he would not be arrested in possession of the drugs, but she would. This is a prime example of his exploitative conduct, using her as an object in any way he saw fit to make his money without any regard for her safety or criminal liability.

79It is aggravating that this offender caused N.W. to suffer emotional trauma. As I stated earlier in my reasons, her victim impact statement shows that N.W. suffered greatly as a result of Mr. Purcell’s behaviour. Her pride and dignity were taken from her. She came to believe that all “she was good for was sex”. She thought of killing herself, believing that Mr. Purcell loved her, but he instead exploited her. She abused drugs and alcohol after the events. She has suffered severe emotional trauma as a result of these events.

80The final significant aggravating factor is the physical trauma N.W. suffered as a result of the prior assaults, including a broken nose and many bruises. As a result of the May 28, 2016 assault, which brought their relationship to an end and brought her plight to the attention of the police, N.W. suffered 10 stitches to her knee, bruising all over her body, split lips, and bruises to her face. She was unable to walk for three weeks. She has plainly suffered severe physical and emotional trauma as a result of these events.

(iii) Sentences Imposed upon Similarly-Situated Offenders

81Sentencing under Canadian criminal law is a highly-individualized exercise, but as a general principle of sentencing, a sentence for a particular offender should be similar to sentences imposed upon similar offenders for similar offences committed in similar circumstances.[38] I therefore found it to be of assistance to have the benefit of the sentences handed down in other similar cases in determining whether the MMS of five years would be grossly disproportionate if applied to the offender in the circumstances of this case.

82In considering that issue, I note that this offence was first introduced in 2005, but before that time, the violent exploitation of sex trade workers was typically addressed under the traditional prostitution offence of Living on the Avails of Prostitution. As such, and given that there was no mandatory minimum sentence upon conviction for the offence of Human Trafficking under s. 279.01 prior to 2014, sentences imposed prior to 2005 and prior to the introduction of the MMS in 2014 provide helpful indication as to what was considered a proportionate sentence prior to the introduction of the “inflationary floor” created by the MMS.

83However, it is also important to remember the 2014 decision of the Supreme Court of Canada in Bedford and its impact on the sentencing process. Bedford recognized and raised awareness to the plight of sex trade workers in Canada. It caused a fundamental shift in Parliament’s approach to the prosecution of prostitution-related offences and human trafficking in Canada. The focus shifted to protecting vulnerable sex trade workers from the significant degree of exploitation to which they are often subjected. Thus, following Bedford, the focus of any sentence imposed for a prostitution-related human trafficking offence must be the protection of sex trade workers and the strong denunciation and deterrence of like-minded individuals from engaging in such conduct in the future.

84Going right back to the 1997 decision in Tang, the Alberta Court of Appeal was faced with an appeal from a 5-year sentence by an offender sentenced for the offence of Living on the Avails of Prostitution committed in respect of two child sex trade workers.[39] The Court upheld the sentence for a first-time offender in a case where there was a lack of violence.

85In R. v. Bennett[40], the Ontario Court of Appeal reduced an eight-year sentence to a six-and-a-half-year sentence for an offender who was convicted of a number of offences where he pimped and preyed on young people for his own financial gain. While the Court of Appeal reduced the overall sentence imposed, the Court took no issue with the five-year minimum sentence being imposed on Mr. Bennett for his actions of living off the avails of prostitution in relation to a 12-year-old victim, where she engaged in only one act of prostitution. Additional aggravating facts in that case include that Mr. Bennett, a man in his 20s, offered to be the 12-year-old victim’s boyfriend and they lived together for two weeks. When the victim indicated that she did not want to continue working as a prostitute, Mr. Bennett slapped her and pushed her on the bed. Moreover, Mr. Bennett was convicted of living off the avails of a 16-year-old girl whom had also been his girlfriend and of attempting to procure a 15-year-old girl into prostitution. The Court of Appeal held that a global sentence of six-and-a-half years was appropriate for all these offences. Again, it would appear that the violence in the case at bar far exceeds that in the Bennett case.

86In 2008 in R. v. Mfizi[41], Thorburn J. addressed the sentencing of a 27-year-old offender who had been found guilty after trial of the offences of Living on the Avails of Prostitution (Person Under 18), Procuring (2 counts), Aiding, Abetting or Compelling Prostitution, Assault (3 counts), and Assault with a Weapon (2 counts). The offender had first encountered the victim when she was 17 years old. They became a couple. Shortly thereafter he convinced her to engage in sex trade work and once she began to do so, he “controlled her movements through violence and intimidation”.[42] The offender had assaulted the victim on numerous occasions and she was deeply traumatized as a result. Mr. Mfizi had a troubled background and a criminal record, but his record did not include any prostitution-related offences. The Court concluded that a sentence of eight years in custody was warranted for the Living on the Avails of Prostitution (Under 18) count and imposed concurrent sentences for the remaining offences. I find that case has many similarities to this case, but the period of time of the exploitation is much shorter than is present here, and the violence in Mfizi (while humiliating to the complainant) did not include the bodily harm suffered by N.W. in this case.

87In 2013, in R. v. McPherson[43], a sentence of only three years was imposed on the offender who was convicted of procuring his 19-year-old girlfriend to become a prostitute and he controlled her movements for a year and a half. She turned all her earnings over to him. There was no evidence of violence, although there were threats against a different victim. There was a significant disparity in age between them, the accused being 32 at the time and 13 years older than the victim. He also had a minor criminal record.

88In 2014, in R. v. Byron[44], a sentence of six years was imposed. The victim in Byron was 17 years old, and quite vulnerable, as she was a ward of the Children’s Aid Society. She was forced to work as an escort over many months, was moved to multiple cities by Mr. Byron to find clients, was threatened and assaulted by Byron, and he destroyed her health card. Nude photographs of the young victim were posted online. Mr. Byron was not a youthful first-time offender and was on a judicial interim release at the time that he committed the offence of human trafficking, but it is noteworthy that the violence inflicted in this case on N.W. greatly exceeded that in Byron.

89In R. v. R.R.S.[45], Aitken J. addressed the sentencing of a 33-year-old offender found guilty after trial of the offences of Human Trafficking, Material Benefit from Human Trafficking, Withholding Documents to Facilitate Trafficking (s. 279.03), Assault, Utter Threat, and Breach of Undertaking. The victim was a 21-year-old female who had worked as an exotic dancer and an escort prior to meeting the offender. The relationship between the victim and the offender commenced as a romantic one. Shortly into the relationship, the offender suggested that the victim should engage in sex trade work in order for them to purchase a condominium and a vehicle. He convinced her that she would earn more money if she worked with him and he promised to keep her safe. She agreed. Shortly after the arrangement began, the offender’s treatment of the victim changed. He became threatening and physically abusive when she refused to work on his terms. He took all of the proceeds from her sex trade work, doling out small amounts to ensure her dependence upon him. This conduct carried on for a period of four months. Aitken J. concluded that a sentence of five years’ imprisonment was appropriate for the Human Trafficking offence, with concurrent sentences imposed in respect of all other counts.[46] The matter was appealed but the imposition of the five-year sentence for this offence was not challenged.[47] Once again there are similarities to this case, but R.R.S. did not involve a victim under the age of 18. That must be regarded as a significant aggravating factor in this case.

90The sentence I imposed in R. v. A.S.[48] appears, at present, to represent the upper-end of the range of sentence imposed for the offence of Human Trafficking. However, that was an entirely different case from this one. It involved trafficking a young and troubled Indigenous woman for four years and during that time, he subjected her to horrific abuse, including the cutting of her Achilles tendon, resulting in permanent injury, and then threw her into a dumpster and fled the jurisdiction. He had an “atrocious” criminal record. Were it not for the significant Aggravated Assault component of the offender’s behaviour, I would have imposed a sentence of eight years’ imprisonment for the Human Trafficking and related counts, but concluded that when the Aggravated Assault was considered under the umbrella of the offender’s exploitation of the victim, an appropriate sentence was one of twelve years’ imprisonment for the Human Trafficking offences with a further year to be served in respect of a count of Choking Overcome Resistance. That case, in regards to the circumstances of the human trafficking, was materially worse than this and lasted years longer.

91Also, in 2017, in R. v. D.A.[49], the offender was sentenced to three-and-a-half years after developing a relationship with the complainant and exploiting her as a prostitute for 90 days. There was violence, which included D.A. and a companion striking and kicking the victim and breaking her finger when she went to a restaurant for something to eat. The offender took all of her money. He did not recruit the victim to become a prostitute. He had no criminal record.

92Most recently, in 2018, in R. v. A.E.[50], Boswell J. commented on the changing nature of the range of sentence for Human Trafficking cases, finding that the range has elevated to be between four and eight years. At paragraph 65, he observes that:

Having canvassed the authorities provided to me by counsel, I conclude that it is, as I noted, extremely difficult to define a usual range for the offence of human trafficking. Again, this is largely due to the variety of circumstances in which the offence may be committed. The yardsticks are far from settled, particularly in view of the imposition in 2014 of mandatory minimum sentences. It would appear that prior to 2014, the range was probably two or three years at the bottom end to six or seven years at the top end, depending of course on the aggravating and mitigating circumstances of the case. Since 2014, the floor has been elevated and I would say, provisionally, that the usual range appears now to be roughly four to eight years, again depending on the aggravating and mitigating circumstances present.

93Finally, I would specifically note that the five cases provided to me by defence counsel at the July 5 continuation of this sentencing hearing, including R. v. A.E. and R. v. R.R.S. above, all contemplate sentences in the five to six year range: see also R. v. Salmon[51], R. v. Lopez[52], and R. v. Crossdale.[53]

(iv) Conclusion on the Fit Sentence

94In considering the fit sentence to impose in this case, I have had careful regard for these earlier decisions. I have compared the circumstances present in those cases with those that are present here. At the end of that analysis, I find that this offender’s repeated acts of violence, his breach of the victim’s trust, his skilful manipulation of the victim’s emotions, and the duration and scale of his exploitation of N.W. place him somewhere between the offender in Mfizi and the offender in Byron on a scale of moral culpability. I find the two cases put forward by the defence, R. v. McPherson and R. v. D.A., to be out of line with the more customary range of sentence for offences of that degree of gravamen. I decline to follow them.

95As such, before pre-sentence custody credit and the application of two personal but important considerations described below, I would have found a sentence of 7 years to be a proportionate sentence for this offender for the offence of Human Trafficking a Person under 18 years. For those further reasons, as explained below, I have determined that the fit sentence for this offender in all of the circumstances is six-and-a-half years of imprisonment, before pre-sentence custody credit. It follows that I find that a sentence of five years’ imprisonment would not be grossly disproportionate in this case. On the first stage of analysis relative to the proportionate sentence for the particular offender, the Charter challenge fails.

(v) The Proposed Reasonable Hypotheticals

[96] While I am satisfied that the fit sentence in this case, before credit, would otherwise be one of six-and-a-half years’ imprisonment, and therefore neither grossly disproportionate nor a violation of this accused’s s. 12 Charter rights in this case, the constitutional issue here is considerably more complex.

97On one hand, there may be some merit to the hypotheticals put forward by defence counsel as reasonable. On the other hand, I have continued to experience concern that at least one of the hypotheticals may not be objectively reasonable in the circumstances of this offence and the human trafficking provisions. This case is distinct from the circumstances in R. v. Robitaille[54]. Justice McKelvey relied on Robitaille as a reasonable hypothetical in R. v. Safieh[55] with the agreement of both counsel, which caused the Court to strike down the MMS for procurement. I will address this concern at the end of this section.

98As I have noted, where the constitutionality of a MMS is challenged I am also required to consider reasonable hypotheticals to determine if the MMS may be grossly disproportionate in those circumstances. In assessing what conduct might reasonably be caught under s. 279.011(1), there are certain elements that must be met. Specifically, the provision requires a heightened mens rea that includes not just the intention to commit the operational conduct, but also that the conduct be committed intending that the conduct is for the purposes of exploiting a young person or for the purpose of facilitating the exploitation of a young person. Persons who indirectly contribute to the trafficking of persons without that requisite intent will not be captured by this provision.[56]

99To repeat, s. 279.011(1) requires me to determine that the element of exploitation is present. In doing so, I am required to consider, among other factors, whether the accused (i) used or threatened to use force or another form of coercion; (ii) used deception; or (iii) abused a position of trust, power or authority.

100A critical part of finding whether an individual is captured by s. 279.011(1)(b) relates to the presence or absence of an exploitative purpose relative to the victim. The Court of Appeal commented at paragraph 70 of R v. A.A.[57] on the requirements that underlie a finding of exploitation is defined in s. 279.04 of the Code:

Section 279.04 instructs us that one person exploits another if they cause that other person to provide labour by doing something that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide the labour. On a straight-up reading of this definition of exploitation, three conclusions emerge:

i. the expectation of the specific belief engendered by the accused’s conduct must be reasonable, thus introducing an objective element;

ii. the determination of the expectation is to be made on the basis of all the circumstances; and

iii. the person’s safety need not actually be threatened.

In essence, for there to be exploitation, an accused’s conduct must give rise to a reasonable expectation of a particular state of mind in the victim.

101In oral submissions, defence counsel proposed two hypothetical scenarios—only the second of which was discussed in greater detail and responded to by Crown counsel.

102The first hypothetical put forward by the defence relates to a situation wherein an offender exploits a young person within the meaning of s. 279.011(2), but the actual offence only lasts for a short period of time, such as a couple of hours, or perhaps a day or two. In that hypothetical, the elements of the offence are still made out, but as the defence argues, the circumstances are plainly more mitigating than a situation where the offender is exploiting the young person for months or years at a time, as has been the case in several of the reported decisions.[58]

103The second hypothetical proposed by the defence is based on the facts of the Ontario Superior Court decision in Safieh[59], which drew a hypothetical based on the facts in the decision in Robitaille.[60] That scenario contemplates a young offender who is a sex trade worker herself, but who assists in the exploitation of an underage minor for prostitution. It is assumed that the offender has herself been the subject of exploitation. The summary of the hypothetical based on Robitaille relied on by the defence was as follows:

104Ms. Robitaille was found guilty of receiving material benefit from sexual services of two minors pursuant to s. 286.2(2) of the Criminal Code. At the time of the offences, Ms. Robitaille was a sex trade worker and was charged jointly with another defendant, who was her pimp. Ms. Robitaille believed herself to be in love with her pimp. She assisted her pimp, who forced a minor to work as a prostitute. Ms. Robitaille provided instructions to the minor about how to act with customers, what type of services to perform and other relevant information about how to engage in prostitution. She also shared with her pimp some of the proceeds of this prostitution. With respect to the other count, Ms. Robitaille contacted a minor who was 16 years old at the time and spoke about her work as an escort. She facilitated the recruitment of this individual and instructed her on how to dress and what to do. After the minor left the hotel where she had been placed, Ms. Robitaille telephoned and sent text messages to her demanding that the victim return to the hotel. At the time of these offences, Ms. Robitaille was 18 ½ years old.

105The decision also describes Ms. Robitaille’s background. When she was approximately 16 years old she started to work in the sex trade. She suffered numerous acts of sexual violence in her childhood. According to an expert psychologist who assessed Ms. Robitaille prior to the sentencing hearing, Ms. Robitaille was unable to empathize with her victims. She was only able to see them as her competition. According to the expert, Ms. Robitaille’s prior history of sexual abuse and victimization in the sex trade interfered with Ms. Robitaille’s judgment. The trial judge in this case found that at the time the offences occurred, while Ms. Robitaille was an adult, she was still being sexually exploited.[61]

106Dealing with the second hypothetical first, Crown counsel rejected the defence contention that Robitaille is a reasonable hypothetical, on the basis that it related to a procurement charge under s. 286 of the Code, which is a very different offence from that contemplated in s. 279.011. Crown counsel argued that it is the requirement for exploitation, as defined under s. 279.04, that creates a distinction that would make it challenging for such a hypothetical to occur.

107Specifically, in order for this hypothetical to be reasonable, the hypothetical offender in this situation would herself need to have been exploited and, in turn, based on that exploitation, have had the purpose to and to have caused the victim to reasonably believe that the victim’s safety was being threatened, failing which the offence would not be made out.

108In determining whether that finding could be made in order to make out the offence, I would be required to look at the factors under s. 279.04(2), and specifically, whether the hypothetical offender used or threatened to use force or another form of coercion, used deception, or abused a position of trust, power or authority.

109In support of its submission, the Crown refers to the actions taken by Ms. Robitaille, including that she assisted the pimp, provided instructions to the victim as to how to act and what services to provide, and shared the proceeds of the prostitution with the pimp. While these actions may very well make out the offence of procurement, the Crown argues that they do not meet the threshold required to be meet the elements of “exploitation” as required under the human trafficking offences. In other words, the action or conduct of a hypothetical offender such as Ms. Robitaille may not give rise to a reasonable expectation of a particular state of mind in the victim.

110That may be correct. However, while it is an unusual fact pattern, and may arguably go beyond the boundaries of reasonability, I see no reason why the facts in Robitaille could not reasonably extend to embrace a person who exploits another, by the use or threatened use of force or another form of coercion, by the use of deception, or by abusing a position of trust, power or authority, and yet who is herself exploited and in a position of agency to a so-called principal exploiter.

111The reason is that it appears, on its face, that the definition of exploitation is not precise. It is arguably vague and overbroad, and lacking specificity as to what constitutes an exploitative relationship. It is necessary, but arguably possible to make out the elements, where the state of mind of the victim is the core of the exploitation within the parameters established in A.A. Those parameters establish that the belief of the victim must be reasonable, but that belief can also be informed by circumstances. Importantly, an individual’s safety need not actually be threatened.

112In determining whether the exploitative relationship is established, personal circumstances of the reasonable hypothetical offender must also be considered. These potentially include gender, socio-economic background, whether the hypothetical offender is a member of a marginalized or racialized group, or has mental illness or disability, or whether drugs or alcohol are involved.

113These would or could all be factors or characteristics that could impact whether the imposition of the MMS on a hypothetical offender in a principal-agent human trafficking scenario could be grossly disproportionate. Another factor that provides no escape valve to avoid the MMS in a human trafficking sentencing is that there is no ability to proceed summarily.

114The wider the range of conduct and circumstances captured by the MMS, the more likely it is that it will apply to offenders for whom the sentence would be grossly disproportionate. As noted above, McLaughlin C.J. makes the point in Lloyd at paragraphs 24 and 35 as follows:

This Court has established a high bar for finding that a sentence represents a cruel and unusual punishment. To be "grossly disproportionate" a sentence must be more than merely excessive. It must be "so excessive as to outrage standards of decency" and "abhorrent or intolerable" to society: Smith, at p. 1072, citing Miller v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. 680, at p. 688; Morrisey, at para. 26; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14. The wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate.

As I have already said, in light of Nur, the reality is this: mandatory minimum sentences that, as here, apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge. This is because such laws will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional. If Parliament hopes to sustain mandatory minimum penalties for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences.[62]

115I find these passages helpful in resolving the concern I experienced relative to what constitutes a reasonable hypothetical.

116Turning, finally, to the first hypothetical, I find that it provides a good and very simple example of how an MMS that can be more than justified in many circumstances, can easily become grossly disproportionate in a particular reasonable set of circumstances.

117The first hypothetical put forward by the defence was a situation wherein an offender exploits a young person within the meaning of s. 279.011(2), but the actual offence only lasts for a short period of time, such as a couple of hours, or perhaps a day. In that hypothetical, the elements of the offence and the necessary exploitation are still made out, but as the defence argues, the circumstances are plainly more mitigating than a situation where the offender is actually exploiting a young person for months or years at a time.

118One can easily envision how such circumstances could arise. Assume that a young teenaged girl is interested in performing escort services from time to time. She wants to do so to pay for her drug habit and because her home life with argumentative and abusive parents is a living hell. The teenaged girl comes into contact with two young men who persuade her to come with them to a local hotel and have sex with them. They then tell her that they will obtain clients for her to provide sexual services, that she must service those clients, and that she will give half of her earnings to them for the “assistance” they provide to her. If such facts were found, regardless of how long the relationship lasted, it appears to me that these facts could make out the elements of the offence of human trafficking of a person under 18, provided the teenaged girl reasonably and objectively feared for her safety.

119This exact scenario arose before me several years ago. The girl, who was actually just over 18 years of age, had sex with both of the young men. They were somewhat abusive to her. Although they apparently did not cause her actual harm, a day after this arrangement was put in place, the teenaged girl became fearful for her safety and fled from their control while the two young men were not paying attention. She went and reported the circumstances to the police. The two young men were charged with human trafficking, but not of a minor.

120The matter never proceeded to trial. Despite the charges, the matter was resolved with pleas by the two men to a lesser charge. While I believe the matter could have proceeded under the charge as laid, and that the elements of the offence could potentially have been proven, I accept that in those kinds of circumstances, a MMS of five years for an offence lasting only a few hours or a day or two would be grossly disproportionate. Rather, those would be circumstances where the more abbreviated sentences in R. v. McPherson and R. v. D.A., above, or even shorter sentences would be appropriate.

121Let me return to my concern relative to reasonable hypotheticals. It is very difficult to determine when a hypothetical is reasonable and when it is not. The case law tells me that this remedy should be granted only sparingly. Demonstrating a breach of s. 12 of the Charter is “a high bar”[63] and we have been admonished to “be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation.”^[64]

122The MMS must be more than merely disproportionate or excessive, but instead be so excessive as to outrage standards of decency and be abhorrent or intolerable to society.[65] Because the test is stringent and demanding, only on “rare and unique occasions”[66] will a sentence infringe s. 12. Nevertheless, as the Supreme Court explains in Lloyd, “the wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate.”[67]

123Yet, as McKelvey J. makes clear at paragraphs 34-47 of Safieh, referencing the factual scenario in Robitaille, the hypothetical described there is neither speculative nor far-fetched. As defence counsel describes the difference, the facts there and here are just slightly different spots on the same continuum. That may be partially true, but the Crown describes it differently. The Crown argues that the requirement of exploitation of the victim causes the scenario in Robitaille to differ materially.

124This important difference is acknowledged in paragraphs 57-58 of my Reasons for Judgment, which state, in part, as follows:

57. The fundamental difference between Count one and Count three is the element of exploitation. The human trafficking offences require that the influence be exercised for the purpose of exploitation or facilitating the exploitation of the person. Exploitation is defined in s. 279.04 of the Code [reference to para. 70 of R. v. A.A. omitted].

58. In essence, for exploitation to be found, an accused’s conduct must give rise to a reasonable expectation of a particular state of mind in the victim. In this case, N.W. testified that she believed her safety would be threatened by Mr. Purcell, if she did not perform the acts or provide the sex trade labour that she did. On numerous occasions during her testimony, she said that she felt that if she did not work as directed by Mr. Purcell, that she would be harmed. That is the additional element that is required for the two human trafficking offences found in counts one and two.

125It is the presence of the exploitation that causes the offences to be different, and it is thus the element of exploitation to which Crown counsel says this MMS is a reasonable and measured response. While Ms. Robitaille was convicted of procuring, she cannot be convicted of trafficking because there was no exploitative conduct present there. There was no evidence there of exploitation, which is the element in the trafficking offence that causes and must cause the victim to believe their safety is threatened.

126I accept Crown counsel’s position that the facts in Robitaille, on its own, do not provide a reasonable hypothetical for the purposes of s. 279.011(1). At the March 5 continuance of the sentencing hearing where the constitutionality arguments were made, I had the following exchange with counsel:

THE COURT: So there could be no reasonable hypothetical that would not include the existence of that state of mind because the Court of Appeal defines that state of mind as being the core of exploitation, and there can be no conviction under 279.01 absent exploitation as defined in that provision, is that correct?

MR. TICE: That’s right.

127Nevertheless, I can conceive of the Robitaille facts, extended slightly to include an agent offender who has fear for his or her safety due to the exploitative trafficking of the principal, and who in turn exploits a third person victim, for his or her own benefit. If evidence supported a reasonable objective belief that the offender’s safety was threatened by a principal, and that agent himself or herself induces a belief in the third party that their safety is threatened, I accept that that would be a reasonable hypothetical. In such a case. I also accept that the MMS could be grossly disproportionate if the agent offender exhibited the same kinds of characteristics as Ms. Robitaille, and induced fear for safety in the third party who is exploited, even if only at the behest of the principal.

128Further, the first scenario presented by defence counsel is one that is not merely hypothetical, but rather one I have personally seen, but which was resolved without a trial and without the imposition of the MMS.

129I accept that in virtually all circumstances of human trafficking, the five-year minimum sentence should be regarded as a reasonable and rational response by Parliament to a horrific crime that amounts, at its heart, to human slavery. I fully expect, as the jurisprudence shows, that most examples of human trafficking will properly yield sentences of between four and eight years of imprisonment. Indeed, I have concluded that a sentence in excess of five years is not only fit, but also absolutely necessary for this offender in the circumstances of this case.

130Nevertheless, in the end, I am persuaded that there are at least two reasonable hypotheticals where the imposition of the MMS would be grossly disproportionate. For these reasons, I have concluded that the five-year MMS contemplated in s. 279.011(1) of the Code violates the offender’s right under s. 12 of the Charter. It remains to consider whether that violation can be saved under s. 1.

(vi) Section 1 Charter Analysis

131The position taken by Crown counsel on the constitutionality of the MMS is stated in paragraphs 3 and 4 of Part I of its Responding Factum. The essence of that position is that that the MMS of five years in custody mandated by s. 279.011(1)(b) does not offend s. 12 of the Charter but is instead a reasoned and measured response to the universally reprehensible crime of human trafficking of a person under the age of 18 years. In this case, based on Crown counsel’s contention that a sentence of seven years imprisonment is warranted, Crown counsel contends that the imposition of the MMS of five years in custody upon the Applicant would, therefore, not result in a sentence that is grossly disproportionate. However, the Crown took no position on whether the MMS in this case could be saved under s. 1 of the Charter in the event the MMS was found to have violated s. 12 of the Charter.

132In Nur, the accused was charged with possession of a loaded prohibited firearm. The MMS in that case was a one-year jail term for a first offence (if the Crown proceeded summarily) and a three-year jail term for a first offence and five years for second and subsequent offences (if the Crown proceeded by indictment), under s. 92(2)(a) of the Code. But the Supreme Court noted that where a section is found to be in breach of s. 12 of the Charter, it is the Crown’s burden to show that the law has a pressing and substantial objective and that the means chosen are proportional to that objective. At paragraph 11, the Supreme Court wrote:

A law is proportionate if (1) the means adopted are rationally connected to that objective; (2) it is minimally impairing of the right in question; and (3) there is proportionality between the deleterious and salutary effects of the law: R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103.

It will be difficult to show that a mandatory minimum sentence that has been found to be grossly disproportionate under s. 12 is proportionate as between the deleterious and salutary effects of the law under s. 1.[68]

133So too in Lloyd, the Supreme Court considered a one-year MMS for the offence of possession for the purpose of trafficking Schedule I drugs. In a very brief analysis, consisting of only 3 paragraphs,[69] the SCC found, as in Nur, that there was an important objective rationally connected to the MMS, but concluded that the Crown had failed to meet their burden of showing that there was a minimal impairment on the accused’s s. 12 rights[70], given that the law applied to a wide range of situations of varying moral blameworthiness, yet “without differentiation or exemption”.[71]

134More importantly in this context, however, the Supreme Court found that the Crown had not met its burden of persuasion, writing that:

Nor has [the Crown] shown that the impact of the limit on offenders deprived of their rights is proportionate to the good flowing from their inclusion in the law.[72]

135Perhaps most apropos in present circumstances is the Court of Appeal decision in R. v. Morrison[73], where, like here, the Crown did not provide any submissions on s. 1. As a result, the Court did not address the Oakes test and simply declared the impugned provision as unconstitutional under s. 12.

136In concurring reasons, Karakatsanis J. states at para. 188:

The Crown has not argued that the mandatory minimum sentence required by s. 172.1(2)(a) is demonstrably justified in a free and democratic society. Indeed, it is difficult to imagine how a mandatory minimum sentence which is found to be grossly disproportionate because it outrages our society's standards of decency could represent a justifiable infringement under s. 1 of the Charter (see Nur, at para. 111). I would therefore conclude that the mandatory minimum sentence in s. 172.1(2)(a) is unconstitutional.[74]

137In light of the Crown having made no submissions before me that a finding that the MMS in this case could be saved by s. 1 if found to be in violation of s. 12, I find support in these authorities for my conclusion in this case. For these reasons, I have concluded that the five-year MMS contemplated in s. 279.011(1) of the Code is unconstitutional for violation of s. 12 of the Charter and cannot be saved under s. 1, and accordingly formally declare the section to be of no force and effect, pursuant to s. 52(1) of the Constitution Act.

Conclusion and Disposition

138I have concluded that the fit global sentence for this offender for the human trafficking offences, including the threats and assaults, would otherwise call for the seven-year sentence advocated by the Crown.

139There are, however, three important factors that cause me to reduce the sentence in this case. The first is the pre-trial custody and related credit for the offender. Defence counsel explained why 12 months of pre-sentence custody credit is justified. That includes days in custody on a 1.5:1 basis, additional credit for 42 days of full or partial lockdown at the Toronto South Detention Centre, and Downes credit for house arrest terms that bound him before his bail was revoked. I agree.

140Second, I consider Mr. Purcell’s very unfortunate and rudderless early circumstances to be circumstances that should call for a reduction in the sentence in his case.

141Third, while it is already taken into account in part by Mr. Purcell’s credit for pre-sentence custody, I have reduced the sentence for my own contributions to the inordinate length of time it has taken to move from the findings of guilt in October 2018 to the imposition of sentence today. A significant part of that delay was caused by the fact that I was on medical leave for some months, from November 2018 until May 2019, apart from a three-week period in late January when I first learned of the constitutional challenge and a date in March when I heard the first part of sentencing submissions. The second part took place in June. In my view, it would have increased Mr. Purcell’s anxiety over his sentence by being forced to wait that extended period of time to learn his fate and begin to commence serving his sentence. So, I have also taken that factor into account in arriving at the remaining sentence of five-and-a-half years that I plan to impose.

142Akeil Purcell, will you please stand up.

143I sentence you as follows:

(i) On Count 1, the offence of human trafficking of a person under 18 years of age under s. 279.011, after taking account of 12 months of pre-sentence credit, I sentence you to five-and-a-half years of imprisonment.

(ii) On Count 2, deriving a material benefit from Human Trafficking of a Minor under s. 279.02, you are sentenced to serve four years concurrent to count 1.

(iii) Counts 3 and 4 are stayed.

(iv) You are sentenced to serve 12 months concurrent on count 5, Uttering a Threat to Cause Death (s. 264.1(2)(a)), and

(v) For the two counts of Assault Causing Bodily Harm under s. 267(b) relating to two different events as set out in counts 6 and 7, the first involving assaults during the time leading up to the final event, and later for the assaults perpetrated on May 28-29, 2017, I sentence you to 12 months and 18 months, respectively, also to be served concurrently.

144The following ancillary orders will also go:

(i) an order for the taking of bodily substances that are reasonably required for the purpose of performing forensic DNA analysis pursuant to s. 487.051 of the Criminal Code. (Human Trafficking under 18 years (s. 279.011(1)(b)), Material Benefit under 18 years (s. 279.02(2)), Assault Bodily Harm (s. 267(b)), Threatening Death (s. 264.1(1)(a));

(ii) an order pursuant to s. 109 of the Criminal Code prohibiting the Offender Applicant from possession of any of the items listed in that section for a period of 20 years;

(iii) an order pursuant to s. 743.21 of the Criminal Code prohibiting the Offender from communicating directly or indirectly with N.W. while he is serving his sentence, and

(iv) an order…

Michael G. Quigley J.

Released: As of July 31, 2019

COURT FILE NO.: CR-17-50000678-0000

DATE: 20190731

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and –

AKEIL PURCELL

REASONS FOR SENTENCE

Michael G. Quigley J.

Released: As of July 31, 2019

11974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

2Criminal Code, R.S.C. 1985, c C-46 [Code].

3R. v. Miller, [1997] O.J. No. 3911 (S.C.), at paras. 33-36; R. v. A.A., 2012 O.J. No. 6256 (S.C.), at para. 33; R. v. Burton, 2013 ONSC 3021, at para. 10.

4Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, United Nations, 15 November 2000, Respondent’s Application Record.

5Legislative Summary, Bill C-49: As Act to Amend the Criminal Code (Trafficking in Persons), Respondent’s Application Record.

62013 SCC 72 [Bedford].

7Ibid, at paras. 4, 130-132, 137-138, 146-147.

8Ibid at paras. 136, 140.

9House of Commons Debates, 41st Parl, 2nd Sess, Vol 147 No 101 (11 June 2014) at 1700 (Hon. Peter McKay); House of Commons Debates, 41st Parl, 2nd Sess, Vol 147 No 122 (3 October 2014) at 1010 – 1100; Respondent’s Application Record.

10Ibid.

11R. v. Nur, 2015 SCC 15 at para. 44 [Nur].

122018 ONSC 4468 [Safieh].

132018 ONSC 7207.

142017 ONCJ 22 [Finestone].

152016 SCC 13 [Lloyd].

162018 SCC 58, at paras. 45-46.

17Nur, supra note 11, at paras. 46, 77.

18Ibid, at para. 43

19R. v. Drumonde, 2019 ONSC 1005 [Drumonde].

20Finestone, supra note 14, at paras. 59, 74-76.

21Nur, supra note 11 at paras. 40-41; see also: R. v. Morrisey, 2000 SCC 39, at para. 28.

22Lloyd, supra note 15, at para. 45.

23R. v. Guiller (1985), 1985 CanLII 5996 (ON SC), 48 C.R. (3d) 226 (Ont.), at p. 238.

24Lloyd, supra note 15, at para. 24.

25Nur, supra note 11 at para. 39; Lloyd, supra note 14, at para. 60. See also R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045 [Smith].

26Lloyd, supra note 15, at para. 24, citing R. v. Morrisey, 2000 SCC 39, at para. 26; see also R. v. Ferguson, 2008 SCC 6, at para. 14.

27Lloyd, supra note 15 at para. 60, citing Steele v. Mountain Institution, 1990 CanLII 50 (SCC), [1990] 2 S.C.R. 1385.

28Drumonde, supra note 19; Lloyd, supra note 14, at paras. 9-10; R v. Forcillo, 2016 ONSC 4896, at para. 2.

29Nur, supra note 11, at paras. 50, 51.

30Ibid, at para 58.

31Ibid, at para 54.

32Ibid, at paras 72-76.

33Ibid, at para. 68.

34Ibid, at paras. 56-75

35R. v. Q.B., (2003) 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (C.A.) at para. 36.

36R. v. Tan, 2008 ONCA 574 at paras. 30-33; R. v. Marshall, 2015 ONCA 692 at paras. 45-53.

371997 ABCA 174 at para. 11 [Tang].

38Code, supra note 2 at s. 718.2(b).

39Tang, supra note 36.

402004 CanLII 36124 (ON CA), [2004] O.J. No. 1146 (C.A.) [Bennett].

41[2008] O.J. No. 2430 (S.C.) [Mfizi].

42Ibid, at para. 5.

432013 ONSC 1635.

442014 ONSC 990 [Byron].

452015 ONSC 7749 [R.R.S.].

46Based on the timing of his offences, the offender in R.S.S. was not subject to a mandatory minimum sentence for the offence of Human Trafficking.

47R. v. R.S.S., 2017 ONCA 141.

482017 ONSC 802 [R v. A.S.].

492017 ONSC 3722.

502018 ONSC 471.

512019 ONSC 1574.

522018 ONSC 4749.

532019 ONCJ 3.

542017 ONCJ 768 [Robitaille].

55Safieh, supra note 12.

56Finestone, supra note 14; R v. Beckford, 2013 ONSC 653.

572015 ONCA 558.

58See e.g., R. v. A.S., supra note 48, where the exploitative conduct of an adult prostitute extended over three to four years.

59Safieh, supra note 12.

60Robitaille, supra note 54.

61Safieh, supra note 55, at paras. 34-35.

62Lloyd, supra note 15, at paras 24, 35.

63Lloyd, supra note 15, at para. 24.

64Nur, supra note 11, at para. 39; Lloyd, supra note 11, at para. 60. See also Smith, supra note 25.

65Lloyd, supra note 15, at para. 24, citing R. v. Morrisey, 2000 SCC 39.), at para. 26; see also R. v. Ferguson, 2008 SCC 6at para. 14.

66Lloyd, supra note 15, at para 60.

67Ibid, at para 24.

68Nur, supra note 11, at para. 111.

69Lloyd, supra note 15, at paras. 48-50.

70As per the second branch of the Oakes test.

71Lloyd, supra note 15, at para. 49.

72Ibid.

732017 ONCA 582, at para. 136, overturned on appeal: 2019 SCC 15, but the s. 12 issue was not addressed by majority.

74R v. Morrison, 2019 SCC 15, at para. 188.