COURT FILE NO.: CR-17-737

DATE: 2022 05 18

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JASON DEIDUN and DANA BERNARD

J. Vlacic, for the Crown

H. Saini, for Jason Deidun

G. Pannu, for Dana Bernard

HEARD: March 15, 25 and April 30, 2021

reasons for sentencing

Shaw J.

Overview

[1] Following a four-week trial, a jury found Mr. Deidun and Ms. Bernard guilty of two counts of recruiting, holding, concealing, or harbouring a person who offers or provides sexual services for consideration, or exercises control, direction, or influence over the movements of that person contrary to s. 286.3(1) Criminal Code, R.S.C. 1985 c. C-46 (“Criminal Code”). They were also found guilty of two counts of receiving a financial or other material benefit from those activities contrary to s. 286.2(1) Criminal Code. They were found not guilty of a separate count of procuring one of the complainants, D.H. I must now determine the fit and appropriate sentence for each offender

[2] In a three-day sentencing hearing, ending April 30, 2021, I also heard fact submissions, as there was considerable disagreement between the parties. As such, I must determine the basis upon which the jury found Mr. Deidun and Ms. Barnard guilty.

[3] The sentencing hearing was adjourned several times. The initial adjournments were requested by Mr. Deidun, as his lawyer at the time said his client was not fit. Mr. Deidun was assessed, and a report delivered. He later resiled from that position and his fitness was no longer an issue. Further adjournments were requested so that both Mr. Deidun and Ms. Bernard could retain new counsel. Furthermore, following the last day of sentencing submissions, the offenders launched an application challenging the constitutional validity of ss. 286.2 and 286.3 of the Criminal Code. The application was dismissed following the release of R. v. N.S., 2022 ONCA 160, in February 2022, which held that those sections were constitutionally valid.

[4] Throughout these reasons, my comments apply to both offenders equally. Where there are different considerations for either, I will expressly state so.

Circumstances of the Offence

[5] Section 724(2) of the Criminal Code sets out two important principles that must guide the sentencing judge in determining the relevant facts following a conviction by jury. According to s. 724(2)(a), the sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty”. Section 724(2)(b) states that the judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact”. As per s. 724(3)(e), should any such facts be an aggravating factor, it is the Crown’s burden to prove those facts beyond a reasonable doubt.

[6] In R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, the Supreme Court of Canada set out the two principles which govern the sentencing judge in this endeavour. At paras. 16-18, McLachlin C.J., writing for the unanimous Court, found that the sentencing judge must determine the facts necessary for sentencing and must not accept as fact any evidence consistent only with a verdict rejected by the jury. Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should come to their own determination of the relevant facts. To rely upon an aggravating factor or a previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt but to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities.

[7] Thus, I am not obliged to arrive at a complete theory of the facts but only those necessary for deciding the appropriate sentence.

[8] Applying these principles, the following are the essential facts to the jury’s verdict in this matter. As Mr. Deidun and Ms. Bernard had different roles, and as there were two separate complainants, I will breakdown the facts as between each complainant.

[9] A.B. is Ms. Bernard’s daughter. She was 20 at the time of these offences. She was originally charged with the same offences involving the same complainants. She ran away from home at the age of 15. She was under the care of the Children’s Aid Society. She was not in contact with her mother or Mr. Deidun for several years. She messaged Ms. Bernard in May 2015 and asked if she could live with her. Ms. Bernard agreed and A.B. moved in and began paying rent.

[10] She was sentenced after the trial was completed and received a conditional discharge. She was called as a Crown witness at this trial.

[11] During my charge to the jury, I cautioned the jury to use the greatest of care and caution about A.B.’s evidence. On the eve of trial, A.B. pled guilty to one count of receiving a financial benefit. At the time she testified, other charges were outstanding, and she did not know if the charges would be withdrawn. For that reason, I instructed the jury with a Vetrovec warning and told the jury to look for independent confirmation of her evidence before they relied on it.

[12] The offenders’ position is that A.B. was the person most involved with the complainants and, as such, bears the most culpability for her involvement in exploiting the two complainants. The offenders raise the issue of parity on this sentencing. I will address that later in these reasons.

[13] During submissions, counsel for the offenders argued that in making my findings of fact, I should not rely on A.B.’s evidence unless it was confirmed by another witness or other evidence. The Crown’s position was that I should approach her evidence with caution but that confirmatory evidence of all her evidence is not necessary to accept any of her evidence. I agree with the Crown’s submission, and I will use great care and caution when assessing A.B.’s evidence to make these findings of fact. For the most part, my findings of fact are based on the evidence of the other witnesses who testified, and the substantial documentary evidence filed as exhibits.

[14] The offenders’ evidence at trial was a complete denial of any involvement with A.O’s. and D.H.’s sex work or any knowledge that such activity was going on in hotel rooms in A.B.’s presence. This conflicts with the evidence of A.O. and D.H. who both testified about interacting with Mr. Deidun and Ms. Bernard about their work. Their denial also conflicts with the documentary evidence which I will review.

[15] I reject the offenders’ evidence wherever it conflicts in a meaningful way with the evidence of A.O. and D.H. The jury, through its verdict, rejected the offenders’ evidence and found that they were both guilty of two of the three offences for which they were charged. Furthermore, I found both complainants to be credible. While they admitted that their drug use impacted their memory to some degree, their evidence was consistent with much of the objective evidence with respect to their attendance at hotels that were booked by Ms. Bernard.

[16] I am more cautious, however, when assessing the conflicting evidence between A.B. and the offenders. For example, while A.B. testified that she was directed by Mr. Deidun to pick up both complainants in Oshawa, which Mr. Deidun denied, the jury did not accept her evidence as they found both offenders not guilty of procuring D.H. and the Crown did not purse that with respect to A.O.

[17] Based on the totality of the evidence, A.B., Mr. Deidun and Ms. Bernard were all involved with exercising control, direction, and influence over the movements of the complainants and receiving a financial benefit from their sex work. A.B.’s role was to “run the phones” meaning she received texts and phone calls to schedule customers. She was in the hotel rooms with the complainants while they worked. She collected the money from the customers. She also took pictures of the complainants to post as advertisements on Backpages, an internet site that was used at the time for sex workers to advertise and connect with customers. I accept the complainants’ evidence where it differs from A.B.’s evidence with regards to how she interacted with them.

[18] Ms. Bernard had initial meetings with both complainants and gave them some direction about their sex work. She then booked hotels where they worked. Mr. Deidun collected money from A.B., supplied drugs on occasion, and was involved with driving the complainants to various hotels. Despite denying knowing what A.B. and the complainants were doing in the hotels, I find that both offenders were involved in the exploitation of the complaints through A.B. who had more direct contact with them. This was a three-person operation with the offenders and A.B. assuming different aspects of the overall control, direction, and influence of the movement of the complainants, for their own profit.

A.O.

[19] The offences involving both complainants took place over an approximate five to six-week period between August and September 2016.

[20] A.O. turned 18 in June 2016. She knew A.B. since 2011. She had been living in shelters in Oshawa for several months and was addicted to drugs including cocaine, crack, molly, and crystal meth. In August 2016, she messaged A.B. and told her that she could no longer live with her mother. The following day, A.B. and a man named Nick picked her up and drove her to Barrie. On the way, A.B. and Nick talked to her about working as an escort including taking pictures to post in advertisements, rates to be charged to customers and how money would be split. A.B. told her that she would work from hotel rooms that were booked in her mothers’ name and that Jason Deidun and Nick would drive her to the hotels where she would provide sexual services.

[21] A.B. and Nick drove A.O. to a hotel in Barrie when she met the two offenders for the first time in the hotel parking lot. While this meeting was not disputed, there was conflicting evidence about what was said at that meeting. As I have found the offenders are not credible witnesses, I accept A.O.’s evidence that Ms. Bernard told her how many days she would be working and that she would be booking the hotels in her name. She also told A.O. of a safe word to use if there was an emergency and she needed back-up. Mr. Deidun told her to message him if she needed any cocaine to stay awake, and he would bring it to her. He also told her she looked pretty and had potential.

[22] A.B. stayed with A.O. in the hotel room in Barrie. They discussed rates, a daily quota, and if A.O had any restrictions on her sex work. A.B. took pictures of A.O. and posted advertisements on Backpages. A.B. also took calls and texts from customers and collected money from them. They stayed at the hotel in Barrie for at least two nights while A.O. serviced numerous clients. A.O. used drugs, some of which she brought with her, and was impaired while she worked in Barrie.

[23] A.B. told A.O that she would get 50% of what she earned and the other 50% would be split between A.B. and Mr. Deidun. Her daily quota was between $1,000 and $2,000. Mr. Deidun came to Barrie to collect the money A.O. earned; she only received $300 from her work. She saw the money being split between A.B. and Mr. Deidun once when they worked in Barrie.

[24] I reject Mr. Deidun’s evidence that he did not travel to Barrie other than the one time when he initially met A.O. I do so, as the cell tower phone records show that his cell phone was registering off cell towers in Barrie on August 10 -13, 2016 while A.O. was in Barrie. His explanation that someone else must have had his phone rings hollow. This was the same excuse used by Ms. Bernard when she was confronted with evidence that her cell phone was registering off cell towers in Barrie. Mr. Deidun’s second explanation that he was not in Barrie on those days, as he was working, conflicted with the work records from Longo’s, his employer, that show that he worked only 46 minutes on August 9 and, although he was scheduled on August 10, 11, 12 and 14, he did not work those days. Given this independent evidence, I find as a fact that Mr. Deidun travelled back and forth to Barrie to collect money A.O. earned from her sex work.

[25] According to cell phone records, there were numerous phone calls between Mr. Deidun’s cell phone and A.B.’s cell phone between August 8 and September 3, 2016, confirming regular and consistent contact between them. I reject Mr. Deidun’s vague explanation, that there must have been something going on with A.B., to explain the many phone calls. The purpose of these calls was to stay in contact with A.B. about the complainants’ sex work.

[26] There were also cell tower records showing that Ms. Bernard’s cell phone was registering off a cell tower in Barrie on August 8, 11, and 12, 2016. She denied being in Barrie on August 8 and 11 but said she may have been there on August 12 with Mr. Deidun to go fishing. She said someone must have had her cell phone on those prior days. I reject that explanation. As with Mr. Deidun, this excuse rings hollow. On those dates, she was travelling to Barrie with Mr. Deidun when he collected money.

[27] After working in Barrie, A.O. returned to the Toronto area with A.B. She worked in hotels during the week and stayed at the offenders’ home on the weekends until she left in mid-September 2016. There were group discussions at the home about what hotel to go to and Ms. Bernard would go online and book the hotels. A.O. worked in different hotels in Toronto and was driven at times by Nick and Mr. Deidun. A.B. was with her in the hotels while she worked.

[28] At each hotel, A.B. would take pictures of A.O. and post them online as ads. During this time, A.O. continued to use crystal meth regularly. Mr. Deidun also regularly supplied her with marijuana and cocaine on a few occasions.

[29] A. B. collected the money A.O. earned and she told her when she had a customer. She ran the phones and booked customers. Once, when A.O. told A.B. that she wanted to go home, A.B. told her she could not.

[30] A.O. thought she received $200 from the money she earned on a couple of occasions from working in hotels in the Toronto area. If she did not make enough money during the week, she had to work on the weekends.

[31] A.O. was also required to work when she had her period. Both offenders and A.B. told her use a sponge. She called Mr. Deidun once from a hotel asking if she could go back to the house after an incident with a customer while on her period, which she found embarrassing. There was another occasion when she was accused of bringing bed bugs to the home and Mr. Deidun told her she had to work to pay the cost to fumigate the house.

[32] Ms. Bernard’s denials about being involved with or having any knowledge that A.O. was performing sex work at hotels with A.B. was rejected by the jury. Excerpts of text messages exchanged between Ms. Bernard and A.B. between August 21-24, 2016, and August 31 to September 2 contradicted her evidence in that regard. These texts messages are also confirmatory evidence of A.B.’s testimony of Ms. Bernard’s involvement. They confirm that Ms. Bernard was aware A.O. was performing sex work. For example, in one text message, A.B. told Ms. Bernard that A.O. was in a call and Ms. Bernard asked if it was the first one. She also asked how much A.O. was charging an hour. In another text, Ms. Bernard told A.B. that Mr. Deidun was at the hotel to pick them up, but they did not wake up when he answered the door. In another text message, Ms. Bernard told A.B. that A.O. needed to call her father and lawyer. There were also other messages where A.B. told Ms. Bernard that A.O. had a trick inside the hotel room. In another message, Ms. Bernard told A.B. that she could not find A.O.’s ad. In another text exchange, there was a discussion about moving hotels.

[33] Ms. Bernard also denied booking hotel rooms. I reject her evidence. Registration cards in Ms. Bernard’s name from the Quality Inn in Barrie for August 8, 2016, and the Monte Carlo Inn in Barrie for August 10-11, 2016, were filed as evidence. There was video surveillance of Ms. Bernard at the front desk in the lobby at the Monte Carlo Inn on August 10, 2016. Ms. Bernard admitted booking that hotel room but said it was because she did not want A.B. and A.O. staying in her home.

[34] Ms. Bernard booked a room at the Holiday Inn in Mississauga on August 20, 2016. In addition to a registration card with her name on it, there was video surveillance from the lobby of that hotel from that day showing Ms. Bernard at the front desk. There was also video showing Mr. Deidun in the lobby with Ms. Bernard. They are then seen getting in the elevator. There was also video surveillance showing A.O. and A.B. leaving that hotel on August 21, 2016.

[35] Ms. Bernard and Mr. Deidun tried to explain why they were seen at the hotel. Ms. Bernard testified that she booked the hotel room so that A.B. could attend a party. Mr. Deidun said he was at the hotel only to use the pool and hot tub. Having found the offenders not credible, I reject their explanation about why they were at the same hotel where A.O. was working. They were both at the hotel knowing that A.O. was working as a sex worker, for their profit, in a hotel room paid for by Ms. Bernard.

[36] Ms. Bernard also booked the Marigold Hotel in Brampton for September 1-3, 2016. I reject Ms. Bernard’s explanation that she booked it for herself and A.B. as they both suffer from asthma and their home was going to be sprayed for a bed bug infestation that would have triggered their condition. Ms. Bernard’s evidence about a picture she took of herself at that hotel was inconsistent with the objective evidence that the hotel was booked for the following day. This was another example of Ms. Bernard’s evidence at trial being contradicted by the documentary evidence.

[37] Ms. Bernard booked three rooms at the Sandman Hotel in Oakville for September 3, 2016. She originally booked the Sandman Hotel near Pearson Airport, but it was full when they went to register so they were moved to the hotel in Oakville. I reject the offenders’ evidence that they booked the hotel, to allegedly attend an event in downtown Toronto. It defies common sense that they would book three hotel rooms to attend an event in Toronto when they live in Toronto. I accept A.O.’s evidence that she was at that hotel to perform sex work, with the knowledge of the offenders.

[38] Web histories from Ms. Bernard’s cell phone showed numerous searches for hotels and booking sites such as Booking.com between August 29 and 3, 2016. I reject Ms. Bernard denial that she did not do those searches and that other people living in the home had access to and were using her phone.

[39] The documentary evidence filed is consistent with the evidence of the two complainants and A.B. that Ms. Bernard’s role was to manage the booking of the hotels for the two complainants to perform sex work. Ms. Bernard was aware of and maintained regular contact with A.B. to monitor that work.

[40] A.O. drove to Oshawa with A.B. and picked up D.H. She and D.H. worked together at a few hotels. A.O. left the offenders’ home and stopped working as a sex worker before D.H. left the home.

[41] A.O. left the offenders’ home in mid-September 2016. She told Mr. Deidun that she was leaving, and he told her she was intelligent and could do what she wanted. He did not try to stop her. He did not threaten her. After she left, Mr. Deidun messaged her through Facebook on September 19, 2016, and asked when she was coming home and if she needed a ride. She did not respond.

[42] Neither Mr. Deidun or Ms. Bernard were involved with procuring, recruiting, or concealing A.O.

D.H.

[43] D.H. met A.B. in June or July 2016. She was 22 years old at the time. She also used drugs. She messaged A.B. in September 2016 for advice on an easy way to make money as she wanted to leave Oshawa and live in Toronto. She had just broken up with her boyfriend, had no place to live, and wanted to start working as an escort. A.B. and another man picked her up and brought her to the offenders’ home.

[44] While A.B. testified that Mr. Deidun told her to go pick her up, the jury found both offenders not guilty of procuring D.H. This flows from D.H.’s evidence that she approached A.B. for assistance in working as an escort. There was no evidence that either offender procured, recruited or concealed D.H.

[45] When D.H. arrived at the offenders’ home, she went into a bedroom with Ms. Bernard who told her about the rules of escorting, the pay, the different types of calls, and about taking pictures to post ads on Backpages. Ms. Bernard told her she could stay at her home. Mr. Deidun came into the bedroom holding money and told her she could earn this much if she went into the business. This enticed D.H. Both offenders told her about what rates to charge. They also told her that she was not to drink, do drugs, or party with the customers. She told Ms. Bernard the type of sex work she would not perform.

[46] It was mostly A.B. who took D.H.’s picture and posted ads on Backpages. Once, Ms. Bernard and Mr. Deidun took and posted her picture. A.B. and the offenders would make calls to book hotels. When she did not work, she would stay with the offenders in their home.

[47] A.B. posted ads on Backpages, received texts and phone calls from customers, and told D.H. when customers were coming. A.B. would stay with her in the hotel rooms and wait in the bathroom when she was with a client.

[48] Both A.O. and D.H. testified about an incident at the Super 5 when both awoke to A.B. being forcibly removed from the hotel room. While A.O. could not identify the person who entered the room, D.H. heard Mr. Deidun yelling at A.B. and she saw him pull her off the couch and out of the hotel room. She said this scared her as she did not want Mr. Deidun to hurt her as he was angry.

[49] A.B. testified that Mr. Deidun came to the hotel as he was angry that she missed calls from customers; he was able to monitor calls coming to A.B.’s phone through an app. I accept that evidence and reject Mr. Deidun’s explanation that he went to the hotel to remove A.B. from the hotel room out of concern for her as he did not want her associating with the complainants when he found out they were engaging in sex work in the hotel. This evidence is inconsistent with his text message to A.O. after she left asking if she was going to come home. If he was so upset with their sex work, he would not be texting her to come home after she left. This explanation is also inconsistent with my finding that Mr. Deidun was involved with the exploitation of the complainants from the moment he met them.

[50] There was one occasion when D.H. was working at the Quality Inn near Pearson airport, and she and A.B. called Mr. Deidun do bring them cocaine to keep them awake and he did.

[51] D.H. was not involved with Mr. Deidun very much and only spoke with him a couple of times. She never witnessed any violence in their home.

[52] D.H. was not sure how much money she earned but it was not more than $500. A.B. collected the money from customers. While D.H. testified that either Mr. Deidun or Ms. Bernard told her that she would get half of the money she earned and Mr. Deidun would get the other half, she did not see any money being given to either Mr. Deidun or Ms. Bernard.

[53] D.H. worked for two weeks and then left the offenders’ home. She and Mr. Deidun exchanged text messages between September 23 and September 27, 2016, after she left. Those text messages dealt with a sum of money D.H. earned from a customer using a payment app and Mr. Deidun was seeking payment of that money. I reject Mr. Deidun’s evidence that those texts dealt with money owed to someone else and that he was inquiring with D.H. about using that app for his landscaping business. The texts are clear that he was looking for money D.H. owed to him.

[54] When D.H. left the home, neither Mr. Deidun nor Ms. Bernard attempted to stop her. She said she was staying with her father and left her personal items in the house as she did not want to tell Mr. Deidun she was leaving permanently. She returned to the house to collect her personal items a few days later.

[55] Based on the totality of the evidence, I find as a fact that Mr. Deidun and Ms. Bernard exercised control, direction, and influence over the movements of both complainants. They were involved in the day-to-day operations and not just at the outset when they met the complainants. Ms. Bernard did so by searching for, booking, and paying for the hotels and at times posting advertisements. She also maintained contact with A.B. while she was at the various hotels. Mr. Deidun did so by driving the complainants to the hotels and providing them with drugs. He also maintained regular with A.B. to monitor the complainants’ sex work. Both offenders controlled not only where the complainants worked but when they worked. They also harboured the complainants by providing them with shelter at their home when they were not working at the hotels. The text messages between Ms. Bernard and A.B. and the numerous phone calls between A.B. and Mr. Deidun confirm A.B.’s evidence that Mr. Deidun and Ms. Bernard were involved with A.B. and the complainants on a regular basis. They played an active, not a passive role in this for-profit exploitation of the complainants. Based on the totality of the evidence, I am satisfied, beyond a reasonable doubt, that the offenders exercised control, direction, and influence over the movements of the complainants.

[56] Mr. Deidun also collected money earned by the complainants from A.B. There was no evidence, however, that Ms. Bernard received any money directly. Nevertheless, the jury convicted her of that offence. I agree with the submission of counsel for Ms. Bernard and the Crown that the finding by the jury that she received a financial benefit was through the rent A.B. paid to her. This was an indirect benefit as the rent money she received from A.B. was collected by A.B. from the sex work performed by the complainants.

Principles of Sentencing

[57] The principles of sentencing are set out in ss. 718, 718.1, and 718.2 of the Criminal Code.

[58] According to s. 718 of the Criminal Code, the fundamental purpose of sentencing is to protect society, to contribute to respect for the law, and to maintain a just, peaceful, and safe society by imposing just sanctions that have one or more of the following objectives:

a) Denouncing unlawful conduct;

b) Deterring this offender and others from committing offences;

c) Imprisoning offenders where necessary to separate them from society;

d) Assisting in rehabilitating offenders and in appropriate circumstances encouraging their treatment;

e) Providing reparation for harm done to victims or the community;

f) Promoting in offenders a sense of responsibility for and acknowledgement of the harm they have done to victims or to the community.

[59] Pursuant to s. 718.1 of the Criminal Code, a sentence should be proportionate to the gravity of the offence, and the degree of responsibility of the offender.

[60] Section 718.2 of the Criminal Code sets out other sentencing principles. Those applicable to this case are as follows:

a) That a sentence may be increased or decreased depending upon the presence of any relevant aggravating or mitigating circumstances relating to the offence or to the offender;

b) That a sentence should be similar to those imposed on similar offenders for similar offences committed in similar circumstances;

c) An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,

d) All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[61] The object of denunciation is a sentence that communicates society’s condemnation of the offender’s conduct. When determining the fit and appropriate sentence in this case, the court must impose a sentence that denounces criminal conduct that targets and exploits young, vulnerable women. Young women who may be addicted to drugs, unemployed, homeless or living in precarious arrangements, and adrift from family support, are often the targets of those who prey upon them to earn money by the selling of their sexual services. Both Mr. Deidun and Ms. Bernard preyed on the complainants for their own profit. This conduct is reprehensible and must be denounced.

[62] The objective of general deterrence is to impose a sanction that will discourage others from engaging in criminal conduct. This objective must also be considered when dealing with offences that involve the exploitation of young, vulnerable women for profit.

[63] Restraint is also an important principle in sentencing; the least intrusive sentence that is a appropriate and just should be imposed. That means that imprisonment is the sanction of last resort: R v. Hamilton and Mason (2004), 168 C.C.C. (3d) 128.

[64] Another important principle, about which I heard extensive submissions, is the parity principle. Generally, that means that offenders who commit similar offences in similar circumstances should receive similar sentences. I will address this in more detail later in these reasons.

The Impact on the Victims

[65] The two victims wrote victim impact statements that were filed by the Crown. A.O. described feeling broken and sad. She said that what happened to her led to her losing custody of her child due to a lack of parenting skills. She cannot forget what happened to her. D.H. described suffering from mental health issues including anxiety and depression. She described having flashbacks about what occurred. She described using drugs to numb her feelings and thoughts about what happened. She is afraid to travel to the Greater Toronto Area.

Circumstances of the Offenders

Jason Deidun

[66] Mr. Deidun is 42 years of age. He was raised by his single mother who works full time. He currently lives with her in Brampton. She has been his surety while on bail and is supportive of her son. He has not had much contact with his father. He has four sisters with whom he has a good relationship.

[67] Mr. Deidun told the author of her pre-sentence report (“PSR”) that he had a pretty good childhood. He described playing a variety of sports and having a lot of friends. His mother also said he had a good childhood.

[68] Mr. Deidun completed grade 12 and has a diploma in culinary arts. He worked at various restaurants on a part-time basis between the ages of 18 and 21. He has also worked as a landscaper and various labour and warehouse jobs. He was working full-time as a grocery store butcher until he was charged with the offences before the court. He has received a disability pension since 2016 as he has been diagnosed with multiple sclerosis (“MS”).

[69] Mr. Deidun filed a letter from Canadian Tire confirming his full-time employment since May 2020. He has since left that job and is working for another company that helps with presentations in stores.

[70] He does not have a problem with substance abuse.

[71] According to Mr. Deidun’s mother, he got involved with the wrong people in his late teens and early 20s.

[72] Mr. Deidun told the author of the PSR that he does not feel remorse regarding the offences before the court. He does not feel badly for the victims and blames A.B.

[73] Mr. Deidun was diagnosed with MS in 2016. He also suffers from sleep apnea. He filed medical documentation for this sentencing hearing describing his condition and the medication used for his treatment.

[74] Mr. Deidun has a criminal record. He has five prior convictions dating back to 2001. These include possession of a schedule substance in 2001, possession of stolen property and theft over $5,000 in 2001, several convictions in 2005 including use of a firearm, aggravated assault, and conspiracy to commit murder, fraud over $,5000 in 2008, and obstructing a peace officer in 2015. He was sentenced to four years in 2005. While incarcerated, he attended counselling programs.

[75] Mr. Deidun has been in a common-law relationship with Ms. Bernard since 2007 and has financially supported her. He says they have an excellent relationship but have not been in contact due to bail conditions.

Dana Bernard

[76] Ms. Bernard will soon be 44 years of age. She was born in Toronto and raised by her mother. Her alcoholic father abused her mother. She told the author of the PSR report that her first memory of her father is of him holding a knife to her mother’s throat. Ms. Bernard does not have a relationship with her father.

[77] When she was in high school, Ms. Bernard was bullied, and, therefore, often missed school. She was kicked out of her mother’s and stepfather’s home due to problems at school and she moved in with her father and stepmother when she was 16 years old. When her stepmother was not home, her father would abuse her. When she was pregnant with her first child at the age of 17, he threw her against a wall and threatened to kick her stomach. She moved out and returned to live with her mother after giving birth. She had a very close relationship with her mother who passed away in 2000.

[78] Ms. Bernard’s sister was her initial surety, but their relationship is now strained.

[79] Ms. Bernard has three biological children and has been involved with the CAS on an off since 1996. Her eldest is A.B. She also has a 17-year-old daughter, who is in the care of the CAS, and a 13-year-old son, who is living with his father’s parents. She has no contact with her children.

[80] Ms. Bernard reported being in abusive relationships with men for most of her life. She described her relationship with Mr. Deidun as being good and without instances of physical abuse.

[81] Ms. Bernard left high school before completing grade ten. She currently receives Ontario Works. She reports no issues with drugs or alcohol. She has never maintained employment for more than three months and last worked in October 2018.

[82] Ms. Bernard told the author of the PSR that she has been diagnosed with Complex Post-Traumatic Stress Disorder, severe anxiety, and depression. She attributes the PTSD to childhood trauma which also included one of her mother’s boyfriends attempting to engage in sexual activity with her. She is currently seeing a psychiatrist. Her doctor confirmed the diagnosis and that she currently uses marijuana for treatment.

[83] She reported that she attempted suicide on nine occasions since 2007. The last such attempt was in May 2016 when she cut her wrists. She blames this incident on A.B. She still thinks of suicide on occasion. A worker with Peel Canadian Mental Health Association reported seeing Ms. Bernard weekly since February 2018. She says Ms. Bernard would benefit from psychotherapy and steps have been taken to refer her for treatment. She is engaged in treatment and wants the help being offered.

[84] Ms. Bernard also filed medical records describing her mental health issues.

Position of the Parties

[85] The Crown seeks a global sentence of nine years for Mr. Deidun reduced to eight years to account for the collateral consequences of the COVID-19 pandemic. The Crown’s position is that this should be apportioned as six years for the offence of exercising control of A.O. and three years for D.H., adjusted down to two years. With respect to Ms. Bernard, the Crown seeks five years for exercising control adjusted to four years to account for the collateral consequences of the COVID-19 pandemic. That would be apportioned as three years for A.O. and two years for D.H., adjusted down to one year.

[86] The Crown also seeks ancillary orders that are not contested by the offenders. This includes a DNA order pursuant to s. 487.051 of the Criminal Code, a s. 109 mandatory prohibition order for life, and a s. 743.21 non-communication order for A.O., D.H., and A.B.

[87] Both Mr. Deidun and Ms. Bernard assert that a conditional sentence of two years less a day, to be served within the community, is the appropriate sentence for each of them.

Analysis

Case Law

[88] A review of case law reveals that there is a wide range in sentences for those convicted of an offence under s. 286.3(1) of the Criminal Code. Ranges are guidelines. I have wide discretion in determining the appropriate sentence as it is a very individualized process which reflects the unique circumstances of each offender and the nature of the offence. This is particularly so in dealing with offences that involve the exploitation of young women engaged in sex work, as there can be a wide variation in the nature and degree of the exploitation committed by the offender.

[89] I am also mindful that the maximum sentence for those convicted of an offence under s. 286.3(1) and s. 286.2(1) is 14 and 10 years, respectively.

[90] Both defence and Crown counsel referred to several decisions which set out a wide range of sentences from under two years to the maximum sentence. The cases clearly reflect that the sentence imposed is dependent on the facts surrounding the nature, degree, and extent of the exploitative behaviour of the offenders. For that reason, I will not review each decision in granular detail other than to note the wide sentencing range that can be imposed. I also note that a number of the decisions the Crown filed also included offenders charged with human trafficking, which is not applicable in this case.

[91] The Crown referred to unreported oral reasons from Durno J. in R. v. Johnson, dated August 15, 2018, following a plea by the accused to exercising control over a single 18-year-old complainant over a period of five months and receiving a financial benefit. The offender had a serious record, which included a previous conviction related to the sex trade. He assaulted the complainant once after the police were called. Durno J. imposed a sentence of six and a half years for the sex trade offences that was reduced to six years.

[92] In R. v. Byron, 2014 ONSC 990, a six-year sentence was imposed on an offender who coerced a 17-year-old to become a sex worker. The offender did not have a criminal record. The offender assaulted the complainant and he committed other offences while on bail.

[93] In R. v. M.C.D., 2017 ONSC 3081, offender plead guilty and was sentenced to seven years for human trafficking, receiving material benefits, kidnapping, assault causing bodily harm, and using an imitation firearm. The offender had a lengthy criminal record.

[94] In R. v. Mfizi, [2008] O.J. No. 2430 (S.C.), after a trial, the offender was sentenced to eight years, which was upheld on appeal. The complainant was 17 and was assaulted several times by the offender.

[95] In R. v. Miller, [1997] O.J. No. 3911, the offender was sentenced to just short of four years for 10 counts that included keeping a common bawdy house and living off the avails.

[96] In R. v. Antoine, 2020 ONSC 181, the accused was convicted of two counts of trafficking in persons, two counts of procuring, and one count of receiving a material benefit. There were two complainants; the conduct lasted several months with one, and only a few months with the other. The offender had a record and was involved with the complainants on a regular basis. He provided them with drugs. He was sentenced to eight years.

[97] In R. v. Crosdale, 2019 ONCJ 3, the accused used violence to control the two complainants, aged 16 and 19 years. The offender did not have a record and did not receive any of the money. He was given a six-year global sentence which included convictions for human trafficking, child pornography, and assault.

[98] The Crown relies on R. v. Morgan, 2020 ONCA 279, which deals with the impact of COVID-19 on sentencing. The offender was sentenced to two years less a day. On appeal, he sought a reduction in his sentence due to the COVID-19 pandemic. The Court found that it could take judicial notice of the impact COVID-19 had on Canadians and the current state of medical knowledge of the virus, including its mode of transmission and methods to avoid its transmission. The court found that the appellant’s submissions fell into the category of collateral consequences for sentencing purposes, meaning that a particular sentence would have a more significant impact on the offender due to his or her circumstances. The court noted, however, that the collateral consequences could not be used to reduce a sentence to the point where it becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender. The Court found that the original sentence was already at the low end of the range and did not reduce the sentence. The court also noted that the Ontario Parole Board could consider the impact of COVID-19 in deciding whether the appellant should be granted parole.

[99] The defence relies on R. v. A.M., 2020 ONSC 7919. The offender was found guilty at trial of exercising control, direction, or influence over the movements of the complainant, receipt of a material benefit, advertising sexual services for consideration, and trafficking in MDMA. Another accused was convicted of the same offences, except for the drug trafficking charge. The first offender was employed and supported by his family. He suffered from mental health issues, felt remorse, and had a modest criminal record. The second offender worked as a real estate agent, had a good relationship with his family, and a modest criminal record. There was no evidence of violence or threats against the complainant. The complainant had approached the offenders for assistance in operating her escort business. There were no quotas imposed. She lived at her own home. She did not receive much of the money she earned. The offenders provided her with drugs.

[100] In A.M., one offender was sentenced to 20 months for exercising control pursuant to s. 286.3 and 20 months concurrent for receiving a material benefit. The second offender was sentenced to 18 months for the same offences.

[101] The defence also relies on R. v. Sharma, 2020 ONCA 478, in which the court struck down s. 742.1(c) of the Criminal Code, which removed the availability of a conditional sentence for offences where the maximum penalty is 14 years or [?] life, under ss. 7 and 15 of the Charter of Rights and Freedoms.

[102] All counsel referred to R. v. Tang, 1997 ABCA 174, [1997] A.J. No. 460 (C.A.) and R. v. Miller, [1997] O.J. No. 3911 (Gen. Div.), which set out various factors that may be relevant when considering a sentence for procuring and prostitution related offences. They include:

a) The degree of control imposed;

b) The amount of money received and the extent to which the prostitute is allowed to retain the earnings;

c) The age of the prostitute and their numbers;

d) Any special vulnerability of the prostitutes;

e) The working conditions of the prostitutes;

f) The degree of planning and sophistication;

g) The size of the operation;

h) The duration of the exploitative conduct;

i) The degree of violence;

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

k) The effect on the prostitute of the exploitation, and

l) The extent to which the pimp demanded sexual favours himself from the prostitutes.

[103] In Miller, Hill J. added some additional factors to consider including:

m) The age of the customers attracted to the bawdy-house operation;

n) Steps taken by the accused to evade detection by authorities; and

o) Attempts by the accused to prevent a prostitute from leaving his employ.

[104] While these decisions are now quite dated, the factors identified remain helpful in assessing the nature and degree of the exploitative conduct of the offenders.

[105] I will now consider the Tang/Miller factors.

[106] The degree of control imposed by the offenders was not significant. There was no evidence of any direct threats made to the complainants. The control was exerted in an indirect way. Mr. Deidun exerted control by providing drugs. In my view, both accused exercised direction and influence over the complainants’ movements. Ms. Bernard did so by searching for, booking, and paying for hotel rooms. Mr. Deidun did so in driving the complainants to the hotels. They both met with the complainants and gave them directions on their escorting work including when and where they would work and where they would live when not working. They directed the work conditions which A.B. implemented by going to the hotels with the complainants, running the phones to book customers, and collecting their earnings.

[107] The evidence about the amount of money received was unclear, likely as the two complainants were using drugs and had little knowledge about what they earned beyond their daily quota that was set for them. The bulk of the earnings went to A.B. and the offenders. Based on a daily quota of $1,000, assuming only weekday work, the offenders were earning at least $5,000 per week from each complainant. While Mr. Deidun received money earned by the complainants directly, Ms. Bernard did not. However, she was paid rent by A.B. who directly received earnings from both complainants.

[108] The age and vulnerability of the complainants is also a factor. They were both young, although not minors. They were both in vulnerable positions in their life. Both used drugs; A.O. more than D.H. Both were unemployed and needed a way to earn an income. They were at a precarious time of their life.

[109] The working conditions were not of note as the complainants worked from a variety of hotels. However, both complainants testified about working long hours and needing drugs to keep them awake at times to work those hours. While there was no evidence that they were physically abused by any customers, A.O. described the embarrassment she felt working when she had her period and D.H. testified about being fearful when having to service a customer on an “out-call”, meaning not in the hotel.

[110] These crimes involved a degree of planning as evidenced by the various hotels that were used and the searches made by Ms. Bernard to locate hotels. The offenders determined when and where the complainants worked. It was not a particularly sophisticated operation. The primary tool used was a phone to take photos, place ads, book hotel rooms, and arrange for customers. The size of the operation was not significant, nor was the length of time of the exploitative conduct. There have been cases where the exploitative conduce only lasted days and others where it lasted months. This case falls into a mid-range. There was no evidence of violence, other than the one occasion when Mr. Deidun forcibly removed A.B. from a hotel room in front of A.O. and D. H.

[111] Both complainants were provided drugs by Mr. Deidun when requested. This is an aggravating factor.

[112] Both complainants filed victim impact statements which, as described above, outline the mental and emotional effects of these offences. While the two complainants had various emotional and social difficulties before they met the offenders, these offences have contributed to their ongoing struggles.

[113] Both complainants were able to extricate themselves from the offenders on their own accord. There were no threats made or any acts of physical violence when they left.

[114] I have considered all these factors in reaching what I consider to be a fit an appropriate sentence.

[115] Several decisions filed by counsel refer to the Alberta Court of Appeal decision in Foster, in which the court categorized exploitative conduct to establish sentencing ranges. The categories are as follows:

In the first category, are sentences withing the four to five years 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 form the woman concerned but the relationship cannot be characterized as one of exploitation.

[116] While these categories are somewhat helpful, the sentencing ranges in Foster are not, as sentencing ranges have increased for sex work-related offences.

[117] Overall, I have concluded that Mr. Deidun’s conduct would be placed at the high end of the second category, or the low end of the first category and Ms. Bernard’s would be in the high end of the third category and the low end of the second category.

Aggravating and Mitigating factors

[118] Section 718.2(a) of the Criminal Code mandates a consideration of aggravating or mitigating circumstances related to the offence or the offender.

[119] I have already reviewed many of the aggravating factors in the Tang/Miller analysis above.

[120] Mr. Deidun’s criminal record is an aggravating factor. While it is not lengthy, it involves serious offences including violence for which he was sentenced to penitentiary time. There are, however, no convictions for any similar offences as those now before the court.

[121] Ms. Bernard also has a criminal record, but I do not consider that to be an aggravating factor as the convictions are very dated; 1995 and 1999.

[122] Greed was a clear element in these crimes. I consider it to be an aggravating factor. The offenders also took advantage of the complainants, who were both young and vulnerable women. Quotas were imposed on the complainants. They received very little money that they earned. While Mr. Deidun was working at the time, he stopped working in August due to his health and there were several days when he did not go into work. On those days, he was travelling to Barrie to collect money A.O. earned. Ms. Bernard was not working at the time. She collected rent form A.B. Thus, both offenders benefitted directly and indirectly from the complainants’ sex work. These are aggravating factors.

[123] The degree of direction, and influence over the movements of the complainants was relatively significant, although there were no overt acts of violence that is often present in these types of exploitative arrangements.

[124] Both complainants have suffered emotional and mental harm as reflected in their victim impact statements. This is an aggravating factor. They were both young and at very low points in their lives.

[125] It is an aggravating factor that Mr. Deidun provided the complainants with drugs.

[126] Mr. Deidun has a record of employment and currently works. He has a supportive family. He took courses when he was last incarcerated. Those are mitigating factors.

[127] Ms. Bernard also has a modest work history. She had a difficult childhood and was abused by her father. Those are mitigating factors.

[128] It is also a mitigating factor that Mr. Deidun has been on bail for an extended period and has been compliant with his bail conditions. Ms. Bernard has been compliant, although there was an issue early on when her sister no longer wanted to be a surety and Ms. Bernard delayed turning herself into the authorities. Despite this, I consider Ms. Bernard to have been compliant with her bail conditions which is a mitigating factor.

[129] As part of her right to allocution, Ms. Bernard told the court that she was sorry for putting herself in this situation as it has affected her and Mr. Deidun’s family. She also said she felt that if she was a stricter mother, things would have gone differently. I do not consider this to be an expression of remorse that could be considered a mitigating factor.

Parity

[130] The co-accused, A.B., pled guilty to one count of receipt of a material benefit on the eve of trial and received a conditional discharge after the Crown sought a one-year conditional sentence. Neither Crown or defence counsel filed a copy of the decision or the transcript from her plea of guilt and sentencing for my consideration. The Crown was prepared to do so, but the defence objected as the Crown did not file it with her initial materials.

[131] The position of both defence counsel is that given the parity principle, it is inappropriate for the Crown to seek a sentence of nine years for Mr. Deidun and six years for Ms. Bernard when the co-accused received a conditional discharge.

[132] The Crown relies on R. v. Chambers, 2013 ONCA 680, which held that the principle of parity as enunciated in s. 718.2(b) of the Criminal Code is intended “to preserve fairness by avoiding disparate sentences where similar facts relating to the offence and offender would suggest like sentences”: See also, R v. Rawn, 2012 ONCA 487, 294 O.A.C. 261, at para. 18; and R. v. Mann, 2010 ONCA 342, 261 O.A.C. 379, at para. 16. The court went on to note that while parity is a guiding principle, it is not to be applied in an absolute fashion. It is one of several principles to consider on sentencing. The court disagreed that the appellant’s sentence should be reduced based on the parity principle, noting that sentencing is a highly individualized and fact-specific exercise and as a result, sentences imposed for offences of the same type will not always be identical. Parity does not displace proportionality as a guiding principle on sentencing.

[133] As the transcript from A.B.’s plea and sentencing hearing was not filed. I do not know the facts upon which she was sentenced or her circumstances and factors that were considered on sentencing. I view this as problematic.

[134] The defence both rely on R. v. Pearce, 2021 ONCA 239, and R. v. Hopwood, 2020 ONCA 608. In Pearce two offenders were involved in attacking a victim with a knife. One of the offenders pleaded guilty to aggravated assault and breach of probation for his role in the attack. The court had information about that offenders’ criminal record. After seven days of trial, Mr. Pearce pleaded guilty to aggravated assault and breach of recognizance.

[135] The details of the first offender’s sentence, but not the reasons for it, were before the sentencing judge in an Agreed Statement of Facts. In imposing sentence, the sentencing judge gave no details of the first offender’s sentence, nor did he mention the principle of parity.

[136] The Court of Appeal commented at para. 17, that the principle of parity

preserves fairness in sentencing by promoting the equal treatment of offenders according to law. It applies as between co-accused charged with the same crime, and between the offender and others who have committed similar crimes, where those others are similar to the offender in terms of degree of responsibility.

The court also commented that absolute parity is not required and not appropriate, given the principle of individual sentencing. However, there should not be substantial and marked disparity between similar co-accused offenders who have committed similar crimes.

[137] At para. 18, the court noted that “a sentencing judge is not required to apply the principle of parity between co-accused offenders charged with the same crime if the judge lacks the information necessary to undertake a meaningful comparison.”

[138] The court found that the sentencing judge had the information required to apply the principle of parity even though a copy of the sentencing reasons were not provided to the court. There was an Agreed Statement of Fact filed which set out the sentence imposed on the first offender, information that he was an addict, information about his criminal record, that he was also sentenced for a breach offence and when he pled guilty. The court found that with this information, the sentencing judge ought to have considered the parity principle and found that the sentence imposed was substantially and markedly longer than the sentence imposed on the first offender.

[139] The court commented that the principle of parity between co-accused cannot be relied upon to justify a sentence that is so low as to be unfit. The court granted the appeal and reduced Mr. Pearce’s sentence, but it was still one year longer than the first offender on the basis that he entered a guilty plea shortly after being charged, and not seven days into trial.

[140] In this matter, A.B. was sentenced to one count of receipt of a material benefit. The other charges were withdrawn. On that basis, Pearce is distinguishable. In Pearce, the offenders were sentenced for the same offences. Furthermore, A.B.’s plea prior to trial and her co-operation with the Crown and testimony against these offenders would have been a mitigating factor when she was sentenced.

[141] In Pearce, the court was also able to make findings of fact that both offenders were drug addicts and stabbed the victim approximately 17 times. The offenders each stabbed the victim multiple times with the same knife and took the victim’s backpack, which contained drugs. The two offenders then distributed the drugs among others.

[142] I agree with the Crown’s argument that in Pearce, the sentencing judge knew the exact role the first offender played in the attack and additional information that was filed in the Agreed Statement of Fact. The court also noted that the Agreed Statement of Facts confirmed that there was no discernible difference in the gravity of the crimes committed by the two offenders against the victim and that their respective roles in the attack was almost identical.

[143] In this matter, other than knowing the sentence, I do not know the degree of culpability that A.B. was sentenced on and do not have the extent of information regarding A.B.’s sentence as was available in Pearce. I do not know the facts upon which she was sentenced and those might differ from the findings as set out in these reasons.

[144] If I am incorrect and there is sufficient evidence to apply the parity principle, I am mindful that A.B. was only sentenced on one court whereas the offenders have each been convicted of four counts. Accordingly, the application of this principle is more limited, but I have considered the sentence imposed on A.B. when determining the fit and appropriate sentence for these offenders.

Pre-Sentence Custody

[145] Ms. Bernard has spent time in custody. She was first detained between October 4-11, 2016 and was then released on bail until March 21, 2017. She was then arrested for the offences involving D.H. and was back in custody between March 21 and April 4, 2017. She was released between April 4 and May 30, 2017, when she turned herself in after a surety revocation on May 8, 2017. She was then in custody between May 30 and November 16, 2017 and released following a contested bail hearing. She has been out of custody since that time. In total, she spent 192 days in custody. I accept the joint submission that with the usual 1:1.5 ratio, Ms. Bernard is entitled to a credit of 288 days of pre-sentence custody.

[146] Mr. Deidun was arrested on October 3, 2016 and released on bail on October 7, 2016. He was re-arrested for the offences involving D.H. on February 8, 2017 and released the next day. He was, therefore, in custody for seven days which, using the 1:1.5 ratio, results in a credit of 10 days.

Downes Credit

[147] Both offenders also seek some reduction in sentence because of the restrictive nature of their bail conditions which have been in place for close to six years. They rely on R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.), in which the Court of Appeal found that time spent under stringent bail conditions, especially under house arrest, must be considered as a relevant mitigating circumstance. In that case, the offender was on strict house arrest for 18 months and was granted five months’ credit. As the Court of Appeal noted, the offender could not go to work, medical appointments, or attend worship services.

[148] Ms. Bernard was under strict house arrest from October 11, 2016, to March 23, 2017, and from April 4 to May 8, 2017, for a total of 198 days. I accept the joint submission from counsel that a credit of 40 days credit for the onerous and strict bail conditions should be applied. While there is no magic formula to apply for this type of credit, in my view, that is a reasonable and fair determination of the appropriate credit.

[149] Since November 2017, following a contested bail hearing, Ms. Bernard has not been under strict house arrest. For the past 4.5 years, she has a curfew from 10:00 p.m. to 6:00 a.m. and must report weekly to the John Howard Society. The Crown’s position is that this does not rise to the level of restrictive bail conditions contemplated in Downes so there would be no further credit beyond that date.

[150] Mr. Deidun’s bail conditions have been more restrictive. He is to remain in his mother’s home except for medical appointments or emergencies, to travel for court appearances or to meet with his lawyer, or unless in the presence of or with the written permission of his surety. Those conditions have been in place since October 2016.

[151] The Crown argues that Mr. Deidun’s bail has not been as restrictive as the strict house arrest conditions initially imposed on Ms. Bernard and that he should be given a 90-day credit for the 5.5 years that he has been living under bail conditions.

[152] If an offender asks that pre-trial restrictive bail terms be considered, the offender should provide the court with information as to the impact of the conditions. The onus is on the offender to establish those facts on a balance of probabilities, and that the restrictions prejudiced or imposed a hardship on them: R v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81 (C.A.), at para. 27.

[153] Mr. Deidun has been able to work full-time while on bail. While his counsel argued about the lack of flexibility and restrictions imposed by his bail conditions, I did not hear evidence of any prejudice or hardship. I also did not hear any evidence from Ms. Bernard in that regard.

[154] In my view, Mr. Deidun’s bail conditions have only been moderately stringent, although they have been in place for 5.5 years, which is a lengthy period. I can infer that these moderate restrictions would have had some impact on his daily activities. Ms. Bernard’s bail restrictions since November 2017 have also been moderately restrictive but not to the same extent of Mr. Deidun. Although she has a curfew, there is no restriction on why she can leave the home or that she must be in the presence of a surety or have their permission.

[155] I am prepared to give both offenders credit in the absence of evidence regarding hardships. Accordingly, Mr. Deidun will be credited with six months of Downes’ credit and Ms. Bernard with three months, which includes the initial 40 days agreed to by counsel.

Health of the Offenders

[156] Both offenders filed medical evidence regarding their health conditions. Mr. Deidun suffers from MS and sleep apnea. Ms. Bernard suffers from asthma and mental health issues. Both are treated by medical specialists and use prescription medication. They both argue that their health will be adversely impacted if sentenced to a period of incarceration. They also argue that I should consider the impact of COVID-19 on their health as they are more susceptible to adverse health impacts should either become infected while incarcerated.

[157] When I heard initial sentencing submissions in March and April 2021, the Deputy Superintendent of Maplehurst and Vanier Correctional Centre were cross-examined about the availability of COVID-19 vaccines for inmates and if they could accommodate the offenders’ medical needs.

[158] These witnesses were questioned on March 25, 2021. At the time, the vaccine program in Canada was still in its relative infancy and demand exceeded the supply. The situation has since changed considerably. Now, anyone who requires a vaccine has access to it. While I heard no evidence regarding their vaccine status, both offenders have had ample opportunity during this past year to ensure they are fully vaccinated to protect themselves. If they have chosen not to be vaccinated, that is their own decision, but it has no bearing on this sentencing.

[159] The Crown agreed to a one-year reduction for the collateral consequences of COVID-19 on the basis that both offenders have medical conditions that place them at a higher risk. This submission was also made in March 2021 when the vaccine program was just underway in Canada. The situation has changed since then. For example, as noted above, vaccines are now available for everyone. Furthermore, the state of emergency has been lifted and most restrictions have been lifted. I have nonetheless considered the collateral consequence of COVID -19 in reaching my sentencing decision.

[160] Mr. Deidun filed a letter from Dr. Yufe, a neurologist, dated March 12, 2021. Dr. Yufe treats Mr. Deidun for his MS. According to that letter, Dr. Yufe is treating Mr. Deidun with ocrelizumab, which is a medication that can only be prescribed at MS clinics in Ontario. According to Dr. Yufe, this medication suppresses the immune response which would make the patient more prone to infection “that could be an issue in the incarceration of patients during the COVID crisis”.

[161] Mr. Deidun also filed a medical note that as of February 2021, he was waiting for a CPAP machine.

[162] While I accept that both offenders have health conditions that require ongoing treatment, many who are incarcerated are in a similar position. For example, the Deputy Superintendent of Maplehurst testified that there is an infirmary that treats persons with significant medical issues, including one who is paraplegic. If there is a medical issue that cannot be dealt with, the inmate will be taken to the hospital for treatment. As such, I am satisfied that the offenders’ medical needs can be addressed while incarcerated.

Conditional Sentence

[163] Mr. Deidun and Ms. Bernard argue for a conditional sentence of two years less a day on the basis that they are non-dangerous offenders and at a low risk of re-offending. Counsel point to their compliance with their bail terms and their dated criminal record with no related offences as evidence that they are at low risk to re-offend.

[164] In my view, a conditional sentence is not appropriate. It is not fitting for the gravity of the offence, the harm to the complainants, and the responsibility of the offenders. It does not achieve denunciation or deterrence, which are two key factors in sentencing, for these types of offences.

Sentence

[165] When determining sentence, I must grapple with several competing factors. There are both aggravating and mitigating features. I have considered the Tang/Miller factors, the principle of parity, the health condition of the offenders and the collateral consequences of COVID-19 when reaching what I consider to be an appropriate and fit sentence.

[166] I do not agree with the defence position that a conditional sentence of two years less a day should be imposed. Similarly, the Crown’s position of nine years for Mr. Deidun reduced to eight years and six years for Ms. Bernard reduced to five years, is excessive.

[167] Mr. Deidun is, therefore, sentenced to three years, or 36 months for harbouring and exercising, control, direction and influence over the movements of the complaints, less a Downes credit of six months and pre-trial custody credit of 10 days, with a resulting sentence of 30 months less 10 days. He is also sentenced to 6 months for receiving a financial or other material benefit to be served concurrently.

[168] With respect to each count, the sentence is as follows:

• Count One: 20 months less 10 days
• Count Two: 3 months concurrent to count one
• Court Four: 10 months consecutive to count one
• Count five: 3 months concurrent to count four

[169] Ms. Bernard is sentenced to two years, or 24 months for harbouring and exercising control, direction, and influence over the movements of the complaints, less a Downes credit of three months and pre-trial custody credit of 288 days with a resulting sentence of 21 months less 288 days or net 11 months and 15 days. She is also sentenced to 2 months for receiving a financial or other material benefit to be served concurrently.

[170] With respect to each count, the sentence is as follows:

• Count One: 7 months and 15 days
• Count Two: 1 month concurrent to count one
• Court Four: 4 months consecutive to count one
• Count five: 1 month concurrent to court four

[171] These sentences recognize the exploitative nature of the offenders’ conduct and the individual roles they played in harbouring and exercising control, direction, and influence over the movements of the complainants, the length of time of the exploitative conduct, the lack of physical violence, their personal circumstances and the impact of the offences on the A.O and D. H.

[172] While I have considered A.B.’s sentence and the principle of parity, it does not displace proportionality as a guiding principle on sentencing. In my view, a conditional sentence would not be a proportionate sentence given the gravity of the offences, impact on the complainants and the culpability of the offenders.

[173] The following ancillary orders will be included in the sentence of each offender:

• An order authorizing the taking of a DNA sample form each pursuant to s. 487.05(1)(a) of the Criminal Code
• A firearms prohibition order for life pursuant to s. 109 of the Criminal Code
• An order prohibiting the offenders from communicating directly or indirectly with A.B, A.O., and D.H. while in custody pursuant to s. 743.21 of the Criminal Code.

L. Shaw J.

Released: May 18, 2022