CITATION: R. v. Ahmed et al., 2019 ONSC 4822
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
David Rogers and Robert S. Thomson, for the Crown
- and -
AMINA AHMED
Defendant
- and -
AND NADIA NGOTO
Tobias Okada-Phillips and Paul Lewandowski, for the Defendant Amina Ahmed
Cedric Y.L. Nahum for the Defendant Nadia Ngoto
Defendant
HEARD: April 15-18, 2019
RULING ON CONSTITUTIONAL CHALLENGE TO S. 279.011 OF THE CRIMINAL CODE OF CANADA AND REASONS FOR SENTENCE
M. R. LABROSSE J.
Overview:
1On November 9, 2018, Amina Ahmed and Nadia Ngoto were found guilty of two counts of recruiting two persons under the age of eighteen years, namely M.J. and J.F., for the purpose of exploiting or facilitating the exploitation of those persons, contrary to s. 279.011 of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”). Ms. Ahmed was also found guilty of knowingly advertising an offer to provide sexual services for consideration contrary to s. 286.4 of the Code.
2Both Ms. Ahmed and Ms. Ngoto were found not guilty of exercising control, direction, or influence over the movements of the complainants (s. 279.011 of the Code), nor were they found guilty of procurement (s. 286.3(2) of the Code). There were also not guilty findings with respect to offences related to uttering threats and possession of methamphetamine.
3As part of the sentencing proceedings, both offenders presented applications seeking a declaration that the mandatory minimum sentence of five years under s. 279.011 of the Code violates s. 12 of the Canadian Charter of Rights and Freedom, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter), and that the mandatory minimum sentence be declared of no force and effect under s. 52 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. The offenders also challenged the wording of s. 279.011 of the Code as overbroad and contrary to s. 7 of the Charter.
4At the sentencing hearing, all parties raised the applicability of s. 718.3(7) of the Code that provides for consecutive sentences for sexual offences against children. In addition, Ms. Ahmed sought to amend her application to challenge the constitutionality of s. 490.012 of the Code that makes s. 279.011 a designated offence requiring compliance with the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”).
Relevant Facts:
5The complainants, M.J. and J.F., rented a room at a University of Ottawa residence and met the offenders early in the morning of July 21, 2016. The complainants partied with the offenders and two other men. They were told by the offenders to tell the men that they were 19 years of age. The following morning, the complainants accompanied the offenders to run errands and returned to Ms. Ahmed’s apartment. They were shown a room with a bed and were offered the option of taking a shower and choosing fresh clothing to wear. Ms. Ahmed then took photographs of the complainants with the assistance of Ms. Ngoto, who showed one of the complainants how to pose.
6Following the taking of photographs, the two complainants were told that they would go to a barbecue in Gatineau. When they arrived at the home, there was no barbecue. There were men present including the two men who were at the hotel the previous night. While in Gatineau, the complainants started to feel uncomfortable, as they were being touched by some of the men and criticized for not being very friendly.
7The complainants told the offenders that they were tired and wanted to return to the apartment to rest. The offenders agreed, and the complainants returned to the apartment with the offenders and five of the men who were at the barbecue. They were told to get some rest, as they had a long night of work ahead of them, and they would be going to the casino. The complainants were uncomfortable and asked if they would be forced to have sex with anyone that they did not want to have sex with. They were told no.
8The complainants had discussions with the two women about how long they could stay with them. Essentially, they were told that they could remain as long as they wanted, provided that they behaved and did not “piss them off”. The girls were asked if they wanted to make money and were subsequently told that they would work and go to the casino.
9The complainants also testified that the women told them that they could get them some work, but there was no evidence of the type of work the girls were expected to do.
10The complainants wanted to leave, but they were concerned that the adults present would get upset at them if they said they wanted to leave. The complainants testified that they were afraid of the men present in the apartment. While in the room, one of the men told the girls that they should not be on their phones, and that they should be resting.
11The complainants texted a police officer with the missing persons unit and called 911. The Ottawa Police Services (OPS) eventually located them in the building at 340 Gloucester Street. After the accused became aware of the police presence around the building, they agreed to help the complainants leave the building and get to the South Keys Shopping Centre. While trying to leave the building, the OPS officers found the complainants and led them into a police cruiser.
12The court’s finding of guilt was focussed on the issue of recruiting and the fact that the complainants were told that they would “work” in a discussion involving both offenders. The court concluded that the evidence was sufficient to establish that Ms. Ahmed posted the photographs of the complainants on the website www.backpage.com from her cellular telephone, and that Ms. Ngoto equally acted as a principal with Ms. Ahmed in posting the photos.
13The court concluded that the evidence did not support a finding of actual exploitation, but that s. 279.011 of the Code criminalizes the preliminary or preparatory conduct that is done with a purpose of exploiting vulnerable persons. After considering the entire picture, the court concluded that the offenders were in the process of grooming the complainants to provide labour in circumstances in which the complainants would believe that their safety would be threatened if they failed to provide the labour. They were preparing the complainants for escorting.
The Law – Sections 7 and 12 of the Charter
Relevant Statutory Provisions
14Section 279.011 of the Code states:
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
15Sections 7 and 12 of the Charter provide for the following:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
Section 7
16Both offenders challenge s. 279.011 of the Code on the basis that the section violates s. 7 of the Charter in that the impugned section is overbroad.
17As set out in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 55, a claim of infringement under s. 7 of the Charter entails a two-stage analysis. First, the applicant must show that the impugned law interferes with, or deprives her of, her life, liberty or security of the person. Once she has established that s. 7 is engaged, the applicant must then show that the deprivation in question is not in accordance with the principles of fundamental justice.
18When considering if the deprivation in question is not in accordance with the principles of fundamental justice, the jurisprudence on this issue has focussed on three principles: laws must not be arbitrary, overbroad, or have the consequences that are grossly disproportionate to their object: see Carter at para. 72.
19The Supreme Court of Canada explained overbreadth a number of recent cases starting with R. v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 112-113:
112Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts. For instance, the law at issue in Demers required unfit accused to attend repeated review board hearings. The law was only disconnected from its purpose insofar as it applied to permanently unfit accused; for temporarily unfit accused, the effects were related to the purpose.
113Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others. Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose. For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual. Enforcement practicality may be a justification for an overbroad law, to be analyzed under s. 1 of the Charter.
20In R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180, at para. 14, the Supreme Court of Canada described the overbreadth test as follows:
50It is a principle of fundamental justice that a law that deprives a person of life, liberty, or security of the person must not do so in a way that is overbroad. In other words, the law must not go further than reasonably necessary to achieve its legislative goals.
21When the provision in question is found to be overbroad, the analysis then moves on to determine if the infringement is justified under s. 1 of the Charter.
Section 12
22The Supreme Court has set out the approach to be followed in determining what constitutes cruel and unusual punishment under s. 12 of the Charter. In R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, the court set a high bar for what constitutes cruel and unusual punishment. A sentence attacked on this ground must be grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender.
23In Nur, the Supreme Court of Canada specified the analytical framework that is applicable to a determination of what is a cruel and unusual punishment:
39This Court has set a high bar for what constitutes “cruel and unusual . . . punishment” under s. 12 of the Charter. A sentence attacked on this ground must be grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender: R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1073. Lamer J. (as he then was) explained at p. 1072 that the test of gross disproportionality “is aimed at punishments that are more than merely excessive”. He added, “[w]e should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation”. A prescribed sentence may be grossly disproportionate as applied to the offender before the court or because it would have a grossly disproportionate impact on others, rendering the law unconstitutional.
24Later, in R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, the Supreme Court of Canada highlighted the need for deference for the decisions made by Parliament at para. 45:
45Parliament has the power to make policy choices with respect to the imposition of punishment for criminal activities and the crafting of sentences that it deems appropriate to balance the objectives of deterrence, denunciation, rehabilitation and protection of society. Courts owe Parliament deference in a s. 12 analysis…
25In addition, in order to be “grossly disproportionate”, a sentence must be more than merely excessive. It must be so excessive as to outrage the standards of decency and be abhorrent or intolerable to society: see: Lloyd at para. 24.
26At para. 46 of Nur, the Supreme Court sets out the process to be followed in a challenge to a mandatory sentencing provision. First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Code. Second, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. If the answer to that question is yes, the mandatory provision is inconsistent with s. 12 and will fall unless justified under s. 1 of the Charter.
27In determining what constitutes a proportionate sentence for the offence, the Court may consider, “reasonable hypotheticals”. The court may look not only at the offenders’ situation, but also to other reasonably foreseeable situations in which the impugned law may apply. Only situations that are “remote” or “far-fetched” are excluded. The court goes on to state that the inquiry into reasonably foreseeable situations, “may take into account personal characteristics relevant to people who may be caught by the mandatory minimum but must avoid characteristics that would produce remote or far-fetched examples”: see Nur at para. 76.
28A number of factors may inform the gross disproportionality analysis, both as it applies to the particular accused and to reasonable hypotheticals: see R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at paras. 27-28. The factors identified are:
i. the gravity of the offence;
ii. the personal characteristics of the offender;
iii. the particular circumstances of the case;
iv. the actual effect of the punishment on the individual;
v. the penological goals and sentencing principles reflected in the challenged minimum;
vi. the existence of valid effective alternatives to the mandatory minimum; and
vii. a comparison of punishments imposed for other similar crimes.
Analysis: Section 7 of the Charter
Does the Law Infringe the Right to Life, Liberty and Security of the Person?
29The first step of the s. 7 analysis was not challenged in these proceedings. When imprisonment is a potential penalty, a liberty interest under s. 7 of the Charter will be engaged.
30Therefore, in order for s. 279.011 of the Code to comply with s. 7 of the Charter, the deprivation of liberty must be done in accordance with the principles of fundamental justice. The only principle of fundamental justice relied on by the applicants is the principle against overbroad laws.
The Purpose of s. 279.011 of the Code
31The first step in the overbreadth inquiry is to determine the object or purpose of the impugned provision. The second step is to determine whether the law deprives individuals of life, liberty or security of the person in cases that do not further that object.
32To determine the object or purpose for an overbreadth analysis, courts look to (1) statements of purpose in the legislation, if any; (2) the text, context, and scheme of the legislation; and (3) extrinsic evidence such as legislative history and evolution: see Safarzadeh‑Markhali, at para. 31.
33When considering the purpose of s. 279.011, Ms. Ngoto describes it in two ways: (1) to prevent and combat trafficking in persons, to punish such traffickers, and to protect the victims of such trafficking, especially women and children and, (2) to hold all individuals involved in, or associated with a human trafficking scheme of a person under the age of eighteen years criminally responsible for trafficking.
34As for Ms. Ahmed, she relies on the Bill C-49, An Act to amend the Criminal Code (trafficking in persons), 1st Sess., 38th Parl., 2005, and describes the objective as being to protect vulnerable persons and combat human trafficking.
35The Crown does not provide any analysis of the purpose of s. 279.011 but relies specifically on the analysis in R. v. D’Souza, 2016 ONSC 2749, 339 C.C.C. (3d) 494 and R. v. Beckford, 2013 ONSC 653, 276 C.R.R. (2d) 26.
36In D’Souza, the court concluded at para. 165 that the purpose of s. 279.011 and other related provisions of the Code was “to prevent human trafficking and protect vulnerable persons, especially women and children, by criminalizing a wide range of conduct aimed at exploiting them”.
37In R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485, at para. 28, the Supreme Court of Canada made the following comments applicable to the determination of the purpose of a law:
28The appropriate level of generality for the articulation of the law’s purpose is also critically important. If the purpose is articulated in too general terms, it will provide no meaningful check on the means employed to achieve it, almost any challenged provision will likely be rationally connected to a very broadly stated purpose (see, e.g., Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 77). On the other hand, if the identified purpose is articulated in too specific terms, then the distinction between ends and means may be lost and the statement of purpose will effectively foreclose any separate inquiry into the connection between them. The appropriate level of generality, therefore, resides between the statement of an “animating social value” — which is too general — and a narrow articulation, which can include a virtual repetition of the challenged provision, divorced from its context — which risks being too specific: Carter, at para. 76. An unduly broad statement of purpose will almost always lead to a finding that the provision is not overbroad, while an unduly narrow statement of purpose will almost always lead to a finding of overbreadth.
38Thus, the statement of purpose should generally be both precise and succinct.
39In determining the objective of a legislative provision, the court is to begin with the statements of purpose in the legislation and the text, context, and scheme of the legislation. In this case, none of the parties directed the court to any statements of purpose that are relevant to the overbreadth analysis, as there are no such statements of legislative purpose in Bill C-268, An Act to amend the Criminal Code (minimum sentence for offences involving trafficking of persons under the age of eighteen years), 3rd Sess., 40th Parl., 2010. In Bill C-49, the summary is more extensive and provides a description of acts that fall under exploitation.
40It should be noted that the wording “or facilitating their exploitation” was included in the 2005 amendment that brought in s. 279.01 and that it was maintained in the 2010 amendments that brought in s. 279.011.
41Otherwise, the parties did not direct the court to relevant issues surrounding the text, context, and scheme of the legislation.
42The focus on the submissions of the Applicants was on the extrinsic evidence at the time of adoption of both Bill C-49 in 2005 and Bill C-268 in the form of House of Commons Debates and Senate Debates. Some of the issues raised during the parliamentary/senate debates focussed on the minimum sentence of five years and how it prevented judges from dealing with different levels of moral blameworthiness. It was also raised that the wording of s. 279.011 will criminalize individuals who are already victims of human trafficking and who are required to recruit potential victims.
43I am of the view that Ms. Ngoto states the purpose of s. 279.011 too narrowly in focussing on the goal of punishing traffickers and holding all individuals involved in trafficking responsible. Conversely, Ms. Ahmed states the objective in a manner that is too general by limiting the objectives to protecting vulnerable persons and combatting human trafficking.
44Based on the record before me, I agree with and adopt the manner in which Conlan J. described the purpose of s. 279.011 in D’Souza as being to prevent human trafficking and protect vulnerable persons, especially women and children, by criminalizing a wide range of conduct aimed at exploiting them.
Is s. 279.011 of the Code overbroad?
45The court must now determine if s. 279.011 appears to criminalize some conduct that bears no relation to its objective, raising the spectre that s. 279.011 is overbroad.
46The hypothetical situations put forward by the Applicants are set out at paras. 48-57 of Ms. Ngoto’s factum and at para. 91 of Ms. Ahmed’s factum.
47The first two hypotheticals proposed by Ms. Ngoto and the hypothetical proposed by Ms. Ahmed involve victims of human trafficking who are aware of the human trafficking activities and who play minor roles in the exploitation. I am of the view that these minor roles were intended by Parliament to be caught by the wording of the offence created by s. 279.011, and that it cannot be said that these hypotheticals involve conduct that bears no relation to its objective. Even if these situations involve subordinates or persons with accessory roles who are involved in recruiting or facilitating, there is no basis to suggest that these scenarios involve individuals who have no moral blameworthiness. The issue is not with the wording of s. 279.011, but more particularly with the requirement to impose a five-year minimum sentence for conduct that has a low degree of culpability.
48Ms. Ngoto’s Hypothetical 3 relates to her own circumstances but proposes that “N.” has no knowledge of her pimp’s activities. As “N.” is truly unaware of the pimp’s conduct, the mens rea of the offence is not made out. Thus, the conduct does not criminalize behaviour that bears no relation to its objective, as “N.” could not be found guilty of the offence if she had no knowledge. Hypothetical 3 is therefore not of assistance, as there would be no offence if there is no mens rea.
49In the end, I agree with the conclusions in D’Souza and Beckford in which those courts found that in s. 279.011, the words “for the purpose of exploiting them or facilitating their exploitation” require that the purpose component is necessary to both exploiting and facilitating exploitation for the offence to be made out. As such, this is in keeping with the high degree of mens rea required in order for the offence to be made out.
50While I appreciate that the objective of the provision is to capture a wide range of activity that can be associated with facilitating human trafficking, this does not render the provision overly broad. Further, the fact that victims or subordinates already victimized by human traffickers can also fall under the ambit of “facilitating” exploitation does not capture conduct that bears no relation to its objective. These subordinates have a degree of moral blameworthiness that can result in a finding of guilt. The different levels of culpability are properly dealt with through the sentencing process.
51I conclude that the Applicants have not met their onus of showing on a balance of probabilities that s. 279.011 of the Code violates s. 7 of the Charter.
Analysis: Section 12 of the Charter
52As previously stated, the s. 12 analysis begins with determining what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Code. A number of factors can assist in informing the court in the gross proportionality analysis: see Morrisey at paras. 27-28.
(a) Circumstances of the offences
53I have already provided the factual background to these offences. At the sentencing hearing, Ms. Ngoto introduced evidence to address her relationship with Ms. Ahmed and how she considered herself as a subordinate of Ms. Ahmed. She presented evidence of her version of the events, however, the court made a ruling that portions of her December 11, 2018 affidavit were not admissible, as some of the evidence conflicted with findings made at trial: see R. v. Braun (1995), 97 Man. R. (2d) 172.
54Despite that ruling, the evidence of Ms. Ngoto is relevant to the sentencing process and the circumstances of the offence in that it gives insight into the relationship between Ms. Ngoto and Ms. Ahmed. This evidence portrays Ms. Ngoto as a subordinate to Ms. Ahmed and a victim of violence at the hands of both Mr. Aden and Ms. Ahmed.
55It was agreed at the sentencing hearing that the Crown was not relying on the evidence of Ms. Ngoto for the purpose of sentencing Ms. Ahmed.
56The main findings of the court that describe the circumstances of the offences are as follows:
i. Two women in their thirties meet two sixteen-year-old girls who are strangers to them and out on their own in the middle of the night and have been drinking. At least one of the girls is clearly drunk. The women use fake names;
ii. The two women bring the girls into their vehicle and accompany the girls to a hotel room and give them additional alcohol and speed. The women also invite two men to join them in the early morning to party;
iii. The girls are brought to an apartment, and photographs are taken of them by the women and posted on Backpage in an advertisement for sexual services. The girls are not advised of the use of the photographs;
iv. The girls are brought to hang out with a number of males, unknown to them. Some of these men touch in a sexual manner. The girls are introduced to the notion of frustration as a result of their lack of friendliness with the men they are introduced to. There is an element of fear introduced. They are told that they can remain in the apartment if they “behave” and “don’t piss us off”.
v. The girls are told that they must rest as they have to work later that evening and go to the casino. No details are given as to the nature of the “work”, however, when asked specifically if they will be required to have sex with men, the women react aggressively to the suggestion.
57This court concluded that the offenders were preparing the complainants for escorting and that the complainants were provided drugs by Ms. Ahmed.
(b) Circumstances of the offenders
58Evidence was provided at the sentencing hearing to inform the court on the personal circumstances and characteristics of the offenders. I deal with each separately.
Amina Ahmed
59Ms. Ahmed is 33 years of age and is the parent of one child, a seven -year-old boy. She was born in Kenya, Africa and came to Canada when she was approximately 10 years old. Her parents separated when she was 11 years old, and her father returned to Africa with some of her siblings when she was 15 years old. Following her father’s departure, she became rebellious. She struggled throughout high school with fighting, drug and alcohol use, and truancy, but did obtain a grade 12 level education. She also completed the first of a two-year General Arts & Science program at Algonquin College.
60She began working as an exotic dancer at the age of nineteen to financially support herself. She continued as an exotic dancer until approximately twenty-five years of age, at which time she started working as an escort and did so until her incarceration in August 2016.
61When she was 22 years old, Ms. Ahmed began a three-year relationship with a man who was abusive toward her. A son was born of this union, and he currently resides with his father. She has a history of drug and alcohol abuse since she was 18 years old.
62Ms. Ahmed remained incarcerated until the sentencing hearing when she was released on bail pending this decision. She spent a total of 986 days in custody from the time of her arrest to the sentencing hearing after a number of failed attempts to obtain bail. At the usual 1.5:1 credit, Ms. Ahmed had the equivalent of 1,479 days in custody, being slightly over a four-year sentence.
63Ms. Ahmed was detained at the Ottawa Carleton Detention Centre, typically for inmates on remand or on short sentence. She has made attempts to commence the rehabilitation process by doing weekly counselling with a social worker. The counselling was focused on her trauma from past abuse, depression and anxiety from her legal situation, and on how to make positive lifestyle changes. Ms. Ahmed filed a number of letters of support that attest to her desire to make positive lifestyle changes.
64When considering the aggravating and mitigating factors that relate to Ms. Ahmed, I highlight the following:
Aggravating factors
i. There were two victims who were both underage, although the evidence was that the complainants both said they were 16 years old. In reality, one was 14 and the other 15 (s.718.2(a)(ii.1) of the Code);
ii. The victims were particularly vulnerable as runaways, and they were given alcohol and drugs;
iii. They were deceived in various ways, including allowing their photographs to be taken and put on the internet.
iv. The victims were subject to the commencement of the grooming behavior when they were given a place to sleep and told that they would make money;
v. Ms. Ahmed’s criminal record is somewhat aggravating, although it is dated and not related to human trafficking.
Mitigating Factors
i. Ms. Ahmed has taken active steps while in custody to reach out through counselling and other supports and has shown some remorse. She has also attended some Alcoholics Anonymous and Narcotics Anonymous meetings while in custody;
ii. Ms. Ahmed is a former sex worker who participated in the escort business in an effort to cope with her past trauma. While the evidence is not disputed that Ms. Ahmed is a former sex worker, she did not provide specific evidence of the details regarding how she may have been victimized by those who participate in the industry such as pimps and other sex workers. She did report to having been sexually assaulted while working as an escort;
iii. She has demonstrated an intention to return to school and complete her degree from Algonquin College and has some supports.
65The evidence of Ms. Ngoto about Ms. Ahmed and how she treated Ms. Ngoto has not been relied upon by the Crown against Ms. Ahmed and as such those facts are not considered to be aggravating factors in relation to Ms. Ahmed.
Nadia Ngoto
66Nadia Ngoto filed two affidavits as part of these sentencing proceedings dated December 11, 2018 and March 29, 2019. As previously stated, portions of the December 11, 2018 affidavit were deemed inadmissible, but the affidavits are otherwise before the court and the admissible portions have been fully considered.
67Ms. Ngoto is 36 years of age and has four children all of whom remain in her care. She was born in Belgium from parents who were from the Congo. The family eventually moved to the United States where she met the father of some of her children and a co-accused, Mr. Aden Aden. She came to Canada in April 2006, sponsored by Mr. Aden, who is also her ex-husband. She left him because he was abusing her.
68Ms. Ngoto’s application for permanent residency was denied due to an incomplete application. She states that she has no nationality and no passport. She has since been working with an immigration lawyer, and on July 13, 2018, she received a work permit. She has since sought employment and was able to obtain work as a waitress for banquets and events.
69There has been a previous order made for Ms. Ngoto’s deportation from Canada, and she remains a temporary resident. She currently reports to the immigration office every two weeks. There are issues surrounding what would happen to Ms. Ngoto under a deportation order, as it would be dependent on her being accepted by the Congo.
70The evidence of Ms. Ngoto speaks to how she left Mr. Aden in 2009 because of domestic violence and began living in a family shelter. This is when she met Ms. Ahmed who introduced her to working in strip clubs and escorting. She states that their working relationship was not equal, as Ms. Ngoto was doing most of the escorting work, but Ms. Ahmed was retaining half the profits. She also describes how Mr. Aden came back into the picture and how both he and Ms. Ahmed were abusive to Ms. Ngoto. Ms. Ngoto turned to alcohol and drugs to numb her pain. Her children were apprehended by the Children’s Aid Society.
71After her arrest on these charges and her release in August 2016, Ms. Ngoto did not change her lifestyle. She was arrested again in July 2017 for breaching her conditions, uttering threats, and criminal harassment. She remained in custody until November 1, 2017.
72Following her release from custody, Ms. Ngoto professes to have turned her life around. She has provided evidence of her sobriety and taken courses to deal with her childhood traumas and the abuse she has suffered. She has attended Narcotics Anonymous.
73Ms. Ngoto’s children were returned to her on October 30, 2018, she has secured a home, and she works and volunteers at Harmony House. She also works with Harmony House as a spokesperson. She has provided various letters of support.
74When considering the aggravating and mitigating factors that relate to Ms. Ngoto, I highlight the following:
Aggravating factors
i. There were two victims who were both underage, although the evidence was that the complainants both said they were 16 years old. In reality, one was 14 and the other 15 (s.718.2(ii.1) of the Code);
ii. The victims were particularly vulnerable as runaways, and they were given alcohol;
iii. They were deceived in various ways, including allowing their photographs to be taken and put on the internet.
iv. The victims were subject to the commencement of the grooming behavior when they were given a place to sleep and told that they would make money;
v. Ms. Ngoto’s criminal record is somewhat aggravating, but it is not related to human trafficking.
Mitigating Factors
i. Ms. Ngoto has taken significant steps to reach out through counselling and other supports in an effort to better herself. She has also attended some Narcotics Anonymous meetings;
ii. Ms. Ngoto provided evidence that she is a victim of the sex industry, and that she was victimized by both Mr. Aden and Ms. Ahmed. She provided evidence on how she came to be involved in escorting;
iii. She has demonstrated an active desire to parent her four children, has secured accommodations for her family, and has reached out and participated with supports at Harmony House;
iv. Ms. Ngoto has expressed regret for her actions while taking some accountability. She also blames alcohol and drugs for contributing to her actions.
(c) Impact on the Victims
75Neither of the complainants have provided victim impact statements in these proceedings. While the Crown seeks for me to take judicial notice of the fact that the events of July 2016 had a profound impact on these two complainants, I am unable to do so. While I am unable to assume that the complainants were not impacted by these events, I conclude that the issue of impact on the victims is not relevant due to a lack of evidence.
(d) The Gravity of the Offence
76It is difficult to imagine any cogent argument to support a finding that s. 279.011 is not a serious criminal offence. As stated by the Court of Appeal, the seriousness of a crime is the product of the harm targeted by the elements of the crime and the moral culpability required to establish guilt for the crime. The greater the harm and the higher the moral culpability, the more serious the crime: see R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at para. 83.
77Under s. 718.01 of the Code, when a court imposes a sentence for an offence that involves the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
78In R. v. Safieh, 2018 ONSC 4468, 142 O.R. (3d) 592, McKelvey J. cited from R. v. Byron, 2014 ONSC 990, 39 C.L.R. (4th) 62, that when considering the seriousness of human trafficking:
36All cases of this nature must be taken very seriously. Young people must be protected from being trafficked, exploited and abused in this fashion. Sadly, in this era of social media and the use of the internet, the on line advertisements for sexual services continually victimize those who have been forced into prostitution against their will because it is impossible to remove those images from the internet. This is particularly tragic when the individual is a minor, as was IB.
79In Safieh, the court also highlighted the severe harm that can be caused even by the least serious cases of child trafficking by referring to R. v. Burton, 2013 ONSC 3021.
80When specifically considering s. 279.011 of the Code, the mandatory minimum sentence of five years is certainly indicative of how Parliament deems the seriousness of the offence. However, as found in this case, the offence is intended to criminalize a wide range of behaviour that involves both actual exploitation and actions that facilitate exploitation, including preparatory conduct. The evidence of the Senate debates filed in these proceedings demonstrates that the issues surrounded the minimum sentence, and that an adjustment of a sentence to be proportionate to the appropriate level of moral blameworthiness would not be allowed.
81However, in the case of s. 279.011, the objective was to criminalize a wide range of actions surrounding human trafficking, and some actions would be more serious than others. In the case of human trafficking, it is clear that there is a range of gravity that applies to the crime, and as such, a minimum sentence is inconsistent with the range of possible gravity of the crime targeted by s. 279.011.
82In Nur, the Court of Appeal identified the moral culpability as an important factor when assessing the gravity of the crime: see Nur at para. 86. The Court of Appeal acknowledged that there are a variety of culpable mental states, including intention, recklessness, and knowledge. An intention to bring about a prohibited consequence ranks at the top of the criminal law hierarchy of blameworthiness or moral culpability.
83In the present case, the broad sweep of conduct captured by the human trafficking offence is a significant part of the s. 12 of the Charter analysis. In Safieh, the accused had set out his plan for the complainants, although no prostitution occurred. While that court acknowledged that the gravity of the offence had been significantly reduced, the impact on sentence was not as great.
84While the actions of the offenders were part of the broad conduct targeted by the offence, the gravity of the offence attributable to the offenders is even lower than in Safieh. What is clear by the evidence at trial is that the offenders intended to introduce the complainants to the business of escorting. However, there is no evidence of how far the offenders would have gone. If the complainants resisted, would they have been forced? Would threats of violence have followed? Would the complainants have been allowed to decline? There is no evidence of the offenders’ plan, as was the case in Safieh. The evidence at trial suggests that Ms. Ahmed told the girls that they could live in her apartment, provided that they “behaved” and “don’t piss us off”. That is far from the threats and coercion that is often common in the escorting business.
85I conclude that the s. 279.011 offence is not necessarily a serious criminal offence in all circumstances and certainly less serious in the circumstances of these offenders.
(e) The Actual Effect of the Punishment on the Individual
86In the case of Ms. Ahmed, the amount of pre-trial custody has her credited with the equivalent of having served just over 4 years in custody. As the Crown is only seeking a sentence of between 5.5 to 6 years, the mandatory minimum sentence would likely cause Ms. Ahmed to serve between 1 to 1.5 years in jail.
87Conversely, Ms. Ngoto has a credit of 6 months for pre-trial custody, and given the Crown’s request for a sentence of 5 to 5.5 years, Ms. Ngoto could be facing a net sentence of 5 years, which would be the full mandatory minimum sentence.
88Furthermore, both offenders are parents of children, and the effect of the punishment would be to further separate them from their children. This could have impacts on custody arrangements, however, no specific evidence was provided on this issue.
89Finally, for Ms. Ngoto, there is the added effect on her immigration status, that will cause Ms. Ngoto to lose her right of appeal of a deportation order in the event she is sentenced for a period of more than 6 months.
90Although no evidence was presented as to the likelihood of parole for the offenders, I think that the evidence demonstrates that the offenders have made efforts to improve themselves over the past few years, and this is particularly the case for Ms. Ngoto. They would likely both be candidates for parole.
91It is clear for both offenders that there would be important negative effects flowing from the imposition of the mandatory minimum sentence.
(f) Penological Goals and Sentencing Principles
92When sentencing offenders, s. 718 of the Code directs sentencing judges to consider denunciation, deterrence, separation from society, rehabilitation, reparation, promotion of responsibility, and acknowledgement of harm done by offenders. As a fundamental principle, sentencing judges are also required to consider that punishment must be proportionate to the gravity of the offence or offences, and the degree of responsibility of the offender. The primary applicable principles in this case are deterrence and separation from society, but rehabilitation cannot be overlooked given that both offenders have been victims of the escorting business, and that they are still both relatively young.
93When imposing a sentence involving abuse of a person under the age of 18, s. 718.01 of the Code requires that the Court give primary consideration to the objectives of denunciation and deterrence of the conduct forming the basis of the offence.
94Section 718.1 of the Code directs that any sentence imposed must be proportionate to the gravity of the offence and the responsibility of the offender.
95Section 718.2 of the Code also includes a number of principles, such as taking into account aggravating and mitigating factors, that sentences be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, and that offenders should not be deprived of liberty if less restrictive sanctions may be appropriate.
96Having considered the generally accepted theories of punishment and sentencing applicable to this offence, the court must return to the gravity of the offence. As previously stated, while the offence of human trafficking is a very serious offence, the range of criminalized conduct has led this court to conclude that in these circumstances, the offences in question were far from the most serious crimes covered by the s. 279.011 offence. Specifically, these circumstances are in my view at the lower end of the applicable moral blameworthiness.
97Finally, I wish to specifically comment on the issue of rehabilitation. While it can be an error for a sentencing judge to rely too much on the potential for rehabilitation and neglect the statutorily imposed objectives of denunciation and deterrence, both offenders have demonstrated a willingness to take steps toward their rehabilitation, and I conclude that they are good candidates for rehabilitation. This is particularly the case for Ms. Ngoto, who has been very proactive during her release by taking active steps to demonstrate to the court that she has the desire to be rehabilitated and has started the process of rehabilitation.
(g) The Particularized Inquiry
98The final step of the analysis calls for a comparison between the mandatory minimum sentence of 5 years to the sentences that would be imposed under the present sentencing scheme save for the requirement of the mandatory minimum.
99In R. v. D. (D.) (2002), 58 O.R. (3d) 788 (C.A.), the Court of Appeal held that the overall message to be delivered to sexual predators who put the lives of innocent children at risk is that they will pay a heavy price. The message sent by the Court of Appeal is particularly relevant from a general deterrence perspective whereby that massage was made 17 years ago, and it is about time that human traffickers get the message.
100In R. v. Estrella, [2011] O.J. No. 6616 (Ont. S.C.), the female accused procured a 16-year-old high school student with another older male and introduced her to prostitution. The accused had a very active role in recruiting and training the 16-year-old victim, who actively worked as a prostitute. The accused received a 30-month sentence for human trafficking and 30 months concurrent for procurement.
101In R. v. Safieh, 2019 ONSC 287, the accused was found guilty of two counts under s. 286.3(2) of the Code (procuring a victim under 18) regarding two complainants. The accused was also found guilty of two counts of child pornography. It is relevant to highlight that in Safieh, there was no actual prostitution or sexual conduct that occurred. While the mandatory minimum was struck, the court sentenced the accused to two years for each procuring offence and one year for each child pornography offence for a global sentence of six years. The global sentence was a reflection of the application of s. 718.3(7)(b) of the Code and the requirement for consecutive sentences.
102In R. v. Finestone, 2017 ONCJ 22, 375 C.R.R. (2d) 311, the court ruled that the minimum sentence in section 279.011(1)(b) of the Code constituted cruel and unusual punishment on the basis of reasonable hypotheticals and did not apply the mandatory minimum. In Finestone, the victim was an actual participant in the escorting and serviced approximately 25 clients over one week. The accused was sentenced to four years on a guilty plea.
103In R. v. Robitaille, 2017 ONCJ 768, 400 C.R.R. (2d) 51, the court found that the s. 286.2 two-year minimum sentence for receiving a material benefit from the sexual services of a child was cruel and unusual punishment in relation to the otherwise fit eight-month sentence. The accused in that case was herself a sex worker employed by Mr. Finestone. In Robitaille, the accused had one complainant work privately for her and had her seeing five customers, including one for sexual intercourse, and the other complainant worked for Mr. Finestone.
Conclusion on the Proportionate Sentence
104Having considered all of the above factors, the personal circumstances of the offenders, the circumstances of the offences, the applicable principles of sentencing, and the principle of parity with other similar cases, I conclude that the level of moral blameworthiness places both offenders at the low end of relevant case law on sentencing for similar offences.
105In Safieh, the offender had a very specific plan for the victims; he lured them away from their homes and set out in detail how they would participate in human trafficking. The photographs he took of the victims were child pornography. His plan was detailed and demonstrated that he was going through with all of it, as appointments had been made for the victims to work as escorts. Further, he introduced the element of threat by talking of another victim who was beaten. Overall, the level of moral blameworthiness is higher on the facts of Safieh than they are in the present circumstances. This is clearly also the case in Finestone.
106Similarly, in Robitaille, the facts are more serious given the actual participation of the victims in prostitution. In addition, the sentence of eight months can be largely attributable to the fact that Ms. Robitaille was also a victim of human trafficking. With that said, the eight-month sentence in Robitaille does seem to be at the lower end of the range, although the facts may be more aggravating for an offence at the low end: see Safieh (2018) at paras. 39 and 46.
107With respect to Ms. Ahmed, her involvement in the subject offence does appear to be at a higher level of moral blameworthiness than Ms. Ngoto, but not significantly. While she was also a sex worker, it is not clear from the evidence if she worked for a pimp, or if she was otherwise forced to be a sex worker. The evidence of how she was victimized as a sex worker is less detailed than the evidence was in Robitaille. She was the person who posted the photographs on the escorting web page, and she did offer the complainants the opportunity to stay in her apartment if they behaved. However, the court is unable to conclude as to how far this plan would have gone if the complainants had resisted, or if the offenders would have carried through with it. The offences are really limited to preparatory conduct. I fix the applicable range for Ms. Ahmed between 12 to 18 months.
108With respect to Ms. Ngoto, she was found at trial to be a principle in the preparatory conduct but, her status as a victim of human trafficking has not been disputed. Her level of moral blameworthiness is lower than Ms. Ahmed's, and her active steps toward rehabilitation are obvious based on the evidence filed. Her level of victimization is also lower than the one in Robitaille. However, while keeping deterrence and denunciation as the primary objectives of sentencing, the prospects of rehabilitation are more evident for Ms. Ngoto. I fix the applicable range for Ms. Ngoto between 8 and 14 months.
Conclusion on Grossly Disproportionate
109Having determined what I deem to be a fit sentencing range for each offender without considering the mandatory minimum sentence, I must now determine if the mandatory minimum sentence of five years under s. 279.011 of the Code is grossly disproportionate to those ranges.
110There is no question that a mandatory minimum sentence of 5 years is disproportionate to the sentences in the range of 8 to 14 months and 12 to 18 months that are deemed fit for these offenders. The question is if they are grossly disproportionate.
111As previously stated, in order to be “grossly disproportionate”, a sentence must be more than merely excessive. It must be so excessive as to outrage the standards of decency and be abhorrent or intolerable to society: see: Lloyd, at para. 24.
112In these circumstances, I conclude that the mandatory minimum sentence is grossly disproportionate to the fit sentences for these offenders for the following reasons:
i. While the determination of a grossly disproportionate sentence is not a mathematical calculation, sentences between 8 and 18 months are less than half and could be less than one-third the mandatory minimum;
ii. Sentences between 8 and 18 months are reformatory in nature, while the mandatory minimum is a penitentiary sentence. Thus, the nature of the sentence changes, and in the case of Ms. Ngoto, she would be placed in a federal penitentiary. Penitentiary sentences are generally reserved for the most serious offenders or offences;
iii. The factual matrix surrounding these offences and the preparatory conduct attributed to the offenders would not be viewed by the general public as warranting a five- year sentence in a penitentiary. When presented with facts of the offenders working within the sex industry, even if the evidence of Ms. Ahmed as a victim is not as clear as the evidence of Ms. Ngoto, the members of the general public would in my view find a five-year sentence to be shocking, and such a sentence would outrage the standards of decency.
113Consequently, I find that the personal circumstances of these offenders justify a conclusion that the five-year minimum sentence provided for under s. 279.011 of the Code is a punishment that is cruel and unusual and thus violates s. 12 of the Charter.
114As a result of my conclusion that the mandatory minimum sentence is grossly disproportionate for both Applicants personally, there is no need for me to address the reasonable hypotheticals presented under the s. 12 arguments: see R. v. Morrison, 2017 ONCA 582 at para. 135.
Section 1 of the Charter
115Having determined that s. 279.011 of the Code violates s. 12 of the Charter, the court must now consider if the provision can be saved through s. 1 of the Charter. The Crown did not address this step in its materials.
116At this stage, the Crown bears the onus of demonstrating that a limit on a right or freedom guaranteed by the Charter is reasonable and demonstrably justified in a free and democratic society: see R. v. Oakes, [1986] 1 S.C.R. 103, at para. 66.
117In Nur at para. 111, the s. 1 analysis was described by the Supreme Court as follows:
In order to justify the infringement of the respondents’ s. 12 rights under s. 1 of the Charter, the Attorney General of Ontario must show that the law has a pressing and substantial objective and that the means chosen are proportional to that objective. 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] 1 S.C.R. 103 (S.C.C.). 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.
118In Nur, the Supreme Court of Canada acknowledged that although the connection was frail, there was a rational connection between mandatory minimum terms of imprisonment and the goals of denunciation and retribution.
119However, when considering the minimal impairment, I adopt the reasoning of the Supreme Court of Canada in Nur at para. 117:
117Parliament could have achieved its objective by drafting an offence with a close correspondence between conduct attracting significant moral blameworthiness — such as those engaged in criminal activity or conduct that poses a danger to others — and the mandatory minimum, rather than a sweeping law that includes in its ambit conduct attracting less blameworthiness for which the mandatory minimum sentence would be grossly disproportionate.
120Here, the objective of preventing human trafficking and protecting vulnerable persons, especially women and children, by criminalizing a wide range of conduct simply cannot accommodate a minimum sentence of five years. There is no ability to sentence offenders with less moral blameworthiness. The Crown has not discharged its onus of demonstrating an absence of less drastic means of achieving the objective.
121Having concluded that the five-year minimum sentence is grossly disproportionate to fit sentences for offenders with less moral blameworthiness, I do not find that the limits imposed are a proportionate justification under s. 1 of the Charter.
Conclusion on Section 12 Analysis
122The mandatory minimum sentence imposed by s. 279.011 of the Code violates s. 12 of the Charter and is not justified under s. 1 of the Charter. Section 279.011 of the Code is therefore declared of no force or effect under s. 52 of the Constitution Act, 1982.
The Appropriate Sentence for each Applicant
Amina Ahmed
123When considering Ms. Ahmed’s circumstances, I conclude that the level of her moral blameworthiness is less than the offender in Safieh. The plan in Safieh was fully detailed, focussed on profit, and was structured to proceed to actual prostitution. Also, the facts do not support sentences in the range of those cases in which actual escorting has taken place.
124Conversely, the evidence does not support that Ms. Ahmed is in the same circumstances as the offender in Robitaille in which the evidence revealed a much clearer picture of victimization.
125When considering the facts of the offences, Ms. Ahmed’s personal circumstances, including aggravating and mitigating factors, the focus on deterrence and denunciation, and the sentences imposed in other cases, I conclude that a fit sentence for this offender in these circumstances is 14 months for each count under s. 279.011 of the Code and 6 months concurrent for knowingly offering to provide sexual services for consideration for the count under s. 286.4 of the Code.
Nadia Ngoto
126While the Crown urges me not to be greatly influenced by Ms. Ngoto’s evidence on sentencing, I disagree. Ms. Ngoto was not challenged on her evidence and it was open to the Crown and to Ms. Ahmed to challenge the evidence that Ms. Ngoto was a victim of human trafficking. While I have not used that evidence as aggravating against Ms. Ahmed, the evidence is available to me as mitigating in line with the decision in Robitaille.
127As stated, in respect of Ms. Ahmed, I am of the view that the level of moral blameworthiness in the circumstances of these offences is lower than in Safieh and certainly when actual escorting takes place. However, the evidence of victimization does not attain the level shown in Robitaille.
128When considering the facts of the offences, Ms. Ngoto’s personal circumstances, including aggravating and mitigating factors, the focus on deterrence and denunciation, and the sentences imposed in other cases, I conclude that a fit sentence for this offender in these circumstances is ten months for each count under s. 279.011 of the Code.
Concurrent or Consecutive Sentences and Totality
129The court must now determine the effects of s. 718.3(7) of the Code and its applicability to the two sentences for each offender. That section reads:
Cumulative punishments — sexual offences against children
(7) When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct
(a) that a sentence of imprisonment it imposes for an offence under section 163.1 be served consecutively to a sentence of imprisonment it imposes for a sexual offence under another section of this Act committed against a child; and
(b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under section 163.1, be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than an offence under section 163.1.
130Neither Applicant included this section in their Notices of Application. Ms. Ahmed included it in her factum and framed the issue as follows:
Absent from the above is whether the consecutive sentencing regime in s.718.3(7)(b), which mandates consecutive sentences for a “sexual offence committed against a child”, violates s.12 of the Charter. If applicable to s.279.011, it would possibly mandate a 10 year sentence for Ms. Ahmed. If so, the Applicant challenges s.718.3(7)(b) as well.
131Otherwise, neither Applicant dealt with the constitutionality of this section in their written materials, and the matter was only briefly dealt with in argument. As for the Crown, it conceded that two 10-year sentences for these offenders would violate s. 12 of the Charter. However, if the mandatory minimum sentence was declared of no force or effect, the Crown’s position was that the provision remained valid.
132As a result of my determination of a fit sentence for each offender, the application of s. 718.3(7) of the Code results in a 28-month sentence for Ms. Ahmed and a 20-month sentence for Ms. Ngoto. Thus, the concern for 10-year sentences is not applicable, but the parties still made submissions on the applicability of this section generally.
133I am of the view that the constitutionality of s. 718.3(7) was not presented to the Court in a proper and detailed manner. No written submissions were made on the application of the s. 12 analysis, no legislative history was presented, and no examples of the application of this section were provided. To make a declaration of constitutionality with respect to this section on the record before the court would be improper.
134Absent a constitutional declaration, there are also questions surrounding the applicability of section 718.3(7). Does it apply in circumstances in which there is one criminal act committed simultaneously against two victims? In R. v. K.B., 2018 QCCQ 4362, the Quebec Superior Court framed the applicability of this section as follows:
The Legislator modified the Criminal Code. in 2015 and, as a consequence, when an accused is found guilty of sexual offences against a child, sentences imposed are to be served consecutively, but only when an offence under section 163.1 Cr. C. is concerned or when more than one offence is committed and involves more than one child, excluding an offence under section 163.1 (section 718.3 (7) Cr. C.
135In addition, in R. v. S.C., 2019 ONCA 199, 145 O.R. (3d) 711, the Ontario Court of Appeal dealt with s. 718.3(7) and highlighted that it is not to be applied mechanically:
17Second, the Criminal Code does not mandate a purely mechanical approach whereby all sentences governed by s. 718.3(7) must be simply added up and imposed. Both at trial and in oral argument before us, the Crown properly conceded that s. 718.3(7) is subject to the totality principle. Section 718.3(7) must be read together with s. 718.2(c) stating that “where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh.” In R. v. Ahmed, 2017 ONCA 76, 346 C.C.C. (3d) 504, this court dealt with s. 83.26 of the Criminal Code, which provides that a sentence other than one of life imprisonment, imposed on a person for a terrorism offence, must be served consecutively to any other punishment imposed on the person “for an offence arising out of the same event or series of events”. This court, following the Supreme Court of Canada in R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555, stated, at para. 79:
The totality principle is a particular application of the general principle of proportionality. It requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. Following M.(C.A.), the sentencing provisions in the Criminal Codewere amended. Proportionality was included as the fundamental principle of sentencing (s. 718.1) and sentencing courts were instructed to take into consideration the totality principle when imposing consecutive sentences to ensure that the combined sentence is not unduly long or harsh (s. 718.2(c)). The totality principle applies in sentencing persons convicted of terrorism offences. [Citations omitted.]
136While s. 718.3(7) of the Code was applied in Safieh, there is no indication that its applicability was put in question. Also, in the absence of a more fulsome record, I am unable to assess the interpretation of this section in K.B. where it was said that the section applied “when more than one offence is committed and involves more than one child”.
137I am left to apply the principle of totality and focus on the lower level of moral blameworthiness of these offenders. Also, it is relevant to consider that the offences represent one continuous criminal transaction simultaneously involving two children.
138To apply s. 718.3(7) of the Code in the present circumstances would cause the combined sentences to be unduly harsh and bring the overall sentences into the range of cases in which children are forced to become actual participants in the sex industry, or in which the preparatory steps to human trafficking are much more developed. The present circumstances are far from that.
139I conclude that the principle of totality requires an important reduction in the combined sentences closer to the individual sentences imposed. Thus, the combined sentence of Ms. Ahmed should be reduced to 18 months, and the combined sentence of Ms. Ngoto should be reduced to 11 months.
Additional issue – Constitutionality of s. 490.012(2) of the Code
140Finally, Ms. Ahmed requested to further amend her application in order to challenge the constitutionality of s. 490.012(2) and the mandatory SOIRA order. Ms. Ahmed stated that there was no escorting or sexual offence that took place, and that the section should not apply to acts that have not actually occurred.
141I agree with the Crown that this request must be summarily dismissed. There has been no notice given of this request; the Crown was not in a position to respond. As previously stated for section 718.3(7), it would be improper to make a finding on the constitutionality of this section on the record before the court.
Credit for Pre-Sentence Custody
142There was no dispute that both offenders are entitled to a credit of 1.5 to 1 ratio for days spent in pre-sentence custody.
143Ms. Ahmed had credit for 1479 days of pre-trial custody as of April 18, 2019, and then she was released on bail pending this decision. The sentence of 18 months results in Ms. Ahmed’s immediate release. As no submissions have been made on the terms of Ms. Ahmed’s probation, I will hear from the parties on this issue.
144Ms. Ngoto had credit for an equivalent of 175 days of pre-sentence custody, rounded to 6 months. Subtracting the pre-sentence credit of 6 months from the global sentence of 11 months yields a remaining sentence of 5 months. I will also hear from the parties on the terms of probation.
Ancillary Orders
145In addition, I impose the following ancillary orders:
Ms. Ahmed:
i. A mandatory 20-year SOIRA order pursuant to s. 490.013(2.1);
ii. A mandatory DNA order pursuant to s. 487.051(1);
iii. A s. 161(1)(a.1) order for life;
iv. A secondary s. 486.4 order.
Ms. Ngoto:
i. A mandatory 20-year SOIRA order pursuant to s. 490.013(2.1);
ii. A mandatory DNA order pursuant to s. 487.051 (1) ;
iii. A s. 161 order for 10 years.
Conclusion:
146For the reasons stated herein, the court orders that:
i. The applications in relation to s. 7 of the Charter are dismissed;
ii. The applications relating to s. 718.3(7) and 490.012 of the Code are dismissed;
iii. The applications in relation to s. 12 of the Charter are granted;
iv. Ms. Ahmed is sentenced to one day in jail after credit for 18 months pre-sentence custody subject to the ancillary orders set out herein and the terms of probation that were finalized on September 12, 2019;
v. Ms. Ngoto was originally sentenced to 11 months jail with the equivalent of 6 months served subject to the ancillary orders. At the conclusion of my decision summarized orally, counsel for Ms. Ngoto requested if the court would consider a conditional sentence. It has since been determined that a conditional sentence would not be available however Ms. Ngoto’s sentencing has been adjourned pending the Court receiving more evidence including the terms of her bail and immigration issues. Ms. Ngoto’s sentencing will be finalized in the upcoming weeks. Separate reasons will be provided for Ms. Ngoto’s sentence.
Honourable Justice Marc R. Labrosse
Released: 2019/09/23
CITATION: R. v. Ahmed et al., 2019 ONSC 4822
COURT FILE NO.: 16- R2009
DATE: 2019/09/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and –
AMINA AHMED
Defendant
- and -
AND NADIA NGOTO
Defendant
RULING ON CONSTITUTIONAL CHALLENGE TO S. 279.011 OF THE CRIMINAL CODE OF CANADA AND REASONS FOR SENTENCE
The Honourable Justice Marc R. Labrosse
Released: 2019/09/23