ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 16-SA-19442

DATE: 2020/10/06

BETWEEN:

Her Majesty the Queen

– and –

Nickolas Anthony Gardner

Accused

John Ramsay, for the Crown

Paolo Giancaterino, for the Accused

HEARD: Reasons for Judgment given orally June 5, 2019, subsequent court appearances, June 14, July 18, September 6, October 4, 2019, January 29, Feb 14, June 3, September 4, 2020, Oral Reasons for Sentence given October 2, 2020

Restriction on Publication

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code of Canada.

Reasons for sentence

A.E. London-weinstein j.

[1] Mr. Gardner was convicted after a three-week trial without a jury. The trial was broken up over an extended period of time due to both scheduling issues and the emergence of COVID-19. Mr. Gardner waived his right pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time in this matter, and further explicitly waived the post-verdict period due to COVID-19. Mr. Gardner was convicted of a number of offences arising from the human trafficking of R.B. I have related the most relevant facts insofar as they relate to the principles of sentencing which govern the balancing that must be conducted in this case. For a full recitation of the findings of fact in this case, reference can be made to the Reasons for Judgment released orally on June 5, 2019.

The Offences:

[2] Mr. Gardner was convicted of human trafficking by exercising control, direction, or influence over the movements of a person, namely R.B., for the purpose of exploiting or facilitating the exploitation of that person, contrary to s. 279.01(1) of the Criminal Code, R.S.C. 1985, c. C‑46 (the “Criminal Code”). Mr. Gardner did not recruit R.B. to work in the sex trade.

[3] R.B. was 21 when she met Mr. Gardner and his long-term girlfriend T.M.F. in a night club. He was 27. She was a university student maintaining an A average. She also worked in a restaurant. They began a polyamorous relationship. R.B. began work in the sex trade industry of her own volition. Initially, she gave sexual massages and kept her earnings.

[4] R.B. and T.M.F. began work as exotic dancers and sexual escorts. As I indicated in my judgment, R.B.’s entry into sex trade work was voluntary. However, Mr. Gardner began to exercise control over her for the purpose of exploiting her. The degree of control exerted by Mr. Gardner over R.B. tightened over time.

[5] Mr. Gardner, for example, arranged the first escort job on September 26, 2016. He took the money for that job from R.B. He arranged for photos to be taken of her immediately afterward. He arranged for her to travel to Montreal and work there. He went with her. He took the money she earned there. He gave her the drug Ecstasy when she was unable to perform naked as a dancer in Montreal. As time went on, he forced her to work when she did not want to, for example, when she was menstruating, as I indicated in my judgment.

[6] The forensic evidence in this trial, specifically text messages, corroborate R.B.’s evidence that Mr. Gardner was directing, controlling and influencing her in order to exploit her as she worked in the sex trade. A message sent by Mr. Gardner to R.B. in December 2016 is illustrative of Mr. Gardner’s control of R.B. for the purpose of exploitation.

Remember we are in grind mode, so, if you haven’t hit your day, don’t leave at 6 p.m. to be heading to the gym. This convo ain’t over either so that’s something to look forward to, like guys grabbing your neck and instead of bouncing you go to the guy running them to tell them to chill so you can still hang. LOL, that sweater’s already trash, FYI.

[7] Mr. Gardner is ordering R.B. to meet her required quota of earnings before she can stop working and go to the gym. The “that’s something to look forward to” comment corroborates R.B.’s evidence, as outlined in my judgment at page 28, that Mr. Gardner would become angry and suspicious of R.B., accusing her of sleeping with men and not being paid for it, which she denied. As outlined in my judgment at page 29, there was evidence which supported R.B.’s claim that she was not permitted to speak to certain persons. Her movements appeared to be reported by T.M.F. to Mr. Gardner.

[8] As referenced in my judgment, I found that Mr. Gardner anally sexually assaulted R.B. as punishment for speaking to other pimps in a night club when Mr. Gardner was present and working in that club. This disrespect earned R.B. what was described by Mr. Gardner in his statement to police as sexual punishment. R.B. was given the choice of performing fellatio to his satisfaction or endure anal penetration. She did not perform fellatio to his satisfaction and was therefore bound hand and foot and anally raped in a hotel room, in the presence of T.M.F.

[9] As I indicated in my judgment, this sexual assault was motivated by a desire to punish R.B. for misbehaviour. The infliction of punishment by sexual abuse was evidence of the control Mr. Gardner exerted over R.B. Despite being sexually assaulted, both by being forced to perform fellatio and being anally penetrated against her will, R.B. did not immediately leave Mr. Gardner.

[10] The sexual assault occurred on December 2, 2016. R.B. did not leave until mid-December, 2016. When she finally did leave Mr. Gardner, she took steps to insure her safety by leaving her wallet at the front desk of the hotel and asking for hotel staff to accompany her to the room to retrieve her belongings.

[11] Mr. Gardner violently assaulted R.B. as she attempted to leave, in the presence of the hotel staff who were present to assist her. T.M.F. closed the door on the hotel staff person’s foot to exclude her from the room. As indicated at page 39 of my judgment, R.B. was punched repeatedly on her body and her face. This assault was witnessed by the hotel staff person. R.B.’s injuries included a cut under her left eye and bruising both above and below her left eye. She had an abrasion on her left eyelid. She had a red mark on her chin. She had skin abrasions on her neck. The inside of her lip was cut in two places.

[12] The use of physical violence in front of hotel staff, when R.B. attempted to leave Mr. Gardner, was evidence of the level of control that he, as her pimp, exerted over her. T.M.F. stood naked in the hallway screaming that R.B. was stealing from them.

[13] Mr. Gardner was convicted of a third count, receiving a financial or other material benefit knowing that it was obtained by the commission of an offence under s. 279.01(1) of the Criminal Code, contrary to s. 279.02(1) of the Criminal Code. Mr. Gardner, as outlined in my judgment, admitted to Det. Carroll in his police statement that he took control of the money earned by R.B. and T.M.F. He said he took control of the earnings because the women were not making good use of the money. R.B. testified that she was expected to earn a quota and was given back a fraction of that quota, with the lion’s share going to Mr. Gardner.

[14] The evidence was overwhelming that not only was Mr. Gardner aware of how R.B. earned her money through her work in the sex trade, but that he received a material benefit from that work. As mentioned, he had arranged her first escort job in Ottawa and then took her to Montreal to work. He advised her about Seeking Arrangements, a website for arranging sexual liaisons. The forensic evidence in the form of texts belie any claim that Mr. Gardner was not aware of how R.B. earned her money.

[15] For example, as I indicated in my judgment, in October R.B. was working out of the Westin Hotel in Ottawa. Mr. Stackavelli, or “Stacks”, who was a drug dealer to the group, was spending time with the group at the hotel. T.M.F. was also there for a week with R.B. and Mr. Gardner. Mr. Gardner directed R.B. to the lobby to solicit sex from a team of football players. Mr. Gardner took the money earned by R.B. When R.B. left Mr. Gardner in mid-December, Mr. Stackavelli texted Mr. Gardner and asked if he could begin making money from R.B., now that she was no longer involved with Mr. Gardner.

[16] As indicated at page 86 of my judgment, Mr. Gardner did not deny making money from the work of R.B. Rather, he texted in reply, “Hey, do your thing. She’s not my girl. Test the (word deleted as it would tend to reveal the name of the victim) if you can keep your head above the water.”

[17] As I indicated in my judgment, I found that Mr. Stackavelli’s request, after having spent time with the trio at the Westin hotel, confirmed the fact that Mr. Gardner was fully aware of what R.B. was doing to earn money, and knowing that fact, received a material benefit from R.B.’s work in the sex trade by taking her money. Mr. Gardner’s response was also confirmation of the fact that Mr. Gardner was receiving money from R.B., as her pimp for her work in the sex trade.

[18] T.M.F. wanted to end the involvement with R.B. Mr. Gardner refused to sever involvement with R.B., texting to T.M.F. that they would use her, her being R.B., until their feet were on the ground. As I indicated in the correction which I gave earlier to my judgment, I misapprehended the evidence initially. It was T.M.F. and not Mr. Gardner who called R.B. a name. Further, Mr. Gardner did not explicitly text that they would continue to use R.B., as I had misapprehended, and as I indicated in the correction to my judgement which I gave orally. He did not indicate that he was admitting to a prior pattern of using R.B., as I had initially concluded. Rather, he merely said they would use her until their feet were on the ground. The evidence established that T.M.F. and Mr. Gardner were out of funds at the end of their involvement with R.B. They had to ask her for money for a ride share to return to Ottawa from Toronto.

[19] He was convicted of a fourth count, receiving a financial or other material benefit knowing that it was obtained by the commission of an offence under s. 286.1 of the Criminal Code, contrary to s. 286.2(1) of the Criminal Code. (This count was stayed pursuant to the Kienapple principle: see Kienapple v. R. (1974), 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.)

[20] As for the fifth count, he was convicted of knowingly advertising an offer to provide sexual services for consideration, contrary to s. 286.4 of the Criminal Code. In his statement to police, as I noted in my judgment, Mr. Gardner admitted to placing advertisements for sexual services on behalf of R.B. as a favour to her. He also frequently spoke to her clients on her behalf. He placed the ads in Montreal that generated her early escorting clients.

[21] He plead guilty to count 6, which was assault on R.B. I have already related the facts relating to that assault. He was acquitted of count 7, the theft of a laptop. He was acquitted of count 8, uttering a threat to cause bodily harm to R.B.

[22] He was convicted of sexual assault. I have already discussed the facts surrounding that conviction. R.B. was bound hand and foot and sexually assaulted in the presence of T.M.F. Mr. Gardner was also aware, as I indicated in my judgment, that R.B. had never had anal sex before and had no desire to do so.

[23] Mr. Gardner never had a bank account based on the evidence.

[24] T.M.F. only got a bank account toward the end of the trio’s time together when R.B. refused to provide her and Mr. Gardner with her banking information.

[25] Mr. Gardner pleaded guilty to a s. 145 breach for failing to comply with the terms of his recognizance by breaching his curfew while on release on these charges.

Circumstances of the Offender:

[26] A pre-sentence report was prepared in this matter. Mr. Gardner is 31 years of age, his birthday being May 26, 1989. He was raised by his mother and his maternal grandmother. His father did not play a role in his life. His father resides in Jamaica. He spent a couple of years living in Jamaica when he was three or four years old. He was primarily raised in Scarborough, Ontario. The pre-sentence report indicated that he received corporal punishment as a child, but he did not regard this as unusual.

[27] His mother is supportive of him, and, along with other family members, including his sister and his stepfather, attended court to support Mr. Gardner. When he was younger, Mr. Gardner’s mother entered into a relationship with a man who Mr. Gardner identifies as his stepfather.

[28] Mr. Gardner did not have a close relationship with his stepfather and stated in the pre-sentence report that he felt that his mother had chosen her new partner over her son.

[29] Mr. Gardner had no criminal record at the time of these offences. He received a conditional discharge in relation to an incident involving criminal harassment of the mother of his child over seven years ago. He currently has a good relationship with the child’s mother, and with the child, who is 10. Mr. Gardner’s mother reports that he was a very athletic child who struggled in school. He left the family home when he was 16. He became a father when he was 19 years old. His maternal grandmother, who he was very close to, passed away when he was 19.

[30] Mr. Gardner met T.M.F. when he was 20 years old and they have been together, including periods of co-habitation.

[31] He met R.B. when he was 27 and had a seven-month long relationship with her. He and T.M.F. had a polyamorous relationship with R.B.

[32] In the pre-sentence report, Mr. Gardner indicated that there was abuse and violence in the relationship, but it was R.B. who was often violent.

[33] Mr. Gardner has eight siblings: six sisters and two brothers. Ms. Jenessa Hunte, Mr. Gardner’s sister, said that her brother focussed on basketball growing up. She sees him only a few times each year but has a positive relationship with him.

[34] Mr. Gardner’s mother was interviewed by the author of the pre-sentence report. She indicated that he was suspected of having borderline Attention Deficit Disorder. Mr. Gardner indicated to the author of the pre-sentence report that he was expelled from school in grade 9 over an allegation that he brought a weapon to school. Mr. Gardner indicated that it was a mathematical tool. He was expelled from a second school after a confrontation with a teacher in grade 10.

[35] Mr. Gardner was featured in a local Durham newspaper as a “face of the future.” The newspaper selects four annual candidates from local high schools and writes an article about them.

[36] Mr. Gardner attended college in Durham, Ontario when he was 19. He submitted a tape of himself playing basketball and was recruited to a college in Nova Scotia with a partial scholarship when he was 20. He left when the school lost one of his exams, which affected his marks and made him inadmissible to play on the basketball team.

[37] Mr. Gardner was employed with a preschool soccer academy as a coach for youth in Ottawa. He worked there for a period of four months. Prior to this he worked at a scrap yard for four months. He has also been employed as a manager in night clubs while also occasionally performing as a musical artist in clubs in the Ottawa area. He began working in nightclubs when he was 24 years old which led him to employment opportunities as a host and as a Master of Ceremonies (MC). He has also worked in retail.

[38] Mr. Gardner advised the author of the pre-sentence report that he did not have a problem with alcohol but may have been drinking during the time period covering the index offences.

[39] He consumes marijuana on a daily basis and has been doing so since he was 21 years old. He reported for his pre-sentence report interview after consuming marijuana 30 minutes earlier. He candidly admitted this to the author of the report. He reported using MDMA on three occasions. He was cooperative and receptive during the interview.

[40] Mr. Gardner denied responsibility for all but the assault. He reported receiving the short end of the stick and claimed that he was managing Backpage ads for both of his partners as a “favour” to them after initially not wanting to do so. He reported that he was not aware of what was occurring during the meetings between his partners and the clients. He denied being in control of the money generated by these meetings and stated that all three of them pooled their finances together. He denied being threatening or coercive towards any of his partners. When asked how he could have avoided these charges he said he could have made a conscious choice and said no when he was asked to manage his partner’s sex work.

[41] Mr. Gardner indicated to the author of the pre-sentence report that he keeps busy by attending the gym, church, playing basketball and making rap music. He is currently involved with two adult men’s basketball leagues.

[42] Mr. Gardner was compliant with all of the conditions during a period of community supervision from August 11, 2010 to August 10, 2011. He also completed a Partner Assault Response Program through the John Howard Society.

[43] Mr. Gardner conveyed to the author of the pre-sentence report that he felt he was unfairly treated by the court.

The Positions of the Parties:

[44] On behalf of the Crown, Mr. Ramsay seeks a sentence of eight years. The Crown submits the eight-year sentence is a reduction due to the totality principle, of what should be a 10 to 12-year sentence. On behalf of the defendant, Mr. Giancaterino submitted that in light of all of the relevant circumstances, the appropriate sentence is four to five years.

Discussion:

[45] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. The Criminal Code directs judges to craft sentences which achieve these goals by imposing just sanctions which have one or more of six objectives. Those objectives include the denunciation of unlawful conduct, deterrence of the offender and others who might be similarly tempted, separation of the offender from society where necessary, rehabilitation, and the promotion of a sense of responsibility in the offender.

[46] Whatever sanction is imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” In determining the sanction required in the particular circumstances of a case, a judge must take into consideration “any aggravating or mitigating circumstances relating to the offence or the offender.” Further a judge must bear in mind that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”, that “an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances,” and that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders: see ss. 718, 718.1 and 718.2 of the Criminal Code.

[47] The objectives of sentencing often pull in different directions. The predominant objectives in this case involve specific and general deterrence, and denunciation. However, Mr. Gardner did not have a criminal record at the time of this offence. Some consideration, therefore, must be given to the principle of restraint. In addition, Mr. Gardner has some employment history and pro-social connections to the community, including his involvement in sports, his church, employment, and the fact that he, at times, has demonstrated initiative and discipline. He has the support of his mother and family. He was 27 at the time of this offence, which is not a youth, but is still a relatively youthful adult. He is a father and has a good relationship with his child and the mother of his child. These are all mitigating factors.

[48] There was evidence in this case from R.B. that he wanted to support his child financially. Therefore, rehabilitation must be considered despite the fact that the gravity of the offences for which Mr. Gardner has been convicted mandate an emphasis on denunciation and deterrence. There also was what I would describe as character reference material that provided insight into a side of Mr. Gardner’s character that did not emerge in this trial, prior to his conviction. In my view, this evidence is relevant to Mr. Gardner’s potential for rehabilitation, specifically his ability to mentor others, his willingness to give back to the community, and his potential for leadership and employment. All of these factors are mitigating factors on sentence. It is difficult to reconcile the person described by the authors of these letters with the actions of the person who I convicted of these very serious offences involving the degradation, humiliation and abuse of someone who was an intimate partner. I do not discount the validity, nor the accuracy of these letters, but note that the evidence in this case revealed that Mr. Gardner had another side to his personality and conduct which was revealed in this trial, but which has not been disclosed to the family, friends and employers who took the time to write on his behalf.

[49] Channelle Stabile wrote a letter on behalf of Mr. Gardner. She has known him for five years. She described him as an amazing, genuine, hardworking, loving and caring individual. He has been a mentor to her son. She describes him as goal oriented and notes his success as an artist. She writes, “overall with his hard work and dedication I see great things happening for his future and career. An amazing father, son, mentor and friend that deserves everything that he has worked so hard for.”

[50] I also reviewed a letter from Algonquin College Admissions indicating that Mr. Gardner has been accepted into the General Arts and Science Introduction to Music Industry Arts program on a full-time basis. Acceptance to this program demonstrates that Mr. Gardner has the aptitude to continue to develop his musical artistry. Mr. Gardner has had some success in the music business and has a line of merchandising.

[51] Mr. Gardner has also participated in charity events in the community. He participated in Beau’s Oktoberfest Charity Bike Ride which raised a total of $75,567 for the United Way. A letter signed by Stephanie Smith, Manager of Workplace Philanthropy for the United Way East Ontario confirmed his participation.

[52] Mr. Gardner’s employer Ancrage National Anchors Inc. also provided a letter commending Mr. Gardner as a highly valued employee. Mr. Grignon indicated that Mr. Gardner was working in construction, roof top work, spot welding and grinding. Mr. Grignon indicated that Mr. Gardner has an exemplary attitude toward work and is an asset to his company. He described Mr. Gardner as very well-mannered, respectful and diligent with a great sense of leadership. Mr. Grignon indicated his door is always open to Mr. Gardner.

[53] More than one person indicated that Mr. Gardner is looked up to by others. Mr. William Davenport runs a youth program. He indicated that Mr. Gardner has helped him with this program. He also indicated that Mr. Gardner has helped him grow his business and brand, which promotes mental health for youth who are at risk. Mr. Gardner has also taken the time to help Mr. Davenport navigate stress he experienced at school.

[54] Mr. Harry Ezenibe, founder of HarryCares Foundation (HCF) has known Mr. Gardner for nine years. Mr. Ezenibe uses his foundation to empower youth. Mr. Ezenibe knows Mr. Gardner to be of good character based on working with him in a volunteer capacity for many years. Mr. Ezenibe and Mr. Gardner were both students at Saint Mary’s University in Halifax, Nova Scotia. Mr. Gardner helped the foundation by providing his personal shoes to be delivered to the HCF shoe drive in Toronto. Mr. Ezenibe describes Mr. Gardner as passionate, careful, considerate and dedicated to the well-being of youth in the community. Mr. Ezenibe wrote, “I hope this letter will give you an idea of his character and help him get a second chance to make better life decisions.”

[55] Mr. Manock Lual also wrote a letter in support of Mr. Gardner. Mr. Lual is the head coach of the La Cité College basketball program. Mr. Gardner has been part of the program this past semester. Mr. Lual described him as a leader who takes pride in the things to which he is committed. Mr. Lual described his leadership skills as strong and noted Mr. Gardner ability to motivate and inspire individuals with his charisma and warm-hearted personality.

[56] A friend of Mr. Gardner’s mother also noted his passion for music and respect for his sisters. She noted that he finished in the top five in a music competition and described him as polite and courteous to females.

[57] There also was a referral from Dr. Abhishek Raut of Appletree Medical Group for emotional support dated October 15, 2019.

[58] Mr. Gardner has never been sentenced to a penitentiary term. I have tailored this first penitentiary sentence to be as short as possible, while also appropriately balancing the other relevant sentencing considerations: R. v. Borde, 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (Ont. C.A.).

[59] In R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (Ont. C.A.), Doherty J.A. stated at paras. 90-91:

The “gravity of the offence” refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence….

The “degree of responsibility of the offender” refers to the offender’s culpability as reflected in the essential substantive elements of the offence—especially the fault component, and any specific aspects of the offender’s conduct or background that tend to increase or decrease the offender’s personal responsibility for the crime.

[60] The maximum punishment for human trafficking under s. 279.01 of the Criminal Code is 14 years imprisonment. The maximum punishment for sexual assault is 10 years. The maximum punishment for the receipt of financial benefit contrary to s. 279.02 of the Criminal Code is 10 years. The maximum penalty for knowingly advertising an offer to provide sexual services for consideration is five years. The maximum penalty for assault is five years. Failing to comply with an undertaking or recognizance has a maximum penalty of two years.

[61] The mandatory minimum sentence provision of s. 279.01(1) was found to violate s. 12 of the Charter, which is the right not to be subjected to any cruel and unusual treatment or punishment, and was declared to be of no force and effect pursuant to s. 52 of the Constitution Act, 1982 in R. v. Reginald Louis Jean, 2020 ONSC 624. I agree with the reasoning of R. Smith J. in that case and respect his earlier declaration of unconstitutionality, there being no cogent reason to conclude that the earlier declaration is plainly the result of a wrong decision: see R. v. Sullivan, 2020 ONCA 333, 151 O.R. (3d) 353 at para. 38. The Crown has indicated that it will appeal the decision in Sullivan, to the Supreme Court of Canada. However, whether I am bound by a s. 52 declaration of unconstitutionality, or following the principles of stare decisis, or observing judicial comity, the end result would have been the same. I agree with Smith J.’s conclusion that s. 279.01(1) violates s. 12 of the Charter.

[62] The decision in Sullivan was released after counsel had made final submissions with regard to sentence, and release of my reasons for sentence was delayed for some time due to COVID-19. Mr. Gardner was out of custody. His pre-sentence report indicated that he had previously engaged in a single act of attempted self-harm as a younger person. I was of the view that delivering this sentence should not take place during a time when there was so much uncertainty and stress due to COVID-19, and when Mr. Gardner could not safely step into custody due to the virus.

[63] However, the Crown did not seriously oppose the defence position regarding the mandatory minimum given that the facts in this particular case attract a sentence which meets or exceeds the mandatory minimum.

[64] In arriving at the appropriate sanction required in the circumstances of a given case, a judge must take into consideration “any aggravating or mitigating circumstances relating to the offence or the offender”. The aggravating circumstances in this case include the following:

1. Mr. Gardner forced fellatio upon R.B. and anally sexually assaulted R.B. for the purpose of disciplining her as a result of her speaking to pimps in a nightclub. This punishment was conducted in the presence of T.M.F. The denigration and humiliation of R.B. through this sexual punishment was by design, which I found to be an aggravating factor.

2. The fact that Mr. Gardner knew that R.B. had never, and did not wish to, engage in anal sex was established on the evidence. The fact that Mr. Gardner forced himself upon R.B. anally, while knowing that R.B. had never had anal sex, and did not wish to have anal sex, is aggravating.

3. Both the Crown and the defence pointed to R. v. Tang, 1997 ABCA 174, 200 A.R. 70 as well as R. v. Salmon, 2019 ONSC 1574 as a guideline to the various factors which are commonly found to be aggravating in cases of living off of the avails of prostitution, in the case of Tang, and of human exploitation in the case of Salmon. This list is not a closed list, there being factors in every case which are unique to the individual case itself.

I. The degree of coercion or control exercised by the offender on his victim’s activities

[65] Mr. Gardner’s exercise of coercion and control over the victim increased toward the end of the roughly six to seven-month period during which R.B. was engaged in sex trade work. Initially, before she moved out of her mother’s house, the control exercised was minimal. However, Mr. Gardner did control access to the victim’s phone initially.

[66] The victim entered sex trade work of her own volition, giving sexual massages. However, Mr. Gardner made the arrangements for her first experience as an escort, where she exchanged sexual activities for money. I accepted her evidence that, as time went on, Mr. Gardner forced her to work when she did not wish to do so. Mr. Gardner acted as though he had agency over R.B. by demonstrating that he had no compunction about beating her in front of an independent witness in a public place.

[67] In my view, the fact he was willing to beat her so freely in public spoke to the degree of licence he felt he had over her life. He also regarded her as someone he could take advantage of, and he did so. He had a relationship with her which he exploited. He threatened her, at times, by suggesting that a conversation was not over “so that is something to look forward to”. This was in relation to the “grind mode” text, where he told her she could not stop work until she met her required earning level.

II. The amount of money received by the offender and the extent to which the victim was permitted to retain her earnings

[68] R.B. initially was able to retain her earnings when she was living with her mother. However, toward the end of the seven-month period in which she was involved with Mr. Gardner, he kept her earnings. He took her earnings from the first sexual escorting she completed. I accepted the evidence that if she met her quota, she was given a portion of her earnings, which she sometimes used to get her nails done. I appreciate that R.B., T.M.F. and Mr. Gardner were in a polyamorous relationship and that they lived together. Therefore, R.B. would have common living expenses due to her living with T.M.F. and Mr. Gardner. However, the evidence before me was that, toward the end of the seven-month period, R.B. was turning over her earnings to Mr. Gardner and being given a small allowance, or stipend to spend on her nails. Mr. Gardner was taking the vast bulk of her income earned through her sex trade work. The exact quantum of that money was not made clear to me, but at one time, R.B. and T.M.F. had to make a quota of $700 per night and were permitted to keep $150.

III. The age of the victim

[69] R.B. was not a minor but was still youthful during her time with Mr. Gardner. I did not consider this to be an aggravating factor.

IV. Any special vulnerability on the part of the victim

[70] The victim did not possess any special vulnerabilities. Mr. Gardner did exploit the fact that R.B. could be manipulated as she was in a relationship with him, and with T.M.F., but I would not characterize this as a special vulnerability.

V. The working conditions in which the victim was expected to operate, including the physical surroundings of soliciting and servicing customers, safety concerns and health safeguards

[71] Her working conditions were at one time fairly grim. At one point, she was servicing clients from a lower-end hotel and living in the same room. Mr. Gardner would leave the room when she would service clients. However, in the context of the spectrum of human trafficking cases, the working conditions would likely fall somewhere in the middle of the spectrum.

VI. The degree of planning and sophistication, including whether the offender was working in concert with others

[72] In terms of the degree of planning and sophistication, including whether the offender was working in concert with others, I note that there did not seem to be any evidence of sophistication or advanced planning. I agree with the observation of the sentencing judge in Salmon, where the use of cell phones as a means to take photos, post ads, attract business and maintain contact with the worker was found to not be a particularly advanced, innovative or sophisticated method of conducting business. The victim in that case, as in this case, was expected to service multiple clients, and her work was undoubtedly gruelling and exhausting. Immediately after R.B. performed her first job as a sexual escort, Mr. Gardner arranged for her photos to be taken and they immediately went to Montreal for R.B. to perform sex trade work. I have no evidence that Mr. Gardner was working with others. He arranged the first sexual escorting activity and set up the subsequent activity in Montreal. The trio were also frequently out of funds. I would categorize this organization as having some degree of planning, but it was not a sophisticated human trafficking operation. Code words were employed, and different phones were used.

VII. The size of the offender’s operations including the number of customers the victim was expected to service

[73] In terms of the size of the offender’s operations, including the number of customers the victim was expected to service, the victim in this case was expected to meet her quota before she could be permitted to stop working. The evidence before me was that there were nights which were busy, and other days were slower. I defined this as a neutral factor.

VIII. The duration of the exploitative conduct

[74] Regarding the duration of the exploitative conduct, Mr Gardner, T.M.F. and R.B. were in a relationship together for about seven months. I found that the victim willingly entered the sex trade of her own volition. While Mr. Gardner, T.M.F. and R.B. were in a relationship, Mr. Gardner exploited the victim, despite the existence of the relationship between the three. He did this by making the victim work when she did not wish to do so, by imposing quotas, by taking all of her money except for a small allowance, and by threatening her as he did in the text message about “grind mode”. I found that the length of the time of the exploitation, which got worse over time, was not long when compared to some of the other cases I reviewed, but as a matter of several months, I would not characterize it as insignificant.

IX. The degree of violence, if any, apart from that inherent in the offender’s parasitic activities

[75] In regard to the degree of violence, I found that Mr. Gardner physically assaulted R.B. based on his plea before me. He also sexually assaulted her, as already mentioned, as discipline for speaking to pimps in a club.

X. The extent to which inducements such as drugs and alcohol were employed by the offender

[76] The complainant testified that Mr. Gardner gave her drugs to enable her to dance at a strip club in Montreal. She developed a dependency on this drug to do her sex trade work and the drugs were supplied by Mr. Gardner and T.M.F.

XI. The effect on the victim of the exploitation

[77] The victim declined to submit a victim impact statement. However, in the pre-sentence report she advised the author that she had lasting negative consequences of her experience with Mr. Gardner which impact her health as well as her financial situation.

XII. The extent to which the offender demanded or compelled sexual favours for himself

[78] Mr. Gardner and R.B. were in a relationship with each other and T.M.F. The sexual relationship was consensual with the exception of the sexual assault perpetrated by Mr. Gardner in the previously referenced incident where he orally and anally sexually assaulted R.B. Mr. Gardner did not compel sexual favours from R.B. except when he raped her.

[79] In R. v. Miller, [1997] O.J. No. 3911 (Ont. C.J.), Hill J. adopted the Tang list and added several more factors of his own including: the age of the customers, steps taken to avoid detection, and attempts to prevent the victim from leaving his employ.

1. The age of the customers was not established to a requisite degree for me to make findings that it was aggravating. I found it not applicable.

2. Steps taken by the offender to avoid detection. While some code words were used, and multiple phones, I did not find this to be a significant factor in this case.

3. Attempts by the offender to prevent a victim from leaving his employ. In many instances R.B. left but would return of her own volition. However, Mr. Gardner did assault her in December when she wished to leave. He pleaded guilty to this assault.

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

[81] Mr. Gardner did not coerce R.B. into entering the sex trade. However, he did engage in sexual violence when he sexually assaulted her and violently assaulted her in the presence of hotel staff. I acquitted him of threatening her. Nonetheless, there was a months long period of exploitation during which Mr. Gardner ran an operation that featured his victim offering sexual services for the dominant purpose of Mr. Gardner’s commercial profit. During this time, he used pressure, psychological game playing, criticism and pressure to perform, and manipulation to keep his victim working in the sex trade and generating revenue.

[82] Mr. Gardner arranged the first sexual escorting job and he also arranged for R.B. to have photos taken immediately afterward. He then travelled with her to Montreal. He provided her with drugs to lower her inhibitions so she could perform exotic dances in Montreal. I would characterize this case as falling into the high end of the second tier, or the lower end of the top tier of the Tang model.

[83] Mr. Gardner was on strict conditions for a considerable period of time. His counsel argues that he should receive Downes credit for this period of time, which was roughly in the neighbourhood of three years and a half years and included a curfew and strict conditions of release. The Crown argues that Mr. Gardner breached his bail by attending a gym 20 minutes after his curfew had expired. He also used the internet when prohibited from doing so by his conditions.

Mitigating Factors:

[84] I have already listed many of the mitigating factors in this case from paragraphs 49 to 59 above. Briefly, Mr. Gardner had no criminal convictions at the time of the offence. He has completed high school. He reportedly has a good relationship with the mother of his child. He has been employed for periods in the past. He was able to receive a scholarship to play basketball in Nova Scotia. Despite his denial of guilt, I still see the potential for rehabilitation in Mr. Gardner. Given that Mr. Gardner had no criminal convictions at the time of the offence, I am satisfied that despite the seriousness of the offences, which mandate that significant weight be afforded to the principles of denunciation and deterrence, consideration must also be given to the principles of rehabilitation and restraint.

[85] Mr. Gardner is 31 years old. He was 27 at the time he met R.B. I also regard it as some mitigation that he pleaded guilty to the assault charge, admitting his guilt. He also has been involved in proactive activities for youth and charity work. He is a parent with a good relationship with the mother of his child, and with his son. He has the support of his family. He has employment. He served about a week in custody.

The Appropriate Sentence:

Comparable case law:

[86] I reviewed all of the authorities and all of the submissions provided by both counsel for guidance as to the appropriate sentence. Each case turns to some degree on its own facts and sentencing is a notoriously contextualized exercise regarding the specific facts of an individual case and an individual offender. Mr. Gardner’s case is distinguishable from some of the other cases as he did not force or coerce R.B. into sex trade work. However, he exploited her for some months, took most of her earnings and engaged in violence to control her in order to continue to exploit her work in the sex trade for his own material benefit.

[87] In R. v. A.S., 2017 ONSC 802, the accused was sentenced following a trial on offences including human trafficking and receiving a material benefit. He trafficked one victim from the ages of 19 to 22. The victim was a vulnerable person. A romantic relationship existed. Physical abuse occurred including a severe injury to the victim’s tendon. He had a prior criminal record. A sentence of 12 years was imposed with five years concurrent on the receipt of a material benefit charge. Another year was added to the sentence for the offence of choking. Justice Quigley reviewed many of the Tang factors as well as some of the case law under the human trafficking provisions. I found this case to be distinguishable from the case at bar due to the length of time of the exploitation and the extensive criminal record of the accused.

[88] The Crown also provided R. v. Mfizi, 2008 CanLII 29779 (Ont. S.C.), where the offender procured a 17-year-old female to become an escort. He exploited her over a period of about 3 months. He exercised a high degree of control over her and assaulted her on multiple occasions. He had a criminal record. Justice Thorburn, as she then was, imposed a global sentence of eight years.

[89] In R. v. A.E., 2018 ONSC 471, Boswell J. imposed a seven-year sentence for the human trafficking portion of the sentence and five year concurrent on the second count. The sentence for human trafficking was adjusted to six years due to the totality principle as there were other charges. There were two victims. One of the victims was exploited for a period of years, and the other a period of months. The accused took all of the victims’ earnings and treated the victims as commodities. The mandatory minimum applied in that case. Justice Boswell also cited R. v. M.C.D., 2017 ONSC 3081, where the offender procured a drug addicted female into prostitution. He exploited her for five days, keeping all her earnings. She managed to escape but the offender and another male kidnapped the complainant with a view to forcing her back into prostitution. Justice Kelly imposed an eight-year global sentence on a guilty plea to several offences including human trafficking, kidnapping, assault causing bodily harm and using an imitation firearm during the commission of an indictable offence.

[90] In R. v. Reginald Louis Jean, 2020 ONSC 624, R. Smith J. imposed a sentence of eight years reduced to six years for the totality principle where the accused had no prior record but was convicted of two counts of human trafficking of two women and one count of receiving a benefit therefrom, along with two counts of breach of recognizance. In that case one of the victims had previously worked as an escort. The victim was 18. He trafficked the first victim for a period of six to seven months. Mr. Jean also trafficked a second victim for two and a half years when she was between 19 and 21years old. She believed she was in a romantic relationship with him. He used a range of methods, including coercion, manipulation and deception to control her and kept thousands of dollars per week of her earnings. The accused in that case was 30. He had completed high school, obtained a business administration degree at Algonquin College and had a partner and a six-month-old child. He had no prior criminal record.

[91] In R. v. Lopez, 2018 ONSC 4749, Campbell J. imposed a five-year global sentence where the accused and the victim had also been in an intimate relationship. The period of exploitation was of 17 months. The accused also obstructed justice and assaulted the victim with a weapon. He breached his recognizance. The victim had previously worked as an escort and it was her idea to enter the sex trade business with the accused in a misguided effort to continue their romantic relationship. He verbally abused, manipulated and physically abused the victim. He kept most of the victim’s earnings. The offender had a prior criminal record but made significant efforts toward rehabilitation while in custody awaiting trial.

[92] At para. 53, the court described the seriousness of the offence of human trafficking and its impact on victims as follows:

In terms of the range of sentences that are appropriate for pimping offences, Canadian courts have generally accepted that, in cases like the present one, where the accused has coerced a woman into becoming or remaining a [sex trade worker] 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 paramount sentencing considerations.

[93] In R. v. S., 2016 ONSC 2939, the offender was sentenced following a trial on offences including human trafficking and receiving a material benefit. He trafficked one 19‑year-old victim for a period of five months in 2013. The offender and victim were in a romantic relationship. The victim had done sex work before meeting the offender. The offender was 33 and had a prior criminal record. The court imposed a five-year sentence for human trafficking, three years concurrent for receiving a material benefit. On appeal, the sentence was only varied to adjust for pre-sentence custody.

[94] In R. v. Crosdale, 2019 ONCJ 3, the accused had no prior criminal record but was found guilty of human trafficking committed against one victim who was under 18 and one who was 19. A global sentence of six years was imposed, with five years ascribed to the human trafficking counts, concurrent.

[95] In R. v. Purcell, 2019 ONSC 4683, the offender was sentenced following a trial on offences including human trafficking of a person under 18. He trafficked one victim for several months. The victim was a 16-year-old youth who had run away from her home. He physically abused the victim. He was sentenced to seven years for trafficking a person under 18. (The sentence for human trafficking was reduced to 5.5 years from seven years following credits for pre-sentence custody and restrictive bail conditions).

[96] In R. v. Miller, [1997] O.J. No. 3911 (Ont. C.J.), Hill J. rejected the argument that a sex trade worker who voluntarily works for a pimp, or the equivalent, is not subjected to influence by her employer. At paras. 37-38 of that decision, Hill J. noted:

The relationship between a pimp and a sex trade worker is almost inevitably inherently coercive and exploitative. The degrading domination of the pimp perpetuates the sex workers lack of self esteem and self worth. Street pimps promulgate violence as their primary control mechanism. Other pimps, particularly those administering adult entertainment or escort service operations, employ more subtle pressure including preying upon economic dependence of the sex workers employed. In other words, the demonstration of domination varies from case to case….

Quite appropriately, in Attorney-General’s Reference (No. 2 of 1995) [1997]. I Cr. App. R. 72 C.A.) at 76-77, the court held that a pimp operating an agency offering sexual services can exert influence upon a sex trade worker without compulsion or persuasion.

[97] As in R. v. N.A., 2017 ONCJ 665, a case provided by defence counsel, Mr. Gardner shows no remorse for his actions, nor any insight into the wrongfulness of his conduct. At para. 44, P.F. Monahan J. noted that the accused in that case regarded the victim as his girlfriend and “things went wrong.” Justice Monahan was of the view that the accused “just does not get it. I will not re-state the case against N.A., but I will say that a man does not treat a ‘girlfriend’ like N.A. treated G.S. A man does not beat and threaten his “girlfriend” when she fails to hand over her earnings to him from work in a strip club, and he does not demand money from her and threaten her.”

[98] I found that, similarly, Mr. Gardner demonstrated no remorse and repeatedly asserted that he loved the victim. Mr. Gardner used the existence of a polyamorous relationship to exploit R.B.’s work in the sex trade. He forced her to work when she was menstruating, over her protests. He sexually assaulted her, both by forcing oral sex and by penetrating her anally, for speaking to other pimps in a club. Toward the end, he openly admitted to T.M.F. that they would use R.B. until they could be established financially. While a lack of remorse is not an aggravating factor with regard to sentencing, Mr. Gardner demonstrated a callous disregard for R.B. which was inconsistent with his claims of love. He also manipulated T.M.F. and R.B. in order to gain economic profit. For example, in one text, he told T.M.F. that she should treat R.B. like a dog to ensure she maintained her placement in the trio.

[99] Having reviewed all of the authorities provided to me by counsel, I conclude that it is quite difficult to define a usual range for the offence of human trafficking, given the seemingly infinite circumstances in which this offence can be committed. As Boswell J. noted in R. v. A.E., at para. 65, the yardsticks are far from settled, particularly in view of the imposition of mandatory minimum sentences in 2014. I agree with Boswell J.’s observation 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. Since 2014, the floor has been elevated. The range now appears to be four to eight years, as noted by Boswell J. In that case the court imposed a sentence of seven years on the human trafficking count where the accused had a criminal record for homicide as a young person and had exploited two persons. The sentence was adjusted to six years to respect the totality principle and reduce an overall sentence including the other convictions.

[100] Regarding the totality principle, I must ensure that where consecutive sentences for multiple offences are ordered, the cumulative sentence rendered does not exceed the overall culpability of the offender. I must review the aggregate sentence and consider whether the aggregate sentence is “just and appropriate.” A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if the effect is to impose on the offender a “crushing sentence” not in keeping with his record and prospects: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 42.

[101] I have fixed the appropriate individual sentences to arrive at a total sentence and adjusted the total sentence to ensure that it does not exceed what is just and appropriate: see Clayton C. Ruby et al., Sentencing, 9th ed. (Toronto: LexisNexis Canada, 2017), at p. 59, as cited in R. v. Meshreky, 2019 ONCJ 374, at para. 20.

[102] A sentencing range is not fixed in stone, nor is it a straitjacket: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para 57. Having considered all of the aggravating and mitigating factors, and with regard to the principle of proportionality, and the principle of restraint, I sentence Mr. Gardner as follows.

Sentence shall be imposed as follows:

1. Count 1 – sexual assault contrary to s. 271 of the Criminal Code: four years (reduced to three years pursuant to the totality principle).

2. Count 2 – exercising control, direction or influence, contrary to s. 279.01(1): five years consecutive to count 1 (reduced to four years less 90 days, pursuant to the totality principle).

3. Count 3 – receiving a financial or other material benefit knowing that it was obtained by the commission of an offence under s. 279.01(1), contrary to s. 279.02(1) of the Criminal Code: three years concurrent.

4. Count 4 – stayed pursuant to the Kienapple principle.

5. Count 5 – knowingly advertising an offer to provide sexual services for consideration, contrary to s. 286.4 of the Criminal Code: two years concurrent.

6. Count 6 – assault, pleaded guilty: six months concurrent.

7. Count 7 – acquitted.

8. Count 8 – acquitted.

9. Breach of recognizance on new indictment: 90 days concurrent.

[103] The global sentence of nine years for all charges is prior to the reduction I imposed due to the totality principle. Mr. Gardner, despite his breach conviction, which is an admission he was not following his curfew on the day in question, is also entitled to some credit for the strictness of his conditions. I find that the length of his conditions, and the approximate week he spent in custody, warrant a 90-day reduction in his sentence.

[104] The principle of totality in this case caused me to reduce the overall sentence to seven years. Mr. Gardner is a first-time offender with evidence of strong prospects for rehabilitation, albeit he has been unwilling to take responsibility for his actions in this case. I do not fault him for that, but he cannot receive credit for remorse that is not expressed, and which is usually a good indicator of prospect for rehabilitation. Despite the lack of remorse, I find he has strong prospects for rehabilitation based on the information provided to me by his many supporters. I did give him credit for admitting the assault at the Westin hotel. I am of the view that a sentence of nine years is not necessary to reflect the appropriate levels of denunciation and deterrence, and that it would crush Mr. Gardner. The indictment shall be adjusted due to the principle of totality to reflect a three-year sentence for the sexual assault and a four-year consecutive sentence for human trafficking. Further, Mr. Gardner served about a week of custody. Pursuant to the Supreme Court of Canada’s decision in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, I have given him 1.5 credit for each day served in custody. Mr. Gardner was also on bail for roughly over three and a half years since being charged. He was under a curfew condition, not under conditions of house arrest, as was described in R. v. Downes (2006), 79 O.R. (3d) 488. Mr. Gardner also pleaded guilty to not following the conditions of his release. In my view, he has lost some of the credit which would otherwise be accorded to him pursuant to R. v. Downes. The awarding of Downes credit is discretionary. Three and half years is a long time to be on bail. However, these were not conditions of strict house arrest. Mr. Gardner was able to work and go to the gym. He has used his time productively, which was already reflected in the mitigation I found due to employment and volunteer work. I have given him a reduction in his sentence of 90 days, including his time spent in custody to reflect the mitigation of Downes credit for his conditions of release and his time spent in actual custody. I impose a global sentence of seven years, less 90 days.

[105] There shall be an order that a sample of Mr. Gardner’s DNA be taken. There shall be a SOIRA order for life. There shall be a s. 109 order for 10 years and an order that Mr. Gardner not contact the victim in any way pursuant to s. 743.21 of the Criminal Code.

[106] Mr. Gardner shall therefore serve a sentence of seven years, less 90 days reduction for his Downes credit.

A.E. London-Weinstein J.

Released: October 6, 2020

COURT FILE NO.: 16-SA-19442

DATE: 2020/10/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty The Queen

– and –

Nickolas Anthony Gardner

Accused

Reasons for sentence

A.E. London-Weinstein J.

Released: October 6, 2020