COURT FILE NO.: CR-20-02001

DATE: 20221021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

KEISIAN BEERANSINGH

Defendant

Michael Ventola, for the Crown

Robb MacDonald and Kendra Stanyon, for the Defendant

HEARD: July 29, August 3-6, 13, 23 and 25, 2021; May 16 and August 4, 2022

REASONS FOR SENTENCE

DAWE J.:

I. Overview

1Keisian Beeransingh was tried before me, sitting without a jury, on an Indictment charging him with a variety of offences, including charges of “human trafficking” and “commodification of sexual activity” offences involving three different complainants.

2On May 16, 2022, I found him not guilty on most of the charges against him. However, the defence acknowledged that the evidence supported finding him guilty on Count 4, which charged him under s. 286.2(1) of the Criminal Code with receiving a material benefit knowing that it was obtained from the commission of a s. 286.1(1) offence. It was undisputed that Mr. Beeransingh had received money derived from the sex work of all three of the complainants, and I agreed with the defence’s concession that his guilt on Count 4 was established beyond a reasonable doubt.

3I must now decide on a fit sentence to impose on Mr. Beeransingh for this offence.

II. The evidence

4Since I summarized the evidence at trial at some length in my May 16, 2022 judgment (R. v. Beeransingh, 2022 ONSC 2828), I will only set out a brief summary here.

5The first complainant, D.C., died prior to trial. However, a series of text messages she exchanged with Mr. Beeransingh were put into evidence. The other two complainants, I.C. and J.L., also testified about both their own and D.C.’s experiences doing sex work with Mr. Beeransingh.

6In March 2016, D.C. was living in her hometown of Sudbury and trying to support herself as a sex worker. She had found herself with no money and nowhere to live, and contacted Mr. Beeransingh, who was a prior acquaintance. They discussed whether D.C. should come to Toronto and go into business with Mr. Beeransingh, with him serving in the role of her pimp. Mr. Beeransingh painted a rosy picture for D.C. of how well he was doing, but also discouraged her from coming to Toronto. However, she insisted that she had no other options, and Mr. Beeransingh eventually bought her a bus ticket to Toronto, using money that he owed her.

7For the next nine months D.C. worked in the sex trade in and around the Greater Toronto Area. Soon after she arrived, she suggested that her friend I.C. also come to Toronto and join her. D.C. and I.C. had done sex work together before, and I.C. testified that D.C. told her that her new situation was good because she was making more money and working with someone she trusted.

8I.C. testified further that she and D.C. both agreed to split their profits from sex work 50/50 with Mr. Beeransingh. His role was “basically to help us organize everything”, including where they stayed, how they travelled around, and their advertising of their sexual services on the internet. However, I.C. testified that despite this agreement Mr. Beeransingh only gave her money occasionally. When she asked for more money “he would always like agree, but he would never follow through with that”, or would make excuses about how he needed it to pay expenses, and I.C. would eventually drop the subject.

9After working with Mr. Beeransingh for approximately two or two and a half months I.C. became frustrated that she was not being paid her share of the profits, so after taking a trip home she decided not to return to the GTA. Mr. Beeransingh said he would send her the money he owed her, but he never did, and I.C. did not pursue the matter further.

10At around the same time that I.C. left Toronto, D.C. convinced J.L., her best friend from Sudbury, to come to Toronto to work with her and Mr. Beeransingh. Unlike D.C. and I.C., J.L. had no previous experience doing sex work, but D.C. persuaded her to try it.

11According to J.L., D.C. explained that the arrangement would be that she would pay Mr. Beeransingh a 30% cut of her profits. However, in practice the split turned out to be “more like 50-50 and a bit more”, since some expenses came out of what was supposed to be J.L.’s share.

12J.L. described Mr. Beeransingh as a “business partner and friend”. For her part, I.C. described him as a “friend pimp” rather than a “gorilla pimp”. Neither feared him, although they sometimes worried about disappointing him by not working hard enough.

III. Analysis

A. General principles

13Sentences “must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (Criminal Code, s. 718.1), and must reflect the purposes and principles of sentencing codified in Part XXIII of the Criminal Code, and that have been recognized in the sentencing case law.

14To determine a fit sentence for Mr. Beeransingh, I must consider his own particular circumstances along with the specific circumstances of his offences, and must balance the mitigating factors in his case against the aggravating factors that have been established beyond a reasonable doubt.

15The s. 286.2(1) Criminal Code offence is a hybrid offence with a maximum punishment of 10 years imprisonment when prosecuted by indictment, and no mandatory minimum sentence.

B. Positions of the parties

1. The Crown

16For the Crown, Mr. Ventola submits that an appropriate sentence for Mr. Beeransingh would be one of three years imprisonment, less credit for pre-sentence custody. It is common ground that Mr. Beeransingh was in custody for 11 days before being released on bail, and that he is accordingly entitled to 17 days “Summers credit” on a 1.5 for 1 basis: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575.

2. The Defence

17For the defence, Mr. MacDonald takes the position that a fit sentence for Mr. Beeransingh would be one of two years less a day. He argues further that Mr. Beeransingh should be permitted to serve this time in the community under a conditional sentence order.

C. The gravity of the offence

18Mr. Ventola emphasizes that the “commodification of sexual activity” provisions that Parliament introduced in 2014 have a different conceptual basis than the old prostitution offences they replaced, which had been struck down as unconstitutional by the Supreme Court of Canada in R. v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101.

19In Bedford, McLachlin C.J.C. observed at para. 4 that the previous Code provisions were “primarily concerned with preventing public nuisance, as well as the exploitation of prostitutes”. The new legislative scheme elevates the prevention of exploitation, which had been a secondary purpose under the old legislation, to a primary objective: see R. v. N.S., 2022 ONCA 160 at paras. 48-62. As Hoy J.A. observed in N.S., at para. 55:

Parliament has fundamentally changed the lens through which it views prostitution. Rather than viewing prostitution as a nuisance, it views prostitution as inherently exploitative and something that must be denounced and discouraged.

20I agree with Mr. Ventola that this makes sentencing precedents for the old s. 212(1)(j) offence of “living on the avails of prostitution of another person” of only limited assistance when sentencing offenders for the new s. 286.2(1) offence, despite the obvious similarities between the old and new offences.

21However, I do not accept Mr. Ventola’s further argument that Parliament’s goal of denouncing and discouraging prostitution precludes imposing a conditional sentence for the s. 286.2(1) offence.

22Section 742.1 of the Code includes detailed restrictions on the availability of conditional sentences. None of these restrictions bar a court from ordering that a sentence imposed for the s. 286.2(1) offence be served in the community, as long as it is less than two years.

23In my view, courts should be hesitant to second-guess Parliament’s policy choice. I would adopt Lamer C.J.C.’s comments in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 at para. 81, where he observed:

[I]t would be both unwise and unnecessary to establish judicially created presumptions that conditional sentences are inappropriate for specific offences. Offence-specific presumptions introduce unwarranted rigidity in the determination of whether a conditional sentence is a just and appropriate sanction. Such presumptions do not accord with the principle of proportionality set out in s. 718.1 and the value of individualization in sentencing, nor are they necessary to achieve the important objectives of uniformity and consistency in the use of conditional sentences.

24I would add that Parliament’s goal of denouncing and discouraging prostitution does not make the new “commodification of sexual activity” offences unique in the Criminal Code. Parliament presumably wants to denounce and deter the commission of crimes generally. However, that objective does not conflict with the existence of conditional sentences, since as Lamer C.J.C. observed in R. v. Proulx, supra, at para. 22, the conditional sentence is “a punitive sanction capable of achieving the objectives of denunciation and deterrence”.

25Mr. Ventola points out that in R. v. Joseph, 2020 ONCA 733, where the Ontario Court of Appeal allowed a Crown sentence appeal and imposed a custodial sentence of 15 months imprisonment, the Court of Appeal did not address, or apparently consider, the possibility of ordering that the sentence be served in the community.

26However, it is important to note that the defendant in Joseph was not being sentenced for the s. 286.2(1) offence, but for the distinct offence under s. 286.2(2) of receiving a financial benefit from sexual services performed by a person under 18. He had also been found guilty at trial of multiple other offences: making and possessing child pornography (Criminal Code, ss. 163.1(2) and (4)), and “procuring” and advertising sexual services for consideration (ss. 286.3(1) and 286.4). The 15 month sentence imposed by the Court of Appeal on appeal was a global sentence for all five of these offences.

27Accordingly, I do not read Joseph as implicitly holding that a conditional sentence can never be imposed for the s. 286.2(1) offence, particularly when this offence stands alone and is unaccompanied by any other convictions.

28In summary, if I conclude that a sentence of less than two years imprisonment would be a fit sentence for Mr. Beeransingh in all the circumstances, I am satisfied that the option of imposing a conditional sentence will still be on the table.

29Mr. Ventola argues that there are four main aggravating factors in this case that justify the sentence of three years imprisonment he seeks:

i) Mr. Beeransingh received money from the sex work of three different women;

ii) He was involved in promoting their sex work activities for approximately 10 months;

iii) During this time, he seems to have made a large financial profit; and

iv) He was actively involved in organizing the complainants’ sex work activities, and actively encouraged them to do more work so they would earn more money.

30With respect to the first three of these factors, I agree that all other things being equal, Mr. Beeransingh’s offence would have been less serious if he had committed it for a shorter time, made less money, or involved fewer complainants.

31The fourth factor is more complicated. During the ten months that Mr. Beeransingh received a share of the profits from the three complainants’ sex work, he was acting as what would be commonly described as their pimp. In this role, he was actively involved in arranging and facilitating their sex work activities.

32I accept that Mr. Beeransingh’s conduct might arguably have been less culpable if he had merely received money from the complainants’ sex work without actively involving himself in it. On the other hand, it could also be argued that if he had gratuitously taken a share of their profits without doing any work, their relationship would have been even more parasitical and exploitative than it was.

33Even more importantly, in my view, the main purpose of identifying aggravating factors on sentencing is to permit comparisons with other decided cases. Nearly all s. 286.2(1) sentencing cases are pimping cases. Within this universe of pimping cases, Mr. Beeransingh’s level of direct involvement in the complainants’ sex work does not stand out as especially high.

34Moreover, the overall gravity of Mr. Beeransingh’s proven misconduct is less than that commonly found in pimping cases, as I will discuss further later in these reasons. Among other things, he did not use violence or threats of violence to coerce the complainants, nor were any of them underage. Moreover, the defendants in most other comparator pimping cases were found guilty of additional criminal offences, for which Mr. Beeransingh was either never charged or was found not guilty at trial.

35That said, I do think that Mr. Beeransingh’s conduct towards I.C. warrants special condemnation. While his business arrangements with all three complainants can be characterized as “inherently exploitive” (see R. v. Joseph, supra, at para. 98), he took advantage of I.C.’s apparent unwillingness to be confrontational by reneging on his agreement to pay her a half-share of the profits from her sex work. In my view, this elevates the degree of exploitation that I.C. experienced.

36Section 286.2(6) also provides that:

286.2 (6) If a person is convicted of an offence under this section, the court that imposes the sentence shall consider as an aggravating factor the fact that that person received the benefit in the context of a commercial enterprise that offers sexual services for consideration.

37However, in R. v. N.S., supra at para. 105, the Ontario Court of Appeal held that a “commercial enterprise” should be understood as “any enterprise or business entered into for profit”. Since the vast majority of s. 286.2(1) sentencing cases involve for-profit sex work, this statutory aggravating factor is nearly always present, which makes it of little utility as a means of comparing the relative seriousness of different cases.

D. The circumstances of the offender

38Mr. Beeransingh is now 26 years old. He was 20 years old during most of the ten-month time span over which he committed the offence for which I am now sentencing him. He has no prior criminal record and is accordingly entitled to be sentenced as a youthful first offender.

39As Pepall J.A. recently explained in R. v. Desir, 2021 ONCA 486 at para. 41:

The principle of restraint serves to minimize a youthful first offender’s sentence in that it requires a sentencing judge to consider all sanctions apart from incarceration and where incarceration is required, make the sentence as short as possible and tailor it to the individual circumstances of the offender: R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at para. 32; R. v. Priest, [1996 CanLII 1381, 110 C.C.C. (3d) 289]. The principle also requires the sentencing judge to consider rehabilitation in determining the appropriate length, recognizing that in very serious cases and cases involving violence, rehabilitation alone is not the determinative factor and general deterrence and denunciation must also be considered: Batisse, at paras. 33 and 34. As stated in Priest, the primary objectives in sentencing first offenders and youthful offenders are individual deterrence and rehabilitation, except in cases involving very serious offences and offences of violence: at pp. 294, 296.

See also R. v. Borde, 2003 CanLII 4187 (Ont. C.A.).

40A pre-sentence report was prepared that summarizes Mr. Beeransingh’s background, and the defence also filed letters of support from friends and relatives.

41Mr. Beeransingh was brought up in fairly affluent circumstances. His parents separated when he was young and he was mainly raised by his mother, who works as a radio DJ. He was an only child, but had a close relationship with his mother’s younger brother, who is only a few years older than Mr. Beeransingh and has been more like a brother to him than an uncle.

42Mr. Beeransingh did not finish high school. He explains that when he was in grade 11 his mother moved to Vancouver for work. He went with her and enrolled in high school in Vancouver, but became lonely and after a few months decided to return to Toronto to live with his grandparents. He re-enrolled in high school in Toronto but then dropped out, explaining that he “lost motivation”, in part because he ran into problems coordinating his BC and Ontario school credits.

43Mr. Beeransingh worked in restaurant jobs since his mid-teens. He told the author of the PSR that when he was around 19 years old he began working as a nightclub promotor, explaining that his mother had DJd in clubs throughout his childhood and “that this was an industry he felt very comfortable with”. He also began a relationship with a woman with whom he had a child. They entered into a religious marriage when Mr. Beeransingh was 21 years old, but have since divorced. His ex-wife attributes their breakup in part to the bail conditions that were put on Mr. Beeransingh after his arrest in 2018, which she says included a term that he have no contact with her. However, they remain friends, and she describes Mr. Beeransingh as a “great father and co-parent”. He is now in a new relationship, and his current girlfriend has also written a glowing letter of support.

44Mr. Beeransingh explained to the author of the PSR that he became involved in pimping as a way to make money. His mother had recently begun a new relationship and was about to have second child, and she and her new spouse were moving to a smaller house, which made Mr. Beeransingh feel that he had to move out and support himself. He and his own spouse had just had their baby, and Mr. Beeransingh’s club promotion business was not doing well financially. He explains that it was around this time that a family acquaintance “told me what he was doing” and “offered me a chance to make money”, and that he gave in to the temptation.

45Mr. Beeransingh has also submitted a letter in which he gives this same explanation but acknowledges that he knew at the time that his “involvement was wrong”, and expresses his remorse for his actions.

46Mr. Beeransingh cannot claim additional mitigation for having entered a guilty plea as a further expression of remorse. However, his litigation choices must be viewed in context. He faced other serious charges and cannot be penalized for contesting them, particularly since he was ultimately acquitted of them at trial.

47Moreover, a few months before Mr. Beeransingh’s trial started, another judge of this court had struck down the s. 286.2(1) offence as unconstitutional: see R. v. N.S., 2021 ONSC 1628. The Crown had appealed this decision to the Ontario Court of Appeal, but when Mr. Beeransingh’s trial started the appeal had not yet been heard. I do not think Mr. Beeransingh can be faulted for not wanting to plead guilty to a potentially unconstitutional offence. Had he done so, he would have lost his presumptive right to appeal if the Court of Appeal also struck down the provision.

48After the Ontario Court of Appeal allowed the Crown’s appeal in N.S. and found the s. 286.2(1) offence to be constitutional, months after the evidence in Mr. Beeransingh’s trial was adduced, he did not contest his guilt on this charge. Moreover, even if he had formally pleaded guilty to this one count at the outset of his trial, this would not have affected how the Crown would have presented its case on the remaining counts, nor would it have led to his trial proceeding any faster, apart from the delay that resulted from the need to wait for the Court of Appeal’s constitutional judgment.

49In these circumstances, I am satisfied that Mr. Beeransingh’s formal plea of not guilty to the s. 286.2(1) charge should not be treated as inconsistent with his expressions of remorse, or as undermining their sincerity.

E. The comparator cases

50Both parties have presented me with sentencing precedents. The Crown relies on five cases in which sentences of imprisonment of between 15 and 36 months were imposed for collections of offences that included charges either under the current s. 286.2(1) or the previous “living off the avails” offence in s. 212(1). The defence provided me with two additional cases, as well as a series of dated decisions under the old Criminal Code scheme, which Mr. MacDonald acknowledges are of limited precedential value, in which non-custodial offences were imposed for the old s. 212(1)(j) living off the avails of prostitution offence.

51Of these precedents, I find the Ontario Court of Appeal’s decision in R. v. Joseph, supra, to be the most instructive.

52In Joseph the parties proposed a sentencing range of between 12 months and eight years imprisonment for the current “trafficking in persons” and “commodification of sexual activity” offences. The Court of Appeal declined to fix a range, noting at para. 139 that “[w]e have not received the kind of argument required to establish a precedential sentencing range for sexual commodification offences”. However, the Court agreed that the low end of the range proposed by the parties served “as an appropriate marker or guidepost”.

53The Court of Appeal concluded that on the facts of Joseph an appropriate sentence “falls near the lower end of the range”, explaining (at para. 141):

The offences, although grave and serious by nature and potential harm, were committed without aggravating circumstances by a youthful first offender who, although intentionally embarking on a business in the sale of sexual services, did not intentionally involve children.

54The circumstances of Joseph are similar in some respects to those in the case at bar, but dissimilar when measured on certain other metrics.

55One important point of similarity is that Mr. Joseph was also a youthful first offender, who was only slightly older than Mr. Beeransingh. A further similarity is that Mr. Joseph was also charged with commodification of sexual activity offences in relation to multiple complainants. Although he was acquitted on the charges relating to the third complainant, the Court of Appeal allowed the Crown’s appeal and ordered a new trial on these charges.

56The cases also have important dissimilarities, one of which favours the Crown. Mr. Joseph’s involvement in pimping only lasted for a matter of weeks, coming to an end after the first two complainants went to work for someone else, and Mr. Joseph then arranged for the third to meet a client who turned out to be an undercover police officer. In contrast, Mr. Beeransingh’s offence continued for approximately 10 months. Viewed along this one axis, his offence appears more serious.

57However, on several other axes of measurement Mr. Joseph’s offences look considerably more serious than Mr. Beeransingh’s offence.

58First, and perhaps most significantly, the complainants in the offences on which Mr. Joseph was found guilty were both underage. While it was implicit in the jury’s verdicts that the Crown had failed to prove that Mr. Joseph knew that the first complainant, C.A., was only 16, or that he had failed to take reasonable steps to ascertain her age, he was sentenced on the basis that he had been negligent in failing to learn that the second complainant, R.D., was only 15. As the Court of Appeal explained at para. 41:

[T]he trial judge inferred that Mr. Joseph did not knowingly receive a financial benefit from the sale of sexual services by a minor, but had the lesser degree of culpability of failing to exercise the due diligence in ascertaining her age that the law requires before a mistaken belief in age defence can succeed.¹

59The Court nevertheless emphasized that the second complainant’s young age was still a significant aggravating factor, noting at para. 106:

[T]he offences against R.D. involved the exploitation of a child. The trial judge was therefore obliged, pursuant to s. 718.01 of the Criminal Code, to emphasize denunciation and deterrence in sentencing Mr. Joseph. The trial judge's decision shows a careful focus on Mr. Joseph's rehabilitative potential and demonstrates commendable attention in attempting to gauge the impact of the sentence on Mr. Joseph. However, his reasoning, and the sentence imposed, do not reflect the prominence of the principles of denunciation and deterrence that the law requires.

60Second, Mr. Joseph was found guilty of five different offences, at least some of which were more serious than the single offence for which Mr. Beeransingh is being sentenced.

61As I have already discussed, Mr. Joseph was found guilty of the aggravated offence of receiving a material benefit from the sale of sexual services by a minor, contrary to s. 286.2(2), whereas Mr. Beeransingh is being sentenced for the separate and less serious offence in s. 286.2(1).

62Mr. Joseph was also found guilty and sentenced on charges of procuring C.A. to sell her sexual services (s. 286.3(1)), and of advertising the sexual services of both complainants (s. 286.4). The procuring conviction appears to have been based on the evidence that Mr. Joseph had suggested to C.A. that she could make money as a prostitute, and that “but for this act by Mr. Joseph, [she] would not have sold the sexual services that she ultimately provided”: Joseph, supra, at para. 72.

63In contrast, two of the complainants in Mr. Beeransingh’s case, D.C. and I.C., were already doing sex work before they became involved with him, while the third complainant, J.L., testified that she had been persuaded to try sex work by her best friend D.C., rather than by Mr. Beeransingh. He was charged with procuring in relation to J.L., but Mr. Ventola very fairly acknowledged that the evidence did not support a finding of guilt on this count.

64In addition, Mr. Joseph was found guilty of making and possessing child pornography based on his having taken sexualized photos of R.D. for use in her online advertisements. The Court of Appeal emphasized that even though the photos were not explicit these offences were still serious, explaining at para. 102:

What made the child pornography offence serious was not how revealing or graphic the images were, but that, by design, they depicted R.D., a child, as sexually available, and that they were created by Mr. Joseph for his own profit, an aggravating circumstance pursuant to s. 163.1(4.3) of the Criminal Code.

65On balance, I think that the multiple offences for which Mr. Joseph was sentenced were, viewed collectively, more serious than the single offence for which I am now sentencing Mr. Beeransingh. Even though the longer duration of Mr. Beeransingh’s offence, and the amount of money he likely made as a result, are both properly treated as aggravating circumstances, I think they are outweighed by the other aggravating factors that existed in Joseph but are absent here.

66R. v. Morgan, 2018 ONSC 2007, also warrants further mention since the accused in that case, like Mr. Beeransingh, was sentenced on a single stand-alone charge under s. 286.2(1). The accused in Morgan received an 18 month sentence.

67There are some points of similarity between Morgan and the case at bar. Mr. Morgan was also a first offender, although he was less youthful than Mr. Beeransingh, having been 26 years old when he committed the offence at issue. Another similarity is that the complainant in that case “was already working as a prostitute when she met the offender” (at para. 20). Moreover, Mr. Beeransingh, like Mr. Morgan, appears to have been supporting himself financially entirely from the complainants’ sex work during the time he committed the offence.

68However, there are also some significant differences. Mr. Morgan and the complainant were in an intimate relationship, and the trial judge found that he had “exploited [her] trust” (at para. 18). The trial judge described his behaviour towards the complainant as “aggressive and controlling” and characterized their relationship as “oppressive and demeaning” (at paras. 5, 7). In contrast, the complainants who testified in the case at bar described Mr. Beeransingh’s relationship with them and D.C. as a friendship and business partnership. While I accept that Parliament considers any such “partnership” to be inherently exploitive, and also find that Mr. Beeransingh took particular financial advantage of I.C., his relationship with the three complainants did not have the specific aggravating factors that were identified in Morgan.

69It is also worth noting that Mr. Morgan, who was 29 years old at the time of sentencing, had only a “minimal and sporadic” adult work history. Mr. Beeransingh’s own work history, while less than impressive, holds open some hope for his future rehabilitation. His mother described him to the author of the PSR as having a “good work ethic”. While Mr. Beeransingh currently seems to be supporting himself mainly through stock market and cryptocurrency speculation, he has also provided a letter of support from a restauranteur who describes Mr. Beeransingh as having “been an invaluable asset” in his opening of a chain of franchise restaurants, and who says that Mr. Beeransingh wants to open his own franchise “once he has resolved his legal issues”. While the precise nature of Mr. Beeransingh’s involvement in this restaurant venture is vague, I am at least somewhat more optimistic about his prospects for gainful employment than the trial judge in Morgan seems to have been.

70On balance, while Mr. Beeransingh’s offence lasted longer than the offence in Morgan and involved more complainants, I would nevertheless place it at a lower point on the overall seriousness spectrum, in that the offence in Morgan seems to have involved higher levels of coercion and more overt exploitation of a relationship of trust. In addition, Mr. Beeransingh was much younger than the defendant in Morgan when he committed the offences, and he appears to now have better rehabilitative prospects.

F. Determining a fit sentence for Mr. Beeransingh

71In R. v. Priest, supra at pp. 294-95 C.C.C., Rosenberg J.A. observed that:

The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation.

He noted further at p. 296 C.C.C. that even when a custodial sentence is appropriate:

[I]t is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.

72Mr. Beeransingh is being sentenced for a serious offence. However, indictable offences are all serious, and I am not satisfied that the s. 286.2(1) offence can be fairly described as “very serious”, at least in situations where, as here, it is committed without the use of violence or threats of violence. Unlike the situation in Joseph, where the complainant was underage, Parliament has not singled out the s. 286.2(1) offence, which applies to overage complainants, as one where the sentencing objectives of denunciation and general deterrence must always be given priority.

73I am accordingly not satisfied that the inherent seriousness of the s. 286.2(1) offence takes it outside the scope of the Priest principle. This does not mean that denunciation and general deterrence are no longer important sentencing objectives: see Joseph, supra, at paras. 134-35. Rather, it simply means that these objectives must be balanced against the “primary objectives [of] individual deterrence and rehabilitation” when sentencing a youthful first offender.

74All that said, I am also satisfied that a non-carceral sentence would be unfit in the circumstances here, and Mr. MacDonald does not suggest otherwise. Mr. Beeransingh’s offence was inherently exploitative. It went on for months, involved three different complainants, and seems to have led to him making a substantial financial profit. While I accept that Mr. Beeransingh does not need to be imprisoned to deter him from similar misconduct, I still find that a period of incarceration is necessary to achieve the goals of denunciation and general deterrence.

75I am also not satisfied that the circumstances of this case require that Mr. Beeransingh receive a penitentiary-length sentence. As I have already discussed, I think that on balance Mr. Beeransingh’s offence was less serious than those at issue in Joseph, which involved an underage complainant and the commission of multiple additional offences, and where the Ontario Court of Appeal imposed a reformatory-length sentence.

76I would also situate the case at bar at a lower point on the overall spectrum of seriousness than the two other Ontario cases to which the Crown referred me, taking into consideration both the gravity of the underlying offences and the circumstances of the offenders.

77In R. v. McPherson, 2013 ONSC 1635, where the accused received a three-year penitentiary sentence, the 36 year old accused was neither youthful nor a first offender. He also committed more offences than Mr. Beeransingh, having among other things procured the 19 year old complainant to start working in the sex trade. His offences extended over 18 months, during which time he was found to have “exercised significant control over [the complainant], setting an earnings quota for her and dictating “her schedule and the sexual acts she was required to perform” (at para. 25). At one point he uttered a threat to kill her. I do not think the fact that Mr. Beeransingh’s offence had three victims elevates its overall seriousness to the same level as the offences in McPherson. It is also a very important factor that Mr. McPherson was not entitled to be sentenced as a youthful first offender.

78R. v. Ellis, 2017 ONSC 3812, where the accused received a 20 month sentence, is a closer comparator, since the trial judge in that case found the relationship between the accused and the complainant to be “somewhat exploitive, [but] not to the same degree as in McPherson”. However, the accused in Ellis was also found guilty of multiple offences, including charges of “procuring” and “exercising control, direction or influence over the movements of a person” under the previous Criminal Code scheme. Moreover, while the trial reasons characterize him as a first offender, they do not describe him as youthful.

G. Should Mr. Beeransingh serve his sentence in the community?

79Once a judge determines that an offender should receive a reformatory-length sentence, as opposed to a penitentiary-length sentence or a non-custodial disposition, the possibility of ordering that the sentence of imprisonment be served in the community becomes an option.

80The first question that must then be considered is whether Parliament has eliminated the conditional sentence option for the specific offence at issue, even in those situations where a reformatory-length sentence has been found appropriate.

81As I have already mentioned, none of the statutory exclusions in s. 742.1 capture the s. 286.2(1) offence. It does not have a mandatory minimum sentence or a maximum sentence of 14 years or life imprisonment (ss. 742.1(b) and (c)). Moreover, the s. 286.2(1) offence is not of such a nature where it will ordinarily “result in bodily harm” to anyone or “involve the use of a weapon” (ss. 742.1((e)(i) and (iii)).

82Finally, Parliament has not included s. 286.2(1) in the list of disqualified offences in s. 742.1(f), even though this list does include the related offence in s. 279.02(1) of obtaining a material benefit from trafficking in persons. In this case Mr. Beeransingh was also charged with two counts alleging the s. 279.02(1) offence, but the Crown fairly conceded at the end of the case that the evidence did not support findings of guilt on these counts.

83The availability of a conditional sentence thus hinges on the factors in s. 742.1(a), which requires courts to consider: (i) whether service of the sentence in the community would endanger the safety of the community; and (ii) whether making a conditional sentence order “would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2”.

84In this case, I am satisfied that having Mr. Beeransingh serve his sentence of imprisonment in the community would not endanger community safety. He has no prior criminal record and no history of reoffending during the four years he has been on bail awaiting trial. I am satisfied that the risk of his reoffending while serving a conditional sentence is low. Moreover, there is no evidence that he was ever violent towards any of the three complainants. In these circumstances I am satisfied that having him serve any term of imprisonment that I impose in the community would not put the safety of the community at risk.

85The more difficult question is whether making a conditional sentence order in this case would accord with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

86The primary objectives of sentencing are set out in s. 718(a) through (f). As Lamer C.J.C. explained in R. v. Proulx, supra, at para. 102, a conditional sentence can often achieve the objective of denunciation:

Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances.

87In this case, using Joseph as a benchmark, I think a fit reformatory sentence for Mr. Beeransingh would have been in the 12 to 15 month range. As Mr. MacDonald acknowledges, if I order that Mr. Beeransingh serve his sentence in the community, I can significantly increase the length of the sentence, while still keeping it under the statutory two-year cap. This makes it easier for me to impose a conditional sentence that properly denounces Mr. Beeransingh’s conduct, while still achieving the other advantages that would result from keeping him in the community.

88With respect to the objective of deterrence, Lamer C.J.C. recognized that even though incarceration “is ordinarily a harsher sanction, … a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences”: Proulx, supra, at para. 107. In this case, I can increase the deterrent effect of a conditional sentence by making it significantly longer than what would have been a fit jail sentence for Mr. Beeransingh. I can also include a community service order, which can be seen as having both a punitive and a rehabilitative aspect.

89As I have already discussed, I see no need to separate Mr. Beeransingh from society in the interests of community safety.

90Finally, as Lamer C.J.C. observed in Proulx, supra, at para. 109, “a conditional sentence is generally better suited to achieving the restorative objectives of rehabilitation, reparations, and promotion of a sense of responsibility in the offender.” That is an especially important consideration in this case, since rehabilitation is a primary objective when sentencing a youthful first offender like Mr. Beeransingh: Priest, supra.

91Moreover, I do not think that any of the other sentencing objectives set out in ss. 718.01 to 718.1 preclude making a conditional sentence order in this case. None of the complainants were under 18 years of age (s. 718.01), and the offence-specific rules in ss. 718.02 and 718.03 are not applicable in this case.

92With respect to s. 718.04, which requires courts to give primacy to the objectives of denunciation and deterrence when sentencing offenders “for an offence that involved the abuse of a person who is vulnerable because of personal circumstances”, I think that at least one of the three complainants, D.C., can fairly be characterized as falling into this category. She first came to Toronto to work with Mr. Beeransingh because she was homeless and having difficulty supporting herself performing sex work in Sudbury. Whether Mr. Beeransingh’s subsequent conduct in relation to D.C. can be properly characterized as “abuse” even though there was no violence or coercion on his part is more debateable, although his actions can fairly be described as “inherently exploitative”. However, giving primacy to the objectives of denunciation and deterrence would not necessarily preclude imposing a conditional sentence, as I have already discussed.

93Finally, as I have also already explained, I do not read Joseph as precluding the imposition of a conditional sentence for the s. 286.2(1) offence. The accused in Joseph was being sentenced for the separate offence under s. 286.2(2) because the complainant in relation to that charge was underage, and he was also being sentenced for multiple other offences.

94Moreover, if the Court of Appeal in Joseph had meant to preclude the use of conditional sentences in all cases, I would have expected the Court to have said so directly, particularly since the Court had previously held that conditional sentences were potentially available as a sentencing option for the previous offence of “living off the avails of prostitution” in what was then s. 212(1)(j) of the Criminal Code: see R. v. Barrow, 2001 CanLII 8550 (Ont. C.A.). As Rosenberg J.A. noted in the Court’s subsequent decision in R. v. Lukacko, 2002 CanLII 41577 at para. 57 (Ont. C.A.):

In Barrow, this court indicated that a conditional sentence could be appropriate in living off the avails offences in the escort agency context where there was no evidence of coercion and violence.

Although Rosenberg J.A. went on to conclude in Lukacko (at para. 60) that “[t]he trial judge could properly refuse to impose a conditional sentence because of the serious aggravating factors that did not exist in the Barrow case”, he did not suggest that a conditional sentence could never be imposed for the s. 212(1)(j) offence.

95I accept that the conceptual underpinnings of the new s. 286.2(1) offence are different in some important respects from those of the old s. 212(1)(j) offence, even though the two offences capture substantially the same conduct. Nevertheless, if the Court of Appeal in Joseph had meant to discard Barrow and Lukacko as no longer good law under the new commodification of sexual activity provisions, I think the Court would have said so expressly. I am not prepared to treat the Court’s silence on the point in Joseph as an implicit reversal of its own prior decisions.

96As Lamer C.J.C. noted in Proulx, supra, at para. 127, “[s]entencing judges have a wide discretion in the choice of the appropriate sentence”. Reasonable judges can, and very often will, disagree about whether a conditional sentence is appropriate in a particular case.

97In the circumstances of Mr. Beeransingh’s case, I am satisfied that a conditional sentence order will adequately achieve the applicable sentencing objectives. While there are some aggravating factors, “[a] conditional sentence may be imposed even where there are aggravating circumstances”: Proulx, supra, at para. 127. Moreover, the principal aggravating factors in this case – namely, the length of time Mr. Beeransingh committed his offence, and the number of complainants involved – are less weighty than the similar factors in Lukacko, where the accused employed multiple women to work as prostitutes over a seven-year period.

98I am accordingly sentencing Mr. Beeransingh to an effective term of imprisonment of two years less a day, to be served in the community pursuant to s. 742.1 of the Criminal Code. This sentence will be reduced by 17 days going forward as Summers credit.

99Mr. Beeransingh will serve the entire length of this sentence under house arrest, with limited exceptions, as I will outline.

100The conditional sentence will include the mandatory conditions required by s. 742.3(1). It will also include the following additional conditions under s. 742.3(2):

i) Mr. Beeransingh will cooperate with his supervisor, sign any releases necessary to permit the supervisor to monitor his compliance, and provide proof of compliance with any condition of this Order to his supervisor on request.

ii) House arrest: Mr. Beeransingh is to remain in his residence at all times except:

(1) for medical emergencies for himself or his child;

(2) for going directly to and from or being at employment, court attendances, religious services, legal or medical or dental appointments, and performing community service hours. Mr. Beeransingh will confirm his schedule in advance with his supervisor setting out the times for these activities;

(3) with the prior written approval of his supervisor, which he must carry with him during these times;

(4) for three hours on one occasion per week, on a date approved of by his supervisor, for acquiring the necessities of life;

(5) for carrying out any legal obligations regarding compliance with this Order.

iii) During his home confinement, Mr. Beeransingh must present himself at his doorway upon the request of his supervisor or a peace officer, for the purpose of verifying his compliance with his home confinement condition.

iv) Mr. Beeransingh is not to buy, possess or consume any alcohol or drug or substance prohibited by the Controlled Drugs and Substances Act unless with a valid medical prescription.

v) Mr. Beeransingh is to attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the supervisor. He will sign any release of information forms as will enable his supervisor to monitor his attendance and completion of any such programs.

vi) Mr. Beeransingh will perform 100 hours of community service work on a rate and schedule to be directed by the supervisor, but which must be completed within 18 months of the start date of this Order.

vii) Mr. Beeransingh is not to contact or communicate, directly or indirectly, by physical, electronic, or other means with J.L. or I.C.;

viii) Mr. Beeransingh is not to be within 250 meters of any place he knows J.L. or I.C. to live, work, go to school, frequent or happen to be.

ix) Mr. Beeransingh is not to possess any weapons as defined by the Criminal Code.

x) Mr. Beeransingh shall make reasonable efforts to seek and maintain suitable work and shall provide proof of same as required by his supervisor.

101After Mr. Beeransingh has completed this sentence, he will be placed under probation for 18 months. The terms of his probation will be the same as the terms of his conditional sentence order, with the exception of the house arrest and monitoring terms in ii) and iii) above, and the community service term in vi).

102Since I am ordering that Mr. Beeransingh serve his term of imprisonment in the community and have included a non-communication term regarding J.L. and I.C. in the conditional sentence order, I will not make the free-standing non-communication order under s. 743.21 that the Crown requested.

103The s. 286.2(1) offence is a secondary designated offence under s. 487.04(a). Mr. Beeransingh has no prior criminal record. While the s. 286.2(1) offence is serious, it is not by its nature one where DNA evidence is likely to be useful as an investigative tool. Even though the impact of making a DNA collection order on Mr. Beeransingh’s privacy or security of the person would not be especially severe, I am not satisfied that making such an order would be in the best interests of the administration of justice in the circumstances of this case.

104Under s. 737 of the Code, a victim impact surcharge of $200 per offence is mandatory unless the court is satisfied that making such an order would cause undue hardship to the offender or be disproportionate in the circumstances. I am not satisfied that either of these conditions for relieving Mr. Beeransingh of this obligation exist here. Accordingly, there will be a victim impact surcharge of $200.

The Honourable J. Dawe

Footnotes

1. 1The Court of Appeal observed that the trial judge’s interpretation of the jury’s verdict was “problematic” in view of how he had instructed the jury, but since the Crown had not appealed this aspect of his sentencing decision the Court chose to “proceed on the basis of that finding”.