COURT FILE NO.: CR-17-08739
DATE: 20201217
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
A.M. and M.P.
Defendants
K. Hutchinson, for the Crown
R. Lichtman, for the Defendant, A.M.
A. Wine, for the Defendant, M.P.
HEARD: October 27, November 16 and 20, 2020
PUBLICATION BAN
Pursuant to s. 486.4 of the Criminal Code, no information that could identify the complainant shall be published in any document or broadcast or transmitted in any way.
REASONS FOR SENTENCE
MCKELVEY J.:
Introduction
[1] The defendant, A.M., was found guilty at trial of exercising control, direction or influence over the movements of A.K. contrary to s. 286.3(1) of the Criminal Code. He was also found guilty of receiving a financial or other material benefit from those activities as well as advertising sexual services for consideration and trafficking in MDMA.
[2] Mr. M.P. was also found guilty of exercising control, direction or influence over the movements of A.K. as well as receiving a financial benefit and advertising sexual services for consideration.
[3] The defendants now come before this Court for sentencing on those offences.
[4] The background facts relating to the above-noted convictions are set out in my Reasons for Judgment dated July 7, 2020.
Applicable Legal Principles
[5] Under s. 286.3(1) of the Criminal Code, a person who exercises control, direction or influence over the movements of a person to offer or provide sexual services for consideration is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.
[6] The principles of sentencing are set out in s. 718 of the Criminal Code, which provides as follows:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[7] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[8] Section 718.2(c) provides that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. The totality principle 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. It is therefore necessary to review the aggregate sentence and consider whether it is just and appropriate. There is a broad discretion to impose consecutive sentences if separate legal interests are implicated in the various offences. See R. v. Boyd, 2016 ONCA 380.
[9] In general, courts have determined that denunciation and general as well as specific deterrence are the prevailing objectives for sex trade offences.
[10] Section 718.2(a) provides that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.
[11] In R. v. Dubois, [2019] Q.J. No 1738, Justice Tremblay noted that the s. 286.3 offence was introduced by Parliament after the Supreme Court of Canada struck down earlier Criminal Code provisions about living on the avails of prostitution. He states,
Section 286.3 operates as new law. When compared to former section 212 of the Criminal Code, one may notice that Parliament increased maximum imprisonment to 14 years, which translates into the will of making procuring an objectively more serious crime.
[12] Justice Tremblay notes that there are a limited number of cases for a sentencing under the new legislation but that “sentences are more severe now”.
[13] A number of cases have referred back to a decision of the Alberta Court of Appeal in R. v. Foster, 1984 ABCA 204, [1984] A.J. No. 2600, where the Alberta Court of Appeal refers to sentencing ranges as follows:
In the first category, are sentences within the four to five year range which are usually approved where the offender has coerced the woman concerned into becoming or remaining a prostitute, and has exercised a significant degree of control over her activities.
In the second category, where the element of coercion is lacking, but the offender relies on the earnings of the woman as his main source of income, the appropriate sentence is more likely to be within the range of two or three years’ imprisonment.
In the third category, sentences in the lowest bracket, between twelve and eighteen months’ imprisonment, are likely to be found where the offender receives money from the woman concerned but the relationship cannot be characterized as one of exploitation.
[14] The importance of exploitation in the context of sentencing for this type of offence is reflected in the decision in this Court in R. v. Ellis, 2017 ONSC 3812, where Justice Gilmore comments,
Procuring women for the purpose of living off their work as prostitutes is something that society strongly denounces. That is, taking advantage of (usually) younger women and putting them at risk for personal financial gain is reprehensible conduct and a strong message must be sent to those who engage in such behaviour.
Circumstances of the Offenders
[15] A.M. is currently 34 years old. According to the pre-sentence report, he currently resides with his parents in Maple, Ontario. He enjoys a positive and close relationship with his sister and her family. His sister and her husband submitted character references which spoke about financial and emotional support which has been provided by Mr. A.M. There is also a reference to the fact that he has a particularly close relationship to the sister’s three year old son, Theodore.
[16] The pre-sentence report documents that Mr. A.M. has been in a dating relationship for several months.
[17] Mr. A.M. reported that he has one year of a college diploma where he studied business accounting. He worked with his uncle in a window and door installation business in Alberta. However, since returning to Ontario in 2013 he has worked primarily in seasonal work including various positions in trades, telemarketing and sales jobs. He is currently unemployed.
[18] Mr. A.M. also reported that he has been under the care of a psychotherapist since August of 2020 and he reported to the author of the pre-sentence report that being put on house arrest for the first year of bail put his life on hold. According to the pre-sentence report Mr. A.M.’s psychotherapist reported that he suffers symptoms consistent with post-traumatic stress disorder. Mr. A.M. also reported that he had experienced thoughts of suicide within the last three years.
[19] The pre-sentence report also documents that Mr. A.M. feels remorseful and is “very ashamed” about his conduct. The author of the report notes that Mr. A.M. indicated that he “could have been a better friend to the victim with regards to her drug addiction”.
[20] Mr. A.M. does have a criminal record. He was convicted in 2008 of assault causing bodily harm and in 2016 he was convicted of assault with intent to resist arrest.
[21] Mr. M.P. is currently 33 years old. A pre-sentence report was prepared and the author of the pre-sentence report was cross-examined during the course of the sentencing hearing.
[22] Mr. M.P. argued that the author of the pre-sentence report tried to unfairly portray him in a negative way in the report. I do not accept that this was the intention of the author of the report. The author appeared to give his evidence on cross-examination fairly. For example, he was cross-examined about the fact that he did not specifically refer to Mr. M.P.’s employment at The Sutton Group. However, he does in his report refer to Mr. M.P.’s current status as a real estate agent and further includes a reference to him being a “top agent”. When questioned about his comment in the pre-sentence report that Mr. M.P. was a “recidivist”, he agreed that it would be more appropriate to refer to him as a “repeat offender”. From my perspective I do not see an important difference between the two terms.
[23] While I have concluded that there was no attempt by the author of the report to portray Mr. M.P. in a negative light, there are comments contained in the report which are of limited value for purposes of sentencing, or where the basis for some of his conclusions is not strong enough to have any relevance for purposes of sentencing. I will refer to some of those issues in these Reasons.
[24] The pre-sentence report indicates that Mr. M.P. was a “rebellious kid as he did not like to listen to his parents or authority figures”. It goes on to state that “such character appears to have stayed with the subject to this day as one of his previous probation supervisors commented that “the subject enjoys working as a real estate agent as he does not have to answer to anyone and does not have to report to a boss””. When cross-examined on the report of Mr. M.P. having a rebellious nature, the author of the pre-sentence report acknowledged that the reference to him being a “rebellious kid” referred to a time early on when Mr. M.P. was in grade four or five. He also agreed that Mr. M.P. has completed three community supervision orders successfully. I have not placed any reliance on the comments in the PSR that Mr. M.P. was a “rebellious kid”. In my view, these comments refer to a time period in Mr. M.P.’s life which is not relevant to his sentencing today.
[25] The report also documents that Mr. M.P. did not express any remorse. When questioned about this on his cross-examination he agreed that this was because Mr. M.P. continued to maintain his innocence. While an expression of remorse can be a mitigating factor, I do not consider his expression of innocence to be in any way a negative or aggravating factor in this case.
[26] Mr. M.P. currently resides with his parents and younger brother in the family home in Richmond Hill, Ontario. He has advised that he intends to move out on his own after this case has been dealt with.
[27] The pre-sentence report indicates that the offences committed by Mr. M.P. are very serious and may have a long-term negative impact on the victim. In this regard, I would note that I have not placed any reliance on this portion of the report. The complainant in this case has elected not to submit any information about the impact of the offences on her life. No evidence is therefore available with respect to the impact on the victim of the offences committed by Mr. M.P.
[28] Mr. M.P. is currently employed as a real estate agent and his career objective is to become a real estate broker eventually. He has a good relationship with his family.
[29] There are two letters of reference in support of Mr. M.P. One comes from an individual who was assisted by Mr. M.P. in getting his real estate license. Another reference talks about how Mr. M.P. has supported her following a serious motor vehicle accident.
[30] Mr. M.P. has a criminal record. In 2007 he was convicted of failing to comply with a recognizance. Also in 2007 he was convicted of possession of property obtained by crime and obstructing a peace officer.
[31] In 2008 he was convicted of fraud under $5,000 and fail to comply with a recognizance.
[32] In 2013 he was convicted of driving with more than 80 milligrams of alcohol in his blood.
Position of the Parties
[33] The Crown’s position is that Mr. A.M. should receive a sentence of 30 months on the conviction under s. 286.3 of exercising control or influence over the movements of the complainant, together with a sentence of 24 months concurrent on the conviction under s. 286.2, together with 6 months concurrent for the offence under s. 286.4 of advertising sexual services. The Crown also seeks a sentence of 6 months consecutive for trafficking in Ecstasy.
[34] With respect to Mr. M.P., the Crown also seeks a sentence of 30 months for the conviction under s. 286.3, plus 24 months concurrent on the conviction under s. 286.2, plus 6 months concurrent on the conviction under s. 286.4.
[35] Both of the sentences proposed by the Crown are subject to reduction for pre-trial custody.
[36] The position of Mr. A.M. with respect to sentence is that the appropriate sentence in his case would be a custodial order of five months concurrent on all charges. To the extent that his pre-credit custody did not cover the five months, Mr. A.M. suggested that an intermittent sentence be served on weekends, together with a probation order.
[37] With respect to Mr. M.P., his position is that the sentence should simply reflect the credit Mr. M.P. is entitled to for pre-trial custody and that no further period of custody should be ordered. Mr. M.P. argues that a suspended sentence is sufficient in the circumstances, together with an order for community service, probation, restitution, and/or a fine.
Ancillary Orders
[38] The Crown seeks a number of ancillary order against both defendants as follows:
(a) As the offences are designated as a primary designated offences under s. 487.04 of the Criminal Code, the Crown seeks an order under s. 487.051 for the defendants to provide samples for DNA analysis.
(b) The Crown seeks an order under s. 743.21 prohibiting the defendants from communicating, directly or indirectly, with the complainant, A.K. and members of her immediate family during the custodial period of the sentence.
(c) The Crown seeks an order forfeiting the cellphone owned by each of the defendants pursuant to s. 490.1(1)(a).
[39] The defendants do not take issue with the first two ancillary orders and they will, therefore, form part of each of the defendants’ sentence. The defendants do object to the forfeiture of their cellphones. The defendant, Mr. A.M., argues that the cellphones are not offence related property. It was submitted that there was no evidence as to how the ads in this case were posted on backpage.com. Further, it was argued that the text messages found on the cellphone cannot necessarily be linked to the use of the cellphone. Even if the text messages are linked to the cellphones, it was argued that this should not be sufficient for them to be defined as offence related property. A comparison was made to someone using a watch or a smart watch during the course of committing an offence. It was argued that the fact that a piece of property was simply used at the time of a criminal offence is not sufficient to lead to a designation of offence related property.
[40] A further argument was advanced by Mr. M.P. that even if the cellphones were designated as offence related property, there was data on the phones which is unrelated to the criminal offences and that the defendants should have an opportunity to remove this data (such as contact lists or photographs) before the forfeiture occurred.
[41] In R. v. Trac, 2013 ONCA 246, the Ontario Court of Appeal sets out what is covered by the term “offence related property”. The Court of Appeal notes that it has a different and potentially broader meaning than does “proceeds of crime”. At para. 80 the court notes that the term “offence related property” reaches property “used in any manner in connection with the commission of an indictable offence. This section is aimed at the means, devices or instrumentalities used to commit offences”. I have concluded that the evidence in this case clearly establishes that the phones owned by the defendants were used in receiving messages from clients and responding to those messages and making arrangements for the proposed sexual activities of the complainant. This is reflected in the messages found on Mr. A.M.’s phone which were received and sent by him. It also includes messages received from Mr. M.P.’s phone. Support for this conclusion is also found in the fact that the backpage.com ads referenced both Mr. A.M.’s and Mr. M.P.’s phones as the means for responding to the ads.
[42] I do not accept the argument that the phones were akin to someone looking at their watch during the commission of an offence. The phones in this case were used as a tool of communication between prospective clients and the defendants as well as a means of communication between the defendants.
[43] I therefore conclude that the cellphones in this case do fall within the definition of “offence related property”.
[44] The second issue raised by the defence is whether Mr. A.M. and Mr. M.P. are entitled to retrieve personal data unrelated to the criminal offences from the cellphones before they are subject to forfeiture. An analogy was drawn to the seizure of a car as offence related property. The defence argues that in this situation the defendants would be entitled to retrieve their personal effects such as photo albums from the vehicle subject to seizure. The difficulty here is that unlike a photo album which may be easily retrieved from the backseat of a vehicle, the data in a cellphone is part of a computer system. The memory in the cellphone does not distinguish between data which was used for an offence and data which is strictly personal. Allowing the defendants to access the data in the cellphone prior to forfeiture carries the risk that offence related data could be compromised. I accept the Crown’s position that when an offender chooses to use a cellphone or other computer-like devices as a tool for committing a criminal offence, the consequence is that if the device then becomes subject to forfeiture, the forfeiture will include all of the data on the device.
[45] I have therefore concluded that in the absence of any evidence to suggest that personal data can be retrieved without compromising offence related data on the cellphone, the cellphone is subject to forfeiture without any further right of the offender to have access to the device. There will, therefore, be a forfeiture order against each of the defendants for the cellphone owned by them and this will form part of each of the defendants’ sentence.
Credit for Pre-trial Custody
[46] Both defendants were kept in custody for 10 days following their arrest. Based on a 1.5:1 credit, each defendant is entitled to 15 days credit for pre-trial custody.
[47] In addition, Mr. A.M. was placed on a house arrest bail which lasted 195 days. He is seeking a credit of 48 days for the house arrest bail.
[48] In R. v. Downes, 2006 3957 (ON CA), the Ontario Court of Appeal noted that stringent bail conditions, especially house arrest, represent an infringement on liberty and is a form of punishment although of a different character than actual incarceration. The court goes on to conclude that the time spent under stringent bail conditions, especially under house arrest, must be taken into account as relevant mitigating circumstances. In the Downes case the defendant was under house arrest for 18 months. The Court of Appeal found that a credit of 5 months was appropriate.
[49] It is apparent that a court may not always give a specific credit for restrictive bail conditions. In R. v. Dragos, 2012 ONCA 538, the Ontario Court of Appeal in reviewing a judge’s sentencing reasons noted that “a precise mathematical calculation of the credit to be given for pre-sentence bail is not required. What is required is that in a proper case consideration should be given to pre-sentence bail and in the final analysis the mitigating weight to be assigned to pre-sentence bail, if any, is a discretionary matter for the sentencing judge.”
[50] The defence proposed and the Crown accepts that Mr. A.M. should receive a credit of 48 days for the house arrest bail. I accept this recommendation. In addition to the house arrest, the court imposed curfews on Mr. A.M. as a condition of bail. Initially the curfew was set at 8:00 p.m. and later at 12:00 a.m. Mr, A.M. seeks additional pre-trial credit of 43 days for the 351 days that Mr. A.M. was required to abide by an 8:00 p.m. curfew. Mr. A.M. further seeks an additional credit of 54 days for the 543 days that he was subject to a 12:00 a.m. curfew.
[51] Mr. A.M. has elected not to put any evidence before the court about any particular hardship he suffered as a result of the bail conditions imposing curfews. It is noted, however, that with the 8:00 p.m. curfew, Mr. A.M. was only allowed use of one computer device which had to be used in the presence of his mother. With respect to the 12:00 a.m. curfew, he was allowed to have one device without any supervision.
[52] There are some authorities which have accepted that curfews may be taken into account as a Downes factor. For example, the defence referred to the Ontario Court of Appeal decision in R. v. Dragos, 2012 ONCA 538. In that case the court dealt with a situation where house arrest bail was not imposed. The Court of Appeal confirmed that strict bail terms outside of house arrest could attract significant mitigation credit in accordance with the Downes decision.
[53] A further recent decision of the Ontario Court of Appeal in R. v. Joseph, 2020 ONCA 733, gives further guidance on the issue of credit for non-house arrest bail conditions. The court explained that mitigation for bail conditions is because stringent bail conditions can be punitive and therefore akin to custody. In assessing the weight of the mitigation to be given the court will consider the stringency of those conditions, their impact on the offender’s liberty and the ability of the offender to carry on normal relationships, employment and activity.
[54] In considering the effect of the curfews in the Joseph case, the court stated that the curfews imposed were not onerous. They required the defendant to be at his residence between 7:00 p.m. and 6:00 a.m. The only unusual feature of the curfew is that it did not provide an exception for employment which was subsequently adjusted.
[55] At para. 111 of their decision, the court states,
The balance of the bail conditions imposed were no doubt unpleasant and stressful, but they were not particularly stringent or punitive in nature, and they were further loosened in November 2016, when Mr. Joseph was discharged after his preliminary inquiry on the human trafficking charges. Although the trial judge found that the bail conditions affected Mr. Joseph’s physical and mental health and prevented him from advancing in life, during his release on bail Mr. Joseph was able to secure employment, develop a relationship with a woman, and have a child.
[56] In their decision, the Court of Appeal in Joseph found the trial judge’s credit for the equivalent for nine months credit was so excessive as to be unreasonable. The court notes that the relevant inquiry is whether the bail conditions were punitive enough to be akin to punishment, thereby warranting mitigation. Focus should therefore be on the effect of the conditions.
[57] In the present case, Mr. A.M. has not introduced any evidence to support a conclusion that the bail curfews were severe enough to be akin to punishment and I therefore decline to give any specific credit for the bail curfew conditions.
Analysis
[58] There are a number of significant mitigating factors in this case. Both defendants appear to have supportive families. Both defendants have also provided letters of support. It is also apparent that neither of the defendants attempted to recruit the complainant into the sex trade. On the contrary, the complainant approached Mr. A.M. and asked for his assistance in operating her escort business. There is also no evidence of violence or threats of violence against the complainant. In this regard, it should be noted that there were charges against Mr. A.M. for assault and uttering a threat. However, these charges were dismissed and he is therefore entitled to be deemed innocent of those charges.
[59] It is also significant to note that the complainant gave evidence that she was never confined by the defendants. She did work for the defendants and left to return home as she wished during the period of involvement with the defendants. Further, no quotas with respect to the volume of work she was expected to do was imposed by the defendants on her.
[60] While Mr. A.M. is currently unemployed, I note that Mr. M.P. is currently gainfully employed as a real estate agent.
[61] There are, however, a number of significant aggravating factors which call for a meaningful deterrent and denunciatory sentence.
[62] The defence argued that this was not a case of exploitation by the defendants. They suggest instead that the defendants were merely assisting the complainant in working as an escort in a situation where she had requested their assistance. They also refer back to my Reasons for Judgment where I found that the Crown had failed to establish that the defendants took advantage of the complainant’s drug dependency to achieve a desired end. (See paras. 34-35, R. v. A.M., 2020 ONSC 4191). At para. 35, I referred to her evidence in cross-examination as follows:
In cross-examination at trial she agreed that the accused never did anything “including the offer of drugs” to prevent her from leaving and she left to go back home when she wanted to. She denied seeing clients so that she could be rewarded with Molly and stated that she was never told that to get Molly she would have to work.
[63] As noted at para. 36 of the Reasons for Judgment, the conclusion I took from the complainant’s evidence is that Molly made it a lot easier to engage in her escort work, but it was not used as a means of keeping her working in a business that she was opposed to engaging in. Overall the main motivation for the complainant to engage in the escort business was the pursuit of financial compensation.
[64] While I agree that the evidence in this case fell short of establishing beyond a reasonable doubt that the defendants used the supply of drugs as a means of keeping the complainant working in a business she was opposed to engaging in, I am also satisfied beyond a reasonable doubt that the complainant had a serious drug dependency and that both defendants took advantage of this dependency to further their own financial objectives.
[65] In the complainant’s evidence which I accept, she testified that she was never left with much money from her work in the sex trade once she paid off her commission to the defendants and paid for the drugs she consumed as well as other expenses. As noted in my Judgment, a message from Mr. A.M.’s phone stated, “you always gotta make sure she’s on a 0” to which Mr. M.P. replied, “always”. The inference I drew from these messages is that the accused felt it was important to keep the complainant in a situation where she had little in the way of funds available. This in turn was used as a motivation for her to keep working in the sex trade for the defendants.
[66] I reject the notion that the defendants were simply trying to assist the complainant by providing services that she had requested. It is apparent that the defendants had little interest or concern in the complainant’s welfare. They generally treated her with distain. This is reflected in many of their messages which were exchanged between them. For example, in a message from Mr. A.M. to Mr. M.P. he writes, “getting mad hits for that ho”. (Message 12600). Another revealing set of messages between the two defendants is found between messages 8336 to 8341. At message 8336 Mr. A.M. writes, “she’s down to work” followed by a message which states, “she sucked me, she wont finish me” which is in turn followed by a further message “I wonna smash her head in”. Mr. M.P. responds “ur such a fucker”. Mr. A.M. then responds, “how is it my fault?” to which Mr. M.P. responds, “bro I dealt with her every day”. In another message at 4484, Mr. M.P. describes the complainant as a “whackadoo”.
[67] In their submissions, the defendants referred to the Ontario Court of Justice decision in R. v. Anwar, 2020 ONCJ 103. In this decision, the court ruled that a number of the sex trade provisions in the Criminal Code violated the Charter rights of the accused. As noted in that decision, however, the provincial court does not have the power to make a formal declaration that a law is of no force or effect under s. 52(1) of the Constitution Act, 1982. As the Court in Anwar found that the provisions in question were not constitutionally valid there was no consideration with respect to sentencing issues. Further, as noted in that decision, the conclusions reached are at variance with the Superior Court decision in R. v. Boodhoo, 2018 ONSC 7205. In the Anwar decision, the court stated, “I accept the submissions regarding the completeness of the record before this court, and respectfully decline to follow the reasoning in Boodhoo”.
[68] In the case before me, no application has been brought with respect to the constitutionality of the Criminal Code convictions which were rendered in this case. This court must therefore proceed on the basis that the Criminal Code convictions are constitutionally valid.
[69] The defendants also refer to a number of decisions where vary lenient sentences were imposed by the court. One of these decisions was the case of R. v. Joseph, 2018 ONSC 4646, 2018 OJ. No. 4241. In that case a jury found that the defendant had procured the complainant believing that she was over the age of 18. The jury also found the defendant guilty of making and possessing child pornography. In imposing sentence, the court noted that the defendant had been acquitted on the charge of human trafficking. Having concluded that the defendant was entitled to a pre-trial credit of nine months custody, the trial judge found that an appropriate sentence was a suspended sentence with probation for a term of one year. Prior to the completion of submissions in this case, the Ontario Court of Appeal released its decision in the Joseph case, supra. The court rejected the trial judge’s conclusion with respect to sentencing and sentenced the defendant to 15 months concurrent on each of the four charges followed by 18 months probation on the terms imposed by the trial judge. The sentence of the Court of Appeal took into account the bail conditions which it treated as a mitigating factor without specifying exactly what credit was being given.
[70] The comments of the Court of Appeal in Joseph are very relevant to the question of sentencing in this case. At para. 95 the court notes that Parliament has chosen to treat the commodification of sexual services as criminal on the basis that prostitution is inherently exploitive and those who sell their own sexual services are victims who need support and assistance, rather than blame or punishment. The court then states, “[i]n his sentencing decision, the trial judge does not reflect an appreciation of this. Instead of treating the offences as inherently exploitive, with CA and RD as victims, the trial judge evaluated CA and RD’s degree of responsibility when situating the seriousness of what Mr. Joseph had done”.
[71] The Court of Appeal in Joseph also makes it clear that the voluntary nature of the complainant’s activity is not a significant factor. The court states at para. 98,
Nor was the trial judge merely noting the absence of coercion by Mr. Joseph, a relevant consideration in determining the seriousness of what Mr. Joseph did. Three facts drive this conclusion: the trial judge had already mentioned the absence of coercion before he described the conduct of CA and RD as voluntary; his comments about the readiness of CA and RD to get involved focused not on Mr. Joseph but on the interest these victims had in selling their sexual services; and at no point did he speak of the offences as inherently exploitive. We are satisfied that the trial judge erred in principle by considering the responsibility of the victims in identifying the seriousness of the offences, and by failing to appreciate the true nature of the offences he was sentencing.
[72] While the defence placed some emphasis on the fact that the complainant in this case did not file a victim impact statement, the Court of Appeal in Joseph dealt with the same situation and noted that these crimes must be taken to have had a significant impact on the complainant, their families and the community at large, even without victim impact statements having been filed.
[73] The length of time during which the criminal conduct continued is also an aggravating factor. The complainant’s evidence is that she started to work for Mr. A.M. shortly after New Year’s Day. She could not precisely recall the year. However, at a minimum, the involvement with the accused continued until October which represents a minimum of nine and half months. The involvement of Mr. M.P. is significantly less than that of Mr. A.M. as he was not involved with the complainant’s escort business until she moved into the house in Newmarket. According to the admitted facts, the move into the house in Newmarket occurred in July, 2017. This contrasts with the Joseph decision where the period of exploitation was one week. (See para. 21.)
[74] In the Joseph decision, the Court of Appeal notes that the defendant did not benefit from the fact that his exploitation of the complainants ended before his arrest. Similarly, this is not a case where the defendants saw the error of their ways. Their conduct only stopped upon their arrest by police.
[75] In the Joseph case, the Court of Appeal stopped short of establishing a precedential sentencing range for sexual commodification offences. However, it is clear that these offences are to be treated as serious offences where denunciation and deterrence remain paramount considerations. This is reflected in the fact that the offender in that case was a “youthful offender” (para. 135) and the sentence was at what the court described as “the low end of the range” (para. 141).
[76] Both defendants have criminal records as outlined previously. Mr. M.P.’s record is far more extensive than that of Mr. A.M.’s. I accept, however, that for both defendants, despite the existence of their criminal records, there may still be some favorable prospects for rehabilitation.
[77] Overall, with respect to the charges relating to participating in the complainant’s sex trade, I have concluded that the defendants conduct would put it at the low end of the second category or the high end of the third category as described in the Foster decision, supra.
[78] Mr. A.M., would you please stand.
[79] Taking into account the principles of sentencing and balancing the aggravating and mitigating factors, I am of the view that an appropriate sentence for Mr. A.M. is global one of 24 months broken down as follows:
On the charge of exercising control pursuant to s. 286.3 of the Criminal Code, he is sentenced to 20 months imprisonment.
On the charge of receiving material benefits pursuant to s. 286.2 of the Criminal Code, he is sentenced to 20 months imprisonment to be served concurrently.
On the charge of advertising sexual services, he is sentenced to 4 months imprisonment to be served concurrently.
On the charge of trafficking, he is sentenced to 4 months imprisonment to be served consecutively.
[80] Mr. M.P., would you please stand.
[81] Taking into account the principles of sentencing and balancing the aggravating and mitigating factors, I am of the view that an appropriate sentence for Mr. M.P. is a global one of 18 months. This sentence is broken down as follows:
On the charge of exercising control contrary to s. 286.3 of the Criminal Code, he is sentenced to 18 months imprisonment.
On the charge of receiving a material benefit contrary to s. 286.2 of the Criminal Code, he is sentenced to 18 months imprisonment to be served concurrently.
On the charge of advertising sexual services, he is sentenced to 4 months imprisonment to be served concurrently.
[82] Pre-trial custody credit is to be given to each of the defendants in accordance with these Reasons. In addition, the sentences are to include the ancillary orders as described in these Reasons. Finally, following completion of their sentence, the defendants shall be subject to probation for a term of 18 months, the terms of which shall be addressed with counsel.
Justice M. McKelvey
Released: December 17, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
A.M. and M.P.
Defendants
REASONS FOR SENTENCE
Justice M. McKelvey
Released: December 17, 2020