ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-21-10000390-0000
DATE: 20220830
BETWEEN:
HER MAJESTY THE QUEEN
– and –
S. H-O.
Defendant
M. Gharabaway, for the Crown
F. McNestry, for the Defendant
HEARD: At Toronto, August 5, 2022
Michael G. Quigley J.
REASONS FOR SENTENCE
Overview
[1] In 2019, S. H-O. (hereafter “H-O”) was charged with over 30 human trafficking related charges in relation to three complainants, H.S., E.L. and a third complainant who was a minor at the time.
[2] On January 26, 2022, H-O pleaded guilty to six of those offences, perpetrated against H.S. and E.L. In the case of H.S., these were charges of deriving a material benefit from human trafficking (Count 3 – s. 279.02(1)), human trafficking (Count 7 – s. 279.01(1)), and assault causing bodily harm (Count 15 – 267(b)). Relative to E.L., the charges were human trafficking (Count 24 – s. 279.01(1)), advertising sexual services (Count 26 – s. 286.4), and assault (Count 28 – s. 266).
[3] Counts 31-33 on the indictment relative to the unnamed minor complainant will proceed to a judge-alone trial in December 2022. The remaining 24 counts were marked withdrawn on January 26, 2022.
[4] A sentencing hearing was originally scheduled for March 25, 2022. The hearing was adjourned to June 17, 2022, at defence counsel’s request and because I was unavailable due to medical circumstances. That caused further adjournments to July 7, 2022, and then to August 5, 2022.
[5] Crown counsel seeks a global sentence of ten years. Defence counsel allows that a sentence of seven years would otherwise be appropriate, but she advocates for a sentence of between five and six years, based upon the extremely bad custodial conditions that have over-shadowed the entirety of H-O’s pre-trial custody at the Toronto South (“TSDC”) and more recently, the Toronto East Detention Centres (“TEDC”).
[6] Counsel do agree upon the imposition of the following ancillary orders: a DNA order; a s. 109 weapons prohibition; and a non-communication order with H.S. and E.L., pursuant to s. 743.21 of the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”). They agree that a restitution order should be made in favour of H.S.
[7] H-O has been in custody since February 19, 2019. As of this date, August 30, 2022, this amounts to pre-trial and sentencing custody of 1289 days. Based on R. v. Summers, 2014 SCC 26, 371 D.L.R. (4th) 581, H-O will be entitled to credit at the rate of 1.5:1, for a total pre-trial custody credit of 1934 days, that is, 5 years, 3 months and 20 days, or 64 months and 14 days.
[8] Against this background, and taking account of the very egregious circumstances of these offences, the question on this sentencing hearing is what is the fit sentence for this youthful first time offender?
[9] For the reasons set out below, I find that a global sentence of eight and a half years would have been appropriate for this offender in these circumstances. However, in consideration of the disgraceful occupancy conditions that are permitted to prevail in the TSDC and TEDC facilities, which must be taken into consideration in crafting a proper sentence, I have found that the appropriate sentence should be reduced to a global one of seven years and three months before applying the pre-sentence custody credit.
Circumstances of the Offences
[10] The facts and circumstances in this case are set out in the Agreed Statement of Fact, marked as Exhibit 1, as follows:
(i) H.S.
[11] In February 2018, H.S. met H-O. She was 21 years old at the time and attending Ryerson University.
[12] On March 17, 2018, H-O sold H.S. a false dream. He proposed that she work for him in the sex trade as his “working thing”. He promised her a better life: that she would keep the money she earned in the sex trade and that he would not hurt her. H.S. became entirely dependent on H-O, because she felt she did not have anyone else. However, not only did H-O become H.S.’s pimp, but they also began a domestic relationship. Both relationships lasted approximately one year.
[13] H-O posted advertisements on LeoList, a platform used to advertise sexual services. He took photographs of H.S. in her underwear and directed her into various sexual poses.H-O required H.S. to work six days per week and make $1,000 each night exchanging sexual services for money. She was allowed to sleep only after she made $1000. If she wanted a day off, H.S. needed to ask H-O for permission. Even when H.S. had a day off, however, he would require her to work if business was good. He exercised control over her life.
[14] H.S. earned approximately $6,000 per week working for H-O in the sex trade, but H-O retained those monies entirely for himself. H-O also consistently provided H.S. with Xanax, cocaine and other illicit substances. H-O knew that H.S. struggled with drug addiction, and so he made use of her addiction, as yet another way of controlling her, by supplying her with drugs.
[15] H-O’s nickname is “Goon.” H.S. has tattoos on her hand that say, “Goons Girl”. She also has a “G” on her cheek. H-O told her that she should prove her loyalty by getting a “G” on her cheek or his name on her heart and she complied.
[16] On September 1, 2018, H.S. went to H-O’s residence to collect some money he had been holding for her. After engaging in a brief conversation, however, H-O became angry, grabbed her by the hair, pulled her into the apartment, and started punching her in the head and all over her body. As a result of this significant assault, H.S. sustained bruising, scratches to her face and a large bruise on her right arm. She was dizzy and disoriented and her balance was off for several days. She took pictures of her injuries after this incident and later provided them to the police.
[17] During the time that she was being trafficked by H-O, another co-accused, E.U., took a video of H-O and H.S. H.S. was plainly unconscious and her breasts were exposed. H-O was holding her by the neck and assaulting her on video, slapping her on the face.
[18] On February 8, 2019, just after midnight, H-O was at her apartment when another argument ensued about members of H.S.’s family who were to visit her in the morning. Given their history, H.S. was concerned that he would hurt her again. She began recording their interaction on her phone. H-O removed a flip knife from his pocket, opened it and showed it to H.S., which caused her to start screaming. H-O wanted her to stop screaming because he did not want the police to be called.
[19] However, just then, H-O realized H.S. was recording their interaction. He violently grabbed her by the arms and shoulder and shoved her onto the bed to try to grab her cell phone and take it away from her. He then grabbed her by the neck with one hand and covered her mouth with the other to muffle the sounds of her screams. H-O then called a taxi and left H.S in her apartment, with bruising to her neck and a cut lip.
[20] Following this event, H.S. attended 14 Division and provided a KGB cautioned, videotaped statement to the police about what happened on September 1, 2018, and February 8, 2019. She told the police that H-O beat her weekly to the point that she lost count. He also used his knife to scare her quite often. He liked to see her afraid and vulnerable.
[21] Later that day, H.S. also attended police headquarters and provided a KGB- cautioned, videotaped statement to the Human Trafficking Enforcement Team about being trafficked and assaulted by H-O. She told the police that after she decided to leave H-O, he threatened to pour alcohol on her and light her on fire.
[22] H.S. told the police that on one occasion, with friends watching, he forced her to take off her clothes and go on all fours and put her nose in the corner like an animal. That was not enough for H-O, however, as he then proceeded to stomp on her head in front of their mutual friends.
[23] Finally, on February 9, 2019, H-O was placed under arrest in relation to the domestic allegations relating to H.S. He was initially released, but then a warrant in the first instance was sought for his arrest for the human trafficking offences. He was arrested at 52 Division on February 19, 2019, and these charges were laid.
(ii) E.L.
[24] E.L. had known H-O through Instagram for a few years. She knew him as “Goon”. In June 2018, H-O finally convinced her to meet in person. She was 18 when they met.
[25] E.L. came to H-O’s rooming house at Bloor and Bathurst and met with him there. She also met H.S. and another male who she knew only as “Vegan”. This was at the same time that H.S. was working for H-O in the sex trade.
[26] H-O considered E.L. to be his girlfriend although they were not in a relationship.
[27] H-O began to advertise E.L.’s sexual services. He wrote the advertisement. There were no sexual services that would not be offered. H-O negotiated with all of her clients.
[28] E.L said that she and H.S. began doing so-called “out calls” together, mostly at hotels, but that it was H-O who lined up the clients and rented hotel space. It was just the four of them (presumably including H.S. and “Vegan” or E.U.) carrying on in this arrangement for some two to three months.
[29] E.L. did not want to work in the sex trade, and she told H-O that she wanted to stop. However, this just caused him to become angry with her. She did not retain any of the money earned from her work in the sex trade. Those monies all went directly and entirely to H-O.
[30] Like with H.S., H-O also took advantage of E.L.’s drug dependencies. E.L. consumed Xanax and other drugs supplied by H-O. Like with H.S., H-O. knew that E.L. was struggling with drug addiction, but he used this as a tool to control her by supplying her with drugs.
[31] H-O took E.L., just as he had H.S., to get his name tattooed on her body. He took a picture of both girls with their new tattoos and himself.
[32] At times H-O also got angry and violent with E.L., particularly when she did not want to have sex with him. She told police that he choked her and banged her head against a metal padlock. When she tried to escape, he pushed her down the stairs.
[33] E.L. also told the police that H-O. always had knives on his person or on display.
[34] It was after E.L. saw a Toronto police press release relating to H-O., asking for other victims to come forward, that she reached out to police to provide a statement.
Circumstances of the Offender
[35] H-O is a 24-year-old, youthful, first-time offender. He is a male of Chinese descent, born in Jamaica. He is the youngest of two children. Despite describing his background in his Pre-Sentence Report (“PSR”) as normal and generally positive, he claims in his affidavit filed on this hearing that he has faced hardships and trauma throughout his life.
[36] His parents divorced when he was 17 years old. He has had difficulty coming to terms not only with their separation, but also with his father’s abuse of his mother and their apparently toxic relationship. H-O has had significant difficulty speaking about his parent’s relationship and abuse and coming to terms with the likely impact their relationship has had on him, his behaviour, and his relationships.
[37] Positively, H-O is prepared to seek assistance from professional counsellors, psychologists, or physicians, both in and out of custody, to address his family trauma and its ripple effects, including the negative impacts on his behaviour and relationships with women.
[38] H-O has also struggled with significant mental health issues, leading him to be sent to treatment in both Toronto and Jamaica. After dropping out of high school, H-O was sent to a youth mental health treatment centre, called the Hincks-Dellcrest Centre, and a group home in Toronto. He was also hospitalized for several weeks, on multiple occasions, in Jamaica. In the PSR, H-O describes his experience in hospital, being placed on medication, experiencing a manic episode following his release, being re-admitted to hospital, and being held for four more weeks. His mother describes him as “acting bizarre and ‘very psychotic’” around the time he was admitted to hospital. The PSR also records her report that he was diagnosed with Oppositional Defiant Disorder, and that she had him admitted to hospital because “he was not in a stable condition”.
[39] Following his hospitalization in Jamaica, H-O returned to Canada and was transient—bouncing between friends’ houses and a rooming house. At the time of his arrest, he was residing with one of the complainants, H.S. H-O swears in his affidavit that, since being in custody, he has suffered from anxiety and depression and experienced racism and taunting based on his appearance.
[40] Despite these significant challenges, he is currently working through the Amadeusz Organization. He is participating in their education program at the TSDC and TEDC to complete his high school credits and programming to address anger management and the development of life skills. Upon his release, H-O’s goal is to open a tattoo parlour and run his own business. He says he is committed to completing his education to achieve his goal and become a pro-social member of society. So far, he has progressed with the completion of his high school education.
[41] Before concluding this consideration of H-O’s circumstances, however, it is important to note several factors from the PSR that do not provide the same level of positive indication moving forward. First, it was important to the author of the PSR, as it is to me, that the focus of H-O’s remorse seemed to be more concerned with the impacts of these events on him, with less seeming insight into or concern with the horrific consequences of these events on H.S. and E.L.
[42] During the interview, which took place at the TSDC, evidently H-O was rather reluctant to discuss anything in detail. Although he was “semi co-operative”, he provided only sporadic information, and only one collateral source.
[43] While the PSR author confirms that H-O accepts responsibility for his actions, he was unable to determine if H-O was sincere. H-O acknowledged that he felt bad for what he “did to the victims, and how it affected my family and myself.” He said that if he could take back his conduct, he would, because he is “greatly sorry.” It is telling and of concern going forward that H-O did not mention how the offence may have possibly affected the victims.
[44] H-O said he committed the offences because “it was during a time of my life where I didn't have anything going on”. He had nothing else to do at the time and pimping and trafficking was going on around him in the city. He said that he has a lot of regret and shame for what he has done, acknowledged going through the Court process has not been a happy time, and recognized that it was his actions that put him where he now finds himself. He concluded that “I have to accept the consequences of my actions for I know what I did was wrong.” Again, however, I note his self-focus is indicative of lesser insight into the harm he caused to H.S. and E.L.
[45] Against this background, the assessment in the PSR takes on more meaning:
The subject's lifestyle and values support his criminal behaviour. He has admitted to making certain lifestyle choices which found him in conflict with the law such as problem solving/self-management, pro-criminal attitude and possible mental health issues. He is unlikely to make any changes unless he addresses these issues. He lacks structured activities and routine, which would promote/encourage pro-social thinking and values. If the subject fails to address any of these issues and concerns, his sporadic behaviour will likely lead to further criminal occurrences [emphasis added].
[46] Despite the less positive assessment of the PSR author, the PSR does provide recommendations toward rehabilitation, and I am persuaded that there is progress being made. I am also certain that he will require a period of incarceration that permits these issues to be addressed, by appropriate professionals, if he is to succeed in learning to adopt the structured activities and routine, which he will need to promote positive movement towards pro-social thinking and values. Nevertheless, as expressed in his letter to the court, I do also accept that H-O is committed to following all recommendations and seeking treatment both in and out of custody to ensure that he goes on to lead a productive and pro-social life, and that he is not ever before the court again.
Victim Impact Statements
[47] There were disturbing and moving Victim Impact Statements (“VIS’s”) provided in this case by both H.S. and E.L.
[48] H.S. explained in her VIS that she is depressed and anxious. She dropped out of school when she started to work for H-O and has been unable to return. The relationship between the two of them lasted for a full year. She thought he was both her pimp and her boyfriend, and that caused her to put some trust in him, but he simply abused his position of authority and control and demanded that she continue to work to benefit him financially.
[49] H.S. told the court that she suffers from post-traumatic stress disorder. She engaged in a 97-day program to try to deal with her problems with the trauma that she suffered, but it provided only limited relief. She no longer trusts people, and in particular men. She has been suicidal and suffers from an eating disorder. H.S described her condition graphically when she said, “I have been suicidal and harmed myself physically because I feel worthless, and I hate myself and my body.”
[50] Importantly, the photographs of H.S. that were posted on the Internet by H-O continue to victimize her, and will for her entire life, since nothing ever disappears from the Internet. Moreover, she must live every day with the reminder of the abuse perpetrated against her by H-O because of the tattoos on her fingers, which spell out his four-letter nickname, one on each finger. They are obviously visible to her as a permanent reminder of him any time her hands are in front of her.
[51] H.S. is paranoid and fearful. She has had to rely on the Ontario Disability Support Program to sustain her financially since 2019 because she is mentally incapable of maintaining the focus and attention that work requires. She now has a substantially worse drug abuse problem than she did at the time she was with H-O, but that is directly attributable to her time with him and the trauma that she continues to experience from his abusive conduct.
[52] Turning to E.L., she believes that she is lucky to still be alive, but that mere survival did not cause her horrific time with H-O to disappear. She was unable for a long time to deal with any third-party relationships. She undertook mental health programs to try to restore herself, but like H.S., she also experienced suicidal ideation during the period of her recovery from the damage he caused.
[53] E.L. told the court that she has now succeeded. She is a strong woman today, but in the process of repairing her body and soul and spirit, of becoming the strong woman that she is today, she has spent years trying to fix the damage that H-O caused to her. She is now 22 years old and endeavouring to raise a family. She concluded her statement by emphasizing that no one should ever have to experience the mental and physical control, anguish, and pain that H-O caused to her and H.S.
[54] In concluding this portion of my reasons, I wish to emphasize that each of these victims experienced significant and intense pain from the reprehensible conduct of this offender, pain that I am certain will leave both visible and invisible scars that will always be present.
Legal Parameters
(i) Principles and Objectives of Sentencing in this Case
[55] Section 718 of the Code states the fundamental purposes of sentencing and lists its underlying objectives. The fundamental purpose of any sentence is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by the imposition of just and appropriate sanctions.
[56] The primary sentencing objectives to be addressed through the sentence imposed include denunciation, general deterrence, specific deterrence, and the separation of the offender from society.
[57] Pimps like H-O are parasites. They prey on vulnerable members of our society for their own personal pleasure and financial gain. In the context of the sex trade, human traffickers are the worst type of pimps, because they threaten or use violence to force their vulnerable victims to comply with their demands. H-O certainly demonstrated his character, not only by the control he exercised, but also the brutal violence he perpetrated against both complainants.
[58] As the voice of our community which seeks to protect vulnerable sex trade workers from being subjected to this heightened form of exploitation, I am called upon to denounce this conduct in the strongest of terms. Independent of any mandatory minimum sentence (“MMS”) that Parliament has seen fit to enact, there remains a pressing need for the Court to deter such conduct through the imposition of a sentence that sends a clear and focused warning. It is simply that those who choose to exploit the vulnerable by subjecting them to degrading and dehumanizing demands and behaviour will pay dearly. That price will take the form of a very significant loss of the offender’s liberties through the imposition of increasingly severe carceral sentences in the mid to upper single-digit range, increasing to the double-digit range for particularly egregious and horrific cases.
[59] The offender in this case engaged in a prolonged campaign of exploitation and manipulation of the victims, H.S. and E.L., for his personal gain. Not only is it obvious that he must be specifically deterred from engaging in similar conduct in the future, but as well, there is an equally strong need to deter any like-minded individuals from engaging in such conduct in the future.
[60] The actions of H-O reveal his capacity for significant violence and display his shocking and callous disregard for the physical safety and psychological well-being of other human beings. The physical violence visited upon H.S. and E.L. calls out for him to be separated from society for as long as is reasonable in the circumstances, in order to protect other vulnerable members of our community.
[61] However, given his lack of a criminal record, the principle of rehabilitation must also be considered. The Crown acknowledges that H-O is a youthful offender. His own expressed remorse and stated intention of future direction he wishes to pursue in the work force, do persuade me that he may be a decent candidate for some rehabilitation. It appears from parts of the PSR, and his own letter of responsibility and remorse read to me on this sentencing hearing, that H-O has and continues to acquire deepening insight into his callous behaviour. I do accept his expression of remorse as sincere.
[62] In the ordinary course, when the Court is sentencing a first-time offender to his or her first penitentiary sentence, the Court should proceed on the basis that the shortest possible sentence will achieve the relevant sentencing objectives: R. v. Q.B., (2003) 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (Ont. C.A.) at para. 36; R. v. Priest, (1996) 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538 (Ont. C.A.); R. v. Borde, (2003) 63 O.R. (3d) 417 (Ont. C.A.).
[63] However, any sentence imposed must still be consistent with the relevant sentencing principles and it must be proportionate to the gravity of the offence committed: R. v. Tan, 2008 ONCA 574 at paras. 30-33; R. v. Marshall, 2015 ONCA 692 at paras. 45-53. Moreover, while it is recognized that the increasingly deplorable conditions in provincial detention facilities will entitle a sentencing judge to reduce the extent of the sentence that he or she might otherwise consider to be fit, regardless of how bad those conditions may be, they will not provide licence to the sentencing judge to impose a sentence below the applicable range for similarly situated offenders convicted of the same or similar crimes.
[64] Here, the offender has committed one of the most reprehensible crimes known under our law. For approximately one year, he used manipulation, threats, and physical violence to force two other human beings to engage in repeated acts of sexual conduct for his own commercial gain, while caring not a whit about their well-being. Thus, while I have expressed my belief that H-O is a decent candidate for some rehabilitation, his rehabilitative prospects cannot be allowed to play a primary role in considering and fashioning an appropriate sentence.
[65] Further sentencing rules are contained in ss. 718.1 and 718.2 of the Code. The former establishes the fundamental principle that a sentence must be proportionate to the gravity of the offence and the extent to which the offender is responsible for it. The latter stipulates that a sentence must be increased or decreased after taking account of any aggravating or mitigating circumstances relating to the offence or the offender. It also requires parity, that is, that a sentence imposed on the offender should be similar to the sentences that have been imposed on similar offenders in similar circumstances.
(ii) Range
[66] It is evident that by enacting a MMS for the offence of human trafficking in ss. 279.011(1)(b), Parliament intended to create a minimum threshold sentence that can reasonably be viewed as a proportionate response to the evil that is human trafficking, an activity that is effectively a form of modern day slavery, through which an individual is forced to perform a labour or service out of fear for the safety of themselves or another.
[67] K. Campbell J. of this court sets out some helpful guidance for sentencing an offender for human trafficking in R. v. Lopez, 2018 ONSC 4749, at para. 53, where he encapsulates the principles described in R. v. Tang, (1997), 1997 ABCA 174, 200 A.R. 70; R. v. B. (K.) (2004), 2004 CanLII 36124 (ON CA), 184 C.C.C. (3d) 290; and R. v. Mfizi, [2008] O.J. No. 2430, and enumerates those points of measurement. He states in part as follows:
In terms of the range of sentences that are appropriate for pimping offences, Canadian courts have generally accepted that, in cases like the present one, where the accused has coerced a woman into becoming or remaining a prostitute and exercised a significant degree of control over her activities, sentences of four or five years are typically imposed. General deterrence, denunciation and specific deterrence are said to be the paramount sentencing considerations. Even longer sentences have been imposed and upheld in more aggravating circumstances. The imposition of any specific sentence depends, of course, upon the individual circumstances of each case, and consideration of a variety of factors … Lesser terms of imprisonment may, however, be appropriate in cases where coercion and/or exploitation are lacking [citations omitted].
[68] Crown counsel and counsel for H-O differ materially in their sentencing positions, but they essentially rely on the same cases relative to the range of sentence, emphasizing different aspects of those cases to distinguish their positions. Having reviewed them all and noted the summaries in the comparative chart provided by Crown counsel in her sentencing materials, I conclude that the sentences proposed are within the range of sentences that are capable of being imposed in circumstances such as this. That, on its own, however, provides little guidance. Brief summaries of those cases will suffice to show points of similarity and distinction:
(i) In R. v. Leduc, 2019 ONSC 6794, a sentence of 12 years, less 4.5 years’ credit, was imposed for human trafficking and criminal organization offences; however, only five of those years were for human trafficking plus two years concurrent for assault causing bodily harm. The offender did not plead, was sentenced after trial, and was youthful, but he had an extensive record, including a history of crimes of violence.
(ii) In R. v. Jordan, (unreported, Brampton SCJ, 2018), affirmed 2019 ONCA 607, a 9-year sentence was imposed (less credit for 1.5 years’ pre-sentence custody (“PSC”)), for offences of human trafficking, procuring, and intimidation of a justice system participant. The sentence for human trafficking alone was 6 years. Unlike here, the offender was sentenced after trial, had a criminal record, was 37 years old, so not a youthful first offender, and the exploitation lasted five years. That exploitation included pressuring the victim to work while she was pregnant.
(iii) In R. v. M.C.D., 2017 ONSC 3174 (upheld on appeal: R. v. Deiaco, 2019 ONCA 12), a global sentence of 8 years and ancillary orders was imposed. This sentence included 5 years for trafficking in persons, 3 years for material benefit, 7 years for kidnapping, 3 years for assault causing bodily harm, and 1 year concurrent for having used an imitation firearm.
(iv) In R. v. Crosdale, 2019 ONCJ 3, the offender was sentenced to 6 years, less 162 days credit for PSC, for human trafficking under 18, procuring under 18, and exercising control and advertising. Again, though, this was after trial, and at 33 years of age the offender was no longer youthful.
(v) Finally, in R. v. Senoubari Abedini, [2019] O.J. No. 6947, affirmed 2020 ONCA 520, the sentence was 8.5 years (less 11 months’ R. v. Downes, 2006 CanLII 3957 (ON CA), 205 C.C.C. (3d) 488, and PSC credit), but it was a sentence imposed after trial, for human trafficking, human trafficking under 18, deriving a material benefit from sexual services, 2 counts of procuring, and living off the avails of prostitution for three complainants, two of whom were 16 years’ old. The sentence for human trafficking and material benefit was 8.5 years, concurrent.
[69] In 2014, a sentence of six years was imposed in R. v. Byron, 2014 ONSC 990, 39 C.L.R. (4th) 62. The victim in Byron was 17 years old, and quite vulnerable, as she was a ward of the Children’s Aid Society. Mr. Byron forced her to work as an escort over many months, moved her to multiple cities to find clients, threatened and assaulted her, and destroyed her health card. Nude photographs of the young victim were posted online. However, Mr. Byron was not a youthful first-time offender and was on a judicial interim release at the time he committed the offence of human trafficking. It is noteworthy that the violence inflicted by A.P. on N.W. (see below), and in this case by H-O against at least H.S., if not both she and E.L., greatly exceeded that in Byron.
[70] The sentence in R. v. A.S., 2017 ONSC 802, appears to continue to represent the upper-end of the range of sentence imposed for the offence of human trafficking in Ontario. However, that was an entirely different case from this one. It involved trafficking a young and vulnerable indigenous woman for four years, four times longer than the period of oppression in this case. During that time, A.S. subjected the victim to horrific abuse, including cutting her Achilles tendon, resulting in permanent injury. He then threw her into a dumpster, fled the jurisdiction, and was only apprehended 6 months later, on the other side of the country. He had an “atrocious” criminal record.
[71] Were it not for the significant aggravated assault component of the offender’s behaviour there, I would have imposed a sentence of eight years’ imprisonment for the human trafficking, and related counts, but I concluded that when the aggravated assault was considered under the umbrella of the offender’s exploitation of the victim, an appropriate sentence was one of twelve years’ imprisonment for the human trafficking offences with a further year to be served in respect of a count of choking. That case involved human trafficking circumstances that were worse than this and it lasted considerably longer.
[72] In the very recent decision in R. v. M.E.D., 2022 ONSC 1899, Kelly J. observed that based on the accused’s conviction for the offence of human trafficking, M.E.D. faced the mandatory minimum sentence of four years' imprisonment as set out in s. 279.01(1)(b) of the Code. As well, however, she noted that the caselaw has now surpassed that MMS and supports a range of four or five to eight plus years depending on the circumstances.
[73] Boswell J. expressed similar sentiments in R. v. A.E., 2018 ONSC 471. He commented on the changing nature of the range of sentence for human trafficking cases, finding that the range has elevated to be between four and eight years. At paragraph 65, he observes that it remains extremely difficult to define a “usual range” for human trafficking, largely due to the panoply of varied circumstances in which the offence may be committed. The yardsticks are far from settled. Since the enactment of the MMS in 2014, plainly the floor has been elevated. The usual range appears now to be roughly four to eight or more years, again depending on the aggravating and mitigating circumstances present.
[74] I would also refer to R. v. A.P., 2019 ONSC 4683 (unreported). In that case I found the MMS in s. 279.011(1)(b) of the Code to be unconstitutional based on a reasonable hypothetical analysis, but the scenario there involved a minor, so it was a different situation. To the best of my knowledge, the four-year MMS under s. 279.01(1)(b) of the Code that applies here retains its constitutional status, and it was not challenged before me. In any event, I have concluded that a substantially greater sentence than four years is required in this case, so the constitutional status of the MMS is of no moment.
[75] In R. v. A.P., the victim, N.W., was a 16-year-old minor who had run away from her mother’s home at the time of the offences. When she met A.P. in the summer of 2015, she was already providing occasional escort services. A.P. was 27 years old when they met, still youthful, like H-O. A.P. told N.W. that he would take care of her, just as in this case. She came to live with him and S., his female roommate. A.P. encouraged their relationship. He knew she was only 16. He intended to take advantage of her, just as H-O did to H.S. and E.L.
[76] As in this case, A.P. took photographs of N.W. for the purpose of placing internet advertisements for sexual services. As in this case, for the better part of a year, A.P. made N.W. give him all her earnings. He deceived N.W. and made false promises to her. To exercise control over her actions, he told her that he would later return her money to enable her to get her own apartment.
[77] A.P. started to become physically and verbally abusive towards N.W. as the months went by, just as H-O did towards H.S. and E.L. A.P. told N.W. that he would kill her if she ever left him. For the last two months of their relationship, N.W. was working out of a brothel, but on May 28, 2016, a confrontation arose between them across the street at a local restaurant. It spilled out onto the street. A.P. punched and slapped N.W., dragged her to a back laneway, and continued to punch her face. She tried to run, but he tripped her. She fell to the ground and cut open her right knee, resulting in a significant gash. S. also inflicted blows on N.W. N.W. was taken to the Mount Sinai Hospital by ambulance. She required 15 stitches to close the cut on her right knee. She also sustained a bloody and swollen face and lips, cut to the toe area, bruises on her legs and shoulder, and scratches to her face and neck. Previously, she had also sustained bruises when A.P. inflicted a series of hits on her several weeks earlier and at other times during their relationship. Her injuries were perhaps worse, but not dissimilar to those inflicted by H-O on his two victims, H.S. and E.L.
[78] Of course, no two offenders are the same, and thus no two sentences will necessarily be the same. There is no uniform sentence applicable to any crime: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 92. The circumstances of any case, including this one, can be readily distinguished from any other case. So, I accept that is why Crown counsel agrees that a “range” of four or five to eight years is correct, but advocates for a 10-year sentence based upon her submissions relative to the violence and depravity of these particular offences.
(iii) Mitigating and Aggravating Factors
[79] In considering the degree of aggravation present in this human trafficking case, I have reviewed the factors derived from Tang as enumerated in Lopez, above, to determine the extent to which they are present here. Not all, but most of these factors played a role in this case.
[80] A Tang-Lopez focused review of the facts in this case causes me to find that the following factors are aggravating in relation to H-O:
(i) H-O exerted a great deal of control over H.S.’s escorting. H-O required H.S. to work six days per week and make $1000 each night. When she made $1000, she could go to sleep. Even when H.S. had a day off, she would be required to work if business was good. If H.S. wanted a day off, she needed to ask H-O for permission. H-O told her to prove her loyalty by getting a “G” tattooed on her cheek, and other tattoos, which she did. H-O also wrote E.L.’s advertisements and determined that all sexual services would be offered. He negotiated with her clients and retained all her earnings.
(ii) H.S. made approximately $6,000/week from servicing countless clients. The money was entirely retained by H-O. Neither did E.L. retain any of the money earned from her work in the sex trade. The money would go directly and entirely to H-O., The amount of total earnings has not been determined in E.L.’s case.
(iii) H.S. was only 21 years old when she met H-O. E.L. was only 18 years old when she met H-O in person.
(iv) H.S. depended on H-O. for everything because she felt she did not have anyone else to turn to. H-O. knew H.S. struggled with drug addiction and he controlled her by supplying her with drugs. Like H.S., E.L. consumed Xanax and other drugs supplied by H-O. Like H.S., H-O. knew that E.L. was struggling with drug addiction, and he controlled her by supplying her with drugs.
(v) H-O sold H.S. a false dream and recruited her to work with him.
(vi) H-O’s exploitative conduct towards H.S. lasted approximately 11 months, from March 17, 2018, until February 8, 2019. For E.L., the exploitation lasted approximately 2-3 months.
(vii) H-O demonstrated a propensity for violence, apart from that inherent in his parasitic activities. H.S. recounted that H-O beat her weekly to the point she lost count. He would also use a weapon to scare her. E.L recalled that H-O would choke her and bang her head against a metal padlock. When she would try to get away, he would push her down the stairs.
(viii) H-O. used drugs to induce both victims to continue in the trade for him. He consistently provided H.S. with Xanax, cocaine and other illicit substances, knowing that H.S. struggled with drug addiction, and he controlled her by supplying her with drugs. Like H.S., E.L. consumed Xanax and other drugs supplied by H-O. Like H.S., H-O knew that E.L. was also struggling with drug addiction, so he controlled her by supplying her with drugs.
(ix) H.S.’s VIS speaks about her mental health issues and reliance on therapy and medication due to H-O’s crimes. E.L. eloquently details the impact H-O’s crimes had on her life in her VIS. H-O caused extensive trauma, fear and damage to both of them.
(x) H-O. demanded sex from E.L, but not from H.S. He would get angry at E.L. when she did not want to have sex with him.
(xi) H-O. also made concerted efforts to keep these two women as his captives. When H.S. first told H-O she was leaving him, he threatened to pour alcohol on her and set her on fire. Similarly, E.L. did not want to work in the sex trade, but H-O got angry with her when she would tell him she wanted to stop providing escort services.
[81] Against this background, it is plain, and I find that the aggravating factors in this case are voluminous. Amongst others:
(i) H-O used violence and threats to ensure H.S. and E.L.’s compliance. When they said they had had enough, they were met with more violence and more threats. The callous and violent treatment can be seen in the video that H.S. recorded on her phone of H-O assaulting her.
(ii) Both exploitative relationships arose in a domestic context.
(iii) H-O posted semi-nude photographs of H.S. and E.L. to advertise their sexual services. These photographs remain on the internet where they serve to continually victimize both of them.
(iv) H-O. knew that H.S. and E.L. were suffering from drug addictions, yet he used that vulnerability to control them and prey on their addictions for his own greed.
(v) H-O. degraded and humiliated H.S. when he forced her to remove her clothing, go on all fours and put her nose in the corner. He also participated in the recording of H.S. while she was unconscious, and her breasts were exposed, taking obvious pleasure in having her in a virtually comatose state as he slapped her around.
[82] The violence H-O. perpetrated against both victims has certainly left long-lasting physical and emotional scars.
[83] I also find that there are also a number of mitigating factors in H-O’s favour:
(i) H-O is a youthful first-time offender. He has no prior criminal record. He was 20 years old at the time of these offences and is 24 years old at the time of sentencing.
(ii) H-O has pleaded guilty and accepted responsibility for his actions.
(iii) H-O is remorseful for his actions and the harm he caused. He appears to have learned from his actions and is committed to taking steps to ensure they are never repeated.
(iv) By pleading guilty, H-O saved the complainants from the additional trauma of testifying a second time, and he has saved precious court resources at a time of significant back-log due to the pandemic.
(v) While in custody, H-O has completed programming to address anger management and to develop life skills. He is also working successfully on completing his high school education.
(vi) H-O has struggled with serious mental health issues and experienced significant trauma throughout his life. While it has been difficult for H-O to speak about and come to terms with his past, he has gained insight and is prepared to seek assistance from a professional counsellor or physician, both in and out of custody, to address his mental health issues, family trauma and its ripple effects, including the negative impacts on his behaviour and relationships with women.
(vii) H-O has strong family and community support. Numerous letters filed as exhibits attest to the support he will enjoy from family and others upon his release.
(viii) And, finally, H-O has spent almost 3.5 years in custody and has been subject to extremely harsh jail conditions.
(iv) Pre-Sentence Custody
[84] H-O has been in custody since February 19, 2019, that is, for almost 3.5 years and for the entirety of the COVID-19 pandemic. From February 19, 2019, to April 21, 2022, H-O was held at the TSDC and was subject to 564 lockdowns, the vast majority due to staff shortages.
[85] From April 21, 2022, to present, H-O has been held at the TEDC. During that time, he has been subject to 26 (23 partial and 3 full) lockdown days and “triple bunking” on 23 occasions. During his time spent at the TDSC, H-O was in full lockdown for 305, or over 54% of the 564 lockdown days, and under partial lockdown for 259 days.
[86] H-O’s time in custody, subject to particularly harsh jail conditions, has had a profound effect on him and ought properly to be considered as a significant mitigating factor on sentence: R. v. Marshall, 2021 ONCA 344; R. v. Duncan, 2016 ONCA 754. H-O. attested to the profound negative effects of these conditions in his Affidavit. I note specifically, however, that the prevailing approach is not to apply such conditions as giving rise to a “credit”. Instead, the proper perspective from which to approach the harsh conditions of pre-sentence incarceration was clarified by Doherty J.A. in R. v. Marshall, above, at para. 52:
The ‘Duncan’ credit is not a deduction from the otherwise appropriate sentence but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the 'Summers' credit will be deducted. Because the 'Duncan' credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.
[87] In Marshall, as Kelly J. noted in M.E.D., above, the practice of giving a mathematically quantified credit for punitive conditions of pre-sentence custody should be avoided, because to do so otherwise ignores that the harshness of pre-trial custody is only one of many factors that go into the determination of an appropriate sentence. That said, inhumane conditions in provincial detention facilities must be a relevant consideration on sentencing.
[88] The harsh conditions at the TSDC have been widely recognized and condemned by this Court on numerous prior occasions. The conditions have been described as “unacceptable, shocking, deplorable, harsh, oppressive, degrading, disheartening, appalling, Dickensian, regressive and inexcusable.” This language was recently adopted by Schreck J. in R. v. Persad, 2020 ONSC 188 at para. 31. He continues at paragraph 32 with the inevitably sad and disgraceful conclusion that improving the environment, and carceral conditions in Ontario penal institutions is just not presently a priority of any kind for this provincial government.
[89] Government’s failure to provide the necessary resources to avoid the accurate characterization of our corrections facilities as “modern day Dickensian” is deplorable, and plainly demonstrates disdain for offenders, rather that treating them as the citizens they are, with the human rights that we insist they enjoy, despite these obvious contrary indicators:
While the harm the current situation does to the overall penal objectives of the sentencing process is obvious, it appears to be a price the Ministry is willing to pay to avoid having to dedicate the resources necessary to ensuring that detention centres such as the TSDC are run properly. The fact that nothing has changed despite repeated criticisms by the courts over the course of several years shows the current situation can no longer be excused as a temporary problem. Rather, it appears to be a deliberate policy choice to treat offenders in an inhumane fashion at the cost of harm to the sentencing process rather than devote appropriate resources to the operation of the institution. Put simply, the Ministry has clearly chosen to save money rather than heed judicial concerns about the lack of humane treatment of inmates.
In my view, we have reached the point where the inhumane conditions at the TSDC go beyond being an unfortunate circumstance and can more properly be described as essentially a form of deliberate state misconduct. As such, it becomes relevant not only to the principles of individualization and parity, but also to the communicative function of sentencing and the overarching sentencing goal of contributing to respect for the law: R. v. Persad, 2020 ONSC 188 at paras. 27-35.
[90] The harsh conditions and number of lockdowns in H-O’s case are shocking, unconscionable, and inhumane. The critical issues highlighted in Persad and many other decisions of this Court are not being addressed. I find this to be profoundly disconcerting because, as Schreck J. observes in Persad, it not only undermines the principles of individualization and parity, but also the communicative function that sentencing is meant to achieve, and its overarching goal of contributing to respect for the law: R. v. Persad, 2020 ONSC 188, at paras. 27-35.
Conclusion and Disposition
[91] In considering the fit sentence to impose in this case, I have had careful regard for all the earlier noted decisions. I have compared the circumstances present in those cases with those that are present here. At the end of that analysis, I find this offender’s moral culpability to be high, but not to the point that a double-digit sentence is called for. H-O’s culpability is high based upon his repeated acts of violence, stomping on H.S.’s head, banging E.L.’s head against a metal padlock, his breach of both victims’ trust, his denigrating and abusive demand that H.S. crawl like an animal for his amusement and that of his friends, the fact that there are two victims and not just one, his skilful manipulation of both victims’ emotions, and the duration and scale of his exploitation of H.S. and E.L.
[92] Nevertheless, this is not only H-O’s first sentence, but it will also be his first carceral sentence. Consequently, in considering the appropriate global sentence, I have borne in mind the well-established sentencing principle laid down by the Court of Appeal in R. v. Priest, above, at p. 296, that an offender’s first prison sentence should be tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence and be as short as possible.[^1]
[93] As well, I note that H-O has been detained and is now being sentenced during the continuing global COVID-19 pandemic. It is well established that circumstances of COVID-19 adversely affect the conditions of imprisonment. There are increased risks for those incarcerated in any institution, both pre-sentence and post-sentence: see for example, R. v. Kandhai, 2020 ONSC 1611.
[94] Taking account of these considerations, I have concluded that the 10-year sentence sought by Crown counsel is somewhat excessive. The appropriate and proportionate fit sentence for this offender for these offences of human trafficking of two victims, deriving material benefit, advertising and the two assaults, would otherwise call for a sentence of eight-and-one-half years, absent other considerations, having regard to H-O’s high moral culpability. At the global level, however, I find the circumstances of H-O’s case to be more correctly situated somewhere in the vicinity of the seven-to-nine-year sentences imposed on the offenders in R. v. Mfizi, R. v. A.P., R. v. M.C.D., and R. v. Senoubari Abedini (all above).
[95] While that seven-to-nine-year range of sentence, and the particular 8.5-year sentence I have determined is fit in this case, seem correctly situated in my judgment, I must also take account of the mitigating deplorable pre-sentence custody conditions to which H-O has been subjected for three and a half years at the TSDC and the TEDC as described above.
[96] Taking specific account of that mitigating factor, I find that the fit sentence in the circumstances of this case, before application of pre-sentence custody credits under R. v. Summers, above, must be reduced from eight and a half years, globally, to seven years and three months imprisonment, allocated as follows:
Count 7
Human trafficking (H.S.)
( s. 279.01)
4 years and three months consecutive
Count 3
Deriving material benefit human trafficking (H.S.)
(ss. 279.02(1))
4 years concurrent
Count 15
Assault causing bodily harm (H.S.)
(s. 267(b))
18 months concurrent
Count 24
Human trafficking (E.L.)
(s. 279.01)
3 years consecutive
Count 26
Advertising sexual services (E.L.)
(s. 286.4)
2 years concurrent
Count 28
Assault (E.L.)
(s. 266)
12 months concurrent
[97] H-O has been in custody since February 19, 2019. As of this date, August 30, 2022, this amounts to pre-trial and sentencing custody of 1289 days. Based on R. v. Summers, above, H-O will be entitled to credit at the rate of 1.5:1, for a total pre-trial custody credit of 1934 days, that is, 5 years, 3 months and 20 days, or 64 months and 14 days.
[98] H.O, please stand up. In the result, H-O, after taking account of your pre-sentence custody credit entitlement, I find and order you to serve a further sentence of 23 months and 14 days.
[99] The ancillary orders are granted. They include a DNA order; a s. 109 weapons prohibition order; and a non-communication order with respect to H.S. and E.L., pursuant to s. 743.21 of the Code. There shall also be a restitution order in favour of H.S. in the amount of $48,000.
[100] I will conclude by emphasizing two important points for the attention of provincial correctional authorities.
[101] First, I cannot overemphasize my strong and sincere hope and preference that H-O will be permitted to serve the remainder of this sentence at either the Algoma or the St. Lawrence Valley Correctional Centre, where I hope I can be confident that he will be able to receive the medical, psychological, and mental health assessments, assistance, treatment and training that I believe he will need before he is returned to the community upon his release.
[102] Second, taking account of the exceptionally unfortunate detention conditions to which this offender has been subjected for a very long period of time, I wish to respectfully, but forcefully, express my request that corrections officials take steps to ensure that H-O is removed from the Toronto based detention centres, even though this sentence amounts to less than two years, and is thus a provincial reformatory sentence that could be served in those facilities.
[103] I cannot avoid expressing my view that to keep this offender incarcerated in such conditions for the remainder of his sentence, would serve to increase the actual severity of this sentence, In my view it would be unconscionable and beneath the standards we claim to uphold in this democracy, governed by the rule of law, where we claim to treat all citizens, whether or not they be offenders, with the same human rights and dignity that we like to believe and hope remain the foundation of our society.
Michael G. Quigley J.
Released: August 30, 2022
COURT FILE NO.: CR-21-10000390-0000
DATE: 20220830
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
S. H-O.
REASONS FOR SENTENCE
Michael G. Quigley J.
Released: August 30, 2022
[^1]: I acknowledge that the direction of Rosenberg J.A. in R. v. Borde, 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417, that a “first penitentiary sentence should be as short as possible”, could otherwise arise, the “jump” principle does not apply since there is no prior sentence to “jump” from, in light of the seriousness of these offences including the moral blameworthiness of H-O, and since the net sentence after pre-sentence custody credit will result in a reformatory sentence remaining of less than two years.