Court File and Parties

COURT FILE NO.: 18-19518 DATE: 2020/03/03 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – JALALEDIN EFTEKHAR Accused

Counsel: Anne Fitzpatrick and Ozlem Eskicioglu, for the Crown Ewan Lyttle, for the Accused

HEARD: February 21, 2020

SENTENCING DECISION

PHILLIPS J.

[1] Having been found guilty by a jury of four criminal offences, Jalaledin Eftekhar is before the court for sentencing. The offences are procuring contrary to s. 286.3(1), obtaining sexual services in exchange for consideration contrary to s. 286.1(1), common assault contrary to s. 266 and human trafficking or exploitation contrary to s. 279.01 of the Criminal Code.

The Positions of the Parties

[2] The Crown seeks a sentence of between 5.5 and 6 years, less pre-sentence custody of 170 days.

[3] The defence argues that Mr. Eftekhar is in a time served situation. It says that Mr. Eftekhar’s pre-trial credit ought to be augmented to 12 months given the impact of the release conditions. If any extra jail is called for, defence argues that a conditional jail sentence could be contemplated in the range of 3 to 6 months.

The Circumstances of the Offender

[4] Mr. Eftekhar is 59 years old. Born in Iran, he moved to Canada in 1997 in large part as a result of religious persecution. He has finished high school and thereafter completed some university credits. Possessed of a strong work ethic, he has always held employment. He is estranged from his wife, the mother of his two adult children. While he has the support of his son, his daughter no longer speaks to him as a result of this case. Mr. Eftekhar lives alone without dependents, working full-time as a pizza delivery driver. He has a short, non-violent criminal record.

The Circumstances of the Offences

[5] There is considerable disagreement between the parties as to the facts. It falls to me, therefore, to determine the basis upon which the jury found Mr. Eftekhar guilty. Of course, I must only act on any facts that could be considered aggravating if they have been established beyond a reasonable doubt. In the circumstances, given that both the complainant and Mr. Eftekhar testified in such different ways, I must perform a full WD analysis to come to see the facts as asserted by the Crown. Mr. Eftekhar is not held to that high standard.

[6] Mr. Eftekhar’s basic assertion is that his culpability is on the low end because he interacted criminally with the complainant for only a short time and she was a very independent-minded person who gave as good as she got. Mr. Eftekhar submits that the complainant would have engaged in sex work on her own, in any event, and that he never profited from her activities. In essence, he argues that he was always motivated to stop her from engaging in prostitution and was generally used by her and not the other way around.

[7] I do not see things Mr. Eftekhar’s way. Indeed, I reject his evidence wherever it conflicts in any meaningful sense with that of the complainant. I agree with the jury’s verdict that the evidence established beyond a reasonable doubt that Mr. Eftekhar engaged in sexual relations with the complainant. His denial of that clearly established and basic fact operates to the decimation of his credibility generally. I found the complainant to be completely reliable and honest. She resisted many opportunities to make things worse for Mr. Eftekhar and showed herself to be credible. I accept her evidence absolutely at the beyond a reasonable doubt standard. The fact that Mr. Eftekhar’s account so differs from hers is another reason why I reject his evidence.

[8] While there is evidence that the complainant was assertive, defiant and mature, I take all of her conduct in that regard with a massive grain of salt. The complainant was still a teenager at the material time. Mr. Eftekhar was in his mid-50’s. She is of indigenous heritage, from the far north. She testified to having been sexually abused as a child and was in Ottawa after having essentially run away from home. While she does have a sister in town, the complainant was effectively on her own. As such, she, a young Inuit woman alone in a large southern city, was extraordinarily vulnerable. Mr. Eftekhar’s age, maturity and relative economic status would have carried authority and influence and he surely would have appreciated that obvious fact. There was a drastic power imbalance. To the extent that the complainant was presenting as a hard, street-smart operator, she was putting on a front. Mr. Eftekhar could not have believed that she was as strong and worldly as she pretended to be. He would have seen that she was an out-of-school unemployed Inuit teenager living in a big southern city without parental guidance. She was ripe for exploitation and he knew it.

[9] I accept the complainant’s evidence that it was Mr. Eftekhar who got her into prostitution in the first first place. He exposed her to it in the sense of introducing her to other girls who used his apartment for sex work and indeed he was her first customer. While it is true that the complainant did quite a lot of the eventual activities on her own, Mr. Eftekhar was the original impetus. Throughout, he was controlling and domineering. I agree with the jury that Mr. Eftekhar came to intend for her to feel that her safety would be threatened if she did not continue to engage in sex work at his apartment.

[10] I reject Mr. Eftekhar’s evidence that he was motivated by good intentions in his exploitation activity. What I mean is that I reject his contention that all he wanted was for the complainant to quit sex work and return home. While he did periodically express such a wish, I find in the totality of the evidence that he was always primarily motivated for selfish purposes toward enjoying something he valued – power and control over a woman.

The Relevant Law

[11] This is a case involving the exploitation of a vulnerable young person. It speaks to activity that furthers the public scourge of prostitution, an industry that primarily affects marginalized women and girls. I take the view that the principal sentencing objectives are denunciation and deterrence.

[12] Of course, sentencing is an individualized process and no two cases are exactly the same. Nonetheless, I see value in looking to other sentences to discern the approach taken in respect of generally similar instances. To that end, I agree with Campbell J. who noted in R. v. Lopez, 2018 ONSC 4749, [2018] O.J. No. 4145 (S.C.J.) that:

In terms of the range of sentences that are appropriate for pimping offenses, Canadian courts have generally accepted that, in cases like the present one, where the accused has coerced someone into becoming or remaining prostitute and exercised a significant degree of control over her activities, sentences of four or five years are typically imposed. General deterrence, denunciation and specific deterrence are said to be the paramount sentencing consideration. Even longer sentences have been imposed and upheld in more aggravating circumstances.

[13] An example of this range imposed in circumstances akin to the case at bar would be R. v. R.R.S., 2016 ONSC 109, [2016] O.J. No. 241 (S.C.J.) where the offender was sentenced following a trial on offenses which included human trafficking and receiving a material benefit. He trafficked one 19-year-old victim for a period of five months. The offender and victim were in a romantic relationship. The victim had done sex work before meeting the offender. He was 33 years old at the time of sentencing and had a prior criminal record. The sentence was five years for human trafficking and three years concurrent for the receiving of a material benefit. On appeal the sentence was varied but only regarding credit for pre-sentence custody.

[14] I shall also note that I am aware that just because the principal sentencing objectives are denunciation and deterrence, it is not as if other variables like rehabilitation are irrelevant. Mr. Eftekhar has decent rehabilitative prospects. I accept that he feels remorseful and that his involvement in this sort of activity is unlikely to occur again. Also, I note that consistent with the admonition in R. v. Priest, I am to impose only what jail is absolutely necessary and not a day more.

The Aggravating and Mitigating Factors

[15] I note the following as aggravating factors:

• The complainant hails from a marginalized community and was obviously quite vulnerable at the material time. The Victim Impact Statement makes clear the significant effect Mr. Eftekhar’s conduct had on her;
• The offences involved violence, both threatened and real. To extricate herself from Mr. Eftekhar’s grip the complainant had to endure an assault;
• The principal exploitation offence occurred over a considerable amount of time. While it did not last for many months it most certainly was not an hours-long or otherwise rashly decided course of action. Mr. Eftekhar would have had plenty of time to weigh his options before every act and communication.

[16] I see the following as mitigating factors:

• Mr. Eftekhar has only a short and unrelated criminal record. It would still be the case that jail would have a very significant effect on him;
• Mr. Eftekhar has good rehabilitative prospects. He feels remorse. He continues to enjoy support from his son. His track record of consistent employment would indicate that he will forever have the ability to contribute to society through lawful employment;
• Mr. Eftekhar did not receive a material benefit from the complainant’s sex work activities as that term is defined in law;
• This is a conviction after a trial. I note this deliberately under mitigation because it is in no way an aggravating factor. At the same time, the mitigation that could have been available to Mr. Eftekhar after a guilty plea is not now his to enjoy.

Sentence

[17] After balancing all of the variables and in particular acting on the principle of restraint, I have decided that Mr. Eftekhar shall be sentenced to a period of 4 years on the exploitation count. In my judgment, in all the circumstances, only a sentence of that length could adequately denounce the misconduct here. Mr. Eftekhar sought to threaten a vulnerable person’s sense of safety in order to compel her to continue sex work in a way in line with his preferences regardless of hers. That sort of exploitation is a very serious crime requiring a very serious sanction.

[18] I do, however, come to the view that the other counts should be dealt with by concurrent sentences. Notwithstanding that they relate to separate delicts, I have concluded that the totality principle would make a sentence of any more than four years unduly harsh. It seems to me that rehabilitation is still a worthy goal here and that more than 4 years is simply not required to make the point to Mr. Eftekhar and the broader public that needs making on these facts.

[19] On the s. 286.3(1) procuring count, Mr. Eftekhar is sentenced to 2 years concurrent. On the s. 286.1(1) count my sentence is 3 months concurrent. On the s. 266 count my sentence is 6 months concurrent.

Pre-sentence Custody

[20] I accept the joint submission that with the usual 1:1.5 ratio applied to Mr. Eftekhar’s 113 days of pre-sentence custody he is entitled to 170 days of custody credit.

[21] Mr. Eftekhar further submits that he should receive some credit for the time he spent on judicial interim release. In that regard, he notes that he was required to live in a group home and could not come and go from it as he wished. He shared a bedroom and bathroom and had to cook and live by a schedule not his own. He points out that his privacy, dignity and liberty interests were significantly compromised by those conditions, conditions that were called for largely because of a sexual assault charge, which charge resulted in an acquittal.

[22] I agree with Mr. Eftekhar in terms of his characterization of his release conditions and that he should get some credit for the time he spent on them. They were extraordinarily onerous and consequential. I note that pursuant to R. v. Downes, [2006] O.J. No. 555, I am to structure a result that I deem just in the circumstances. There is no magic formula.

[23] I have decided to credit Mr. Eftekhar with a total of 12 months of pre-sentence custody (these 12 months include the aforementioned 170 days).

[24] Accordingly, Mr. Eftekhar has three years from today to serve.

[25] There will be some ancillary orders. First, Mr. Eftekhar is prohibited by s. 743.21 of the Criminal Code from communicating directly or indirectly with the complainant during the period of this sentence. Second, given the violence both threatened and real brought to bear on the complainant, Mr. Eftekhar is hereby subject to a lifetime weapons prohibition pursuant to s. 109 of the Criminal Code. Finally, there will be a DNA order requiring Mr. Eftekhar to submit to the taking of a bodily sample for the purposes of DNA analysis and data bank storage.

Justice Kevin B. Phillips Released: March 3, 2020