Overview

[1] After a jury day trial, on October 4, 2022, Kirk McIntosh was found guilty of the offences of human trafficking (s. 279.01), receiving a material benefit (s. 279.02) and procuring (s. 212). He was acquitted of both uttering a threat to cause death and of assault. It is agreed that the s. 212 charge (count 4) should be conditionally stayed pursuant to the principles in Kienapple. It is also agreed that the sentence imposed on the receiving a material benefit charge (count 3) should be concurrent to the human trafficking count (count 2). Accordingly the issue to decide is what is a fit sentence for the human trafficking count.

Facts

[2] In terms of the facts, I will address the circumstances of both the offences and the offender.

Circumstances of the offence

[3] The jury found Mr. McIntosh guilty of three offences and not guilty of two offences. I must determine the facts upon which he is to be sentenced. There is no requirement to arrive at a complete theory of the facts, but I must make those factual determinations necessary for the appropriate sentence. I am required to accept the express and implied factual implications of the jury’s verdict, and must not accept as a fact any evidence that is consistent only with a verdict rejected by the jury. Before relying on any aggravating fact, I must be satisfied that the Crown has proven its existence beyond a reasonable doubt: R. v. Ferguson, 2008 SCC 6 at paras. 17-18.

[4] I find that the following are the circumstances of the offences.

[5] The offender met the complainant, M.M., in early 2010. She was 20 and the single mother of a one year old. He was 23. They met through a friends in the building where M.M. was staying. She bought marijuana from him. He was working as a drug dealer at the time and regularly flashed large sums of cash around.

[6] Over the next couple of months, they got to know each other. She developed feelings for him and they became intimate. Mr. McIntosh was friendly with her daughter and made her feel like they were becoming the family she wanted.

[7] Soon, after learning that Mr. McIntosh was involved in the sex trade, M.M. approached him about becoming involved herself. He set her up working in the sex trade at various hotels. The first time she worked, she kept the money she earned and was told by Mr. Mcintosh that she should show her friends what she had earned. She did so, as a result of which some of them also became involved. After that first night, Ms. M. was not permitted to keep the money she earned. While Mr. McIntosh sometimes gave her some money, for the most part, he kept her earnings. This was one of many ways in which he sought to control her.

[8] I accept Ms. M.’s evidence that she worked in the sex trade from about three months after she met Mr. McIntosh, on and off, until the summer of 2012.

[9] During this period, she regularly sold her sexual services to clients at hotels, and also did calls to other locations. Mr. McIntosh provided her with alcohol and marijuana, both of which she said she needed to continue to numb herself from the work. Mr. McIntosh took photos of M.M. for ads and placed ads selling her sexual services on websites. He provided her with phones to organize her services with clients. He booked hotel rooms for her to use. Mr. McIntosh was always nearby. He said he was there to protect her, and he was involved in protecting her on occasions when she needed it. At the same time, he was also there to ensure that she continued to work for him, as is evident by the way she was required to keep him updated as to where she was and with whom.

[10] There were times when M.M. did not want to work. I accept that Mr. McIntosh would persuade her to continue. When she was off work, he would often accompany her to visit her mother and daughter and would stay with her, driving her back to work after their visits.

[11] M.M. had opportunities to report what was happening to police. She did not do so for reasons that she explained. For instance, when police came to the hotels in which she was working, she felt that she had no choice but to tell them that she was an independent contractor and that Mr. McIntosh was her boyfriend. She believed he was her boyfriend. Moreover, as she testified, she did not want to say anything that might get him in trouble because she was fearful of him and concerned for her own safety and that of her daughter. I accept her evidence as to why she did not want to be perceived as a “rat”.

[12] While Ms. M. described two instances in which she was assaulted by Mr. McIntosh, the jury found him not guilty of assault. As a result, I do not find that he inflicted any physical violence on her.

[13] I do accept Ms. M.’s evidence about two instances in which she witnessed Mr. McIntosh’s violence toward others. She described three such incidents: once directed at a young man who she said tried to kiss her, once inflicted on a client in order to protect her, and once on another woman who worked in the sex trade. Given the close link in M.M.’s evidence between the assault on the young man and the death threat she alleged Mr. McIntosh made against her, and the fact that the jury found him not guilty of uttering that threat, I cannot find beyond a reasonable doubt that the assault on the young man occurred as M.M. described. I find the complainant witnessed Mr. McIntosh’s use of violence on a client and on another sex worker, both of which increased her fearfulness of him.

[14] Mr. McIntosh was in jail twice while M.M. worked for him. The first period was from the late fall 2010 to early 2011. She was able to stop working and told him that she did not want to continue. When he was released from jail, he told her to return to work, guilting her by telling her that if she didn’t, he would have to return to selling drugs and would go back to jail. I accept that this persuaded her to resume sex work despite the fact that she did not want to do so.

[15] There is no question that in the summer of 2011, M.M. became pregnant with Mr. McIntosh’s baby. While she did not want to have an abortion, he made her feel that she had to and then sent another sex worker with her on the day of the procedure, effectively to ensure that she went through with the procedure. Mr. McIntosh returned to jail shortly after, and when he was released, he continued to insist that M.M. work in the sex industry. She did so because she still felt both loyalty to him and in love with him.

[16] By the summer of 2012, M.M. decided to leave the sex trade. While Mr. McIntosh was having a relationship with another woman, Shemika Legall, he made it very difficult for M.M. to leave him. Eventually, she did leave, later learning that she was pregnant with his child, who was born in April 2013.

[17] Mr. McIntosh was arrested after the complainant first made a police report in July 2019.

Circumstances of the offender

[18] Mr. McIntosh is now 36 years old. Born in Jamaica in 1986, he lived with his grandmother until coming to Canada in 1991. Here, he lived with his sister and was raised by their father, initially as a single parent and then with his stepmother. His father was new to Canada and did not have stable employment or housing. Mr. McIntosh fell in with the wrong crowd and turned to a life of trying to obtain “fast money”.

[19] From the time he was young, Mr. McIntosh began amassing a lengthy and significant criminal record. Between 2005 and 2019, that record has 35 entries. The offences include theft, robbery, possession of drugs, dangerous operation of a motor vehicle and offences against the administration of justice (such as obstructing police, fail to attend court and fail to comply with recognizance and probation).

[20] At the time of the offences, Mr. McIntosh had no employment other than selling marijuana. His stepmother, with whom he was close, died in 2013. He says that the day before she died, she told him that he needed to stay out of trouble. He says that he has tried to do so since his 2013 release from custody and that he has turned his life around. While his record reflects a gap in convictions after 2013, he has been convicted of seven further offences since prior to those that are before the court.

[21] After 2013, Mr. McIntosh was back and forth between Toronto and Edmonton, holding a few jobs prior to his arrest on these offences in 2020. He has 5 children with whom he says he has a close relationship.

[22] When given his right of allocution, Mr. McIntosh apologized for having wasted the court’s time and said he wished he and the complainant had handled things differently and been able to come to a better custody arrangement. He apologized for having broken her heart 10 yeas ago, professing that he had loved her. The implication of what he said was that the complainant’s evidence at this trial was because he had broken her heart and was angry about the custody of their son. His only acknowledgment of having done something wrong was that he was not there for their son.

[23] Mr. McIntosh, in my view, showed a complete absence of any remorse for the offences for which the jury found him guilty. He disclosed no insight into the magnitude or impact of his actions. Nor did he acknowledge the tremendous damage he has done to M.M. While Mr. McIntosh says he is a “changed man”, and is entitled to continue to deny any wrong-doing (a fact, of course, that is not an aggravating factor on sentence), I find that his total lack of appreciation or understanding either of the reasons for his conduct, or the consequences of it, does not bode well for his long term rehabilitation.

[24] Mr. McIntosh does have support from both family members and friends who both attended at the sentencing hearing and provided letters of support.

[25] Mr. McIntosh’s father describes him as having become a “better version of himself” over the last few years and as an amazing father. Similarly, his brother says he is a great father to his children, whom he loves deeply. In addition, he describes him as a supportive older brother and a kind and loving son to their father.

[26] Shemika Legall, who was described by the complainant at trial as being another sex worker who moved with Mr. McIntosh to Alberta, has also provided a letter of support. She has known Mr. McIntosh since 2011 and characterizes him as ambitious and highly motivated. She says that over the last 5 years, he has made tremendous progress in keeping out of trouble. She describes him as an amazing father to his 5 children. She believes he is supportive of his family and that he is now on the right track.

[27] A member of a Jane Finch community centre, Byron Gray, writes that he has known Mr. McIntosh for 10 years and that he is well-regarded in the community as a person of high integrity and honesty. He suggests that these offences were “probably one of a kind” and observes that Mr. McIntosh has told him he is sorry for “his transgression”.

[28] While no “Morris Report” was obtained in this case, counsel submits that Mr. McIntosh’s background and experience as a Black man is relevant to crafting a fit sentence. No submissions were made respecting how Mr. McIntosh’s experiences or circumstances mitigate his criminal conduct in this case. However, I accept that Mr. McIntosh is a Black man who was raised in some poverty by a single parent in a neighbourhood where he fell in with the wrong crowd. His circumstances no doubt contributed to the paths he has taken and this, along with the restraint principle and over-incarceration of Black men in Canada is relevant to sentencing: R. v. Morris, 2021 ONCA 680.

Impact on the Victim

[29] The complainant prepared a Victim Impact Statement which was filed and as Exhibit 2 on sentence.

[30] In her Victim Impact Statement, M.M. describes the difficulties she has trusting other people and the world at large. Her trust issues have impacted her ability to have romantic relationships. In addition to the monetary costs she had to pay because of debts that she says Mr. McIntosh accrued in her name, M.M. describes the personal toll the offences have taken on her emotionally and the counselling she has needed. She expresses ongoing fear of Mr. McIntosh.

[31] It was clear to me when M.M. testified that Mr. McIntosh’s actions have had a profound impact on her. She was emotionally vulnerable and loved Mr. McIntosh. She hoped desperately that he would be her partner and the father she wanted for her child. She was repeatedly manipulated and betrayed by the manner in which Mr. McIntosh treated her.

Positions of the Parties

[32] The Crown seeks a sentence of eight years for the human trafficking count and four years concurrent for receive a material benefit count, less pre-sentence custody and any other further deductions for either harsh bail conditions (Downes credit) or for onerous conditions in jail (Duncan credit).

[33] In addition, the Crown seeks ancillary orders:

• a DNA order under s. 487.051 of the Criminal Code

• a weapons prohibition order under s. 109 of the Criminal Code; and

• a non-communication order with the complainant under s. 743.21 of the Criminal Code.

[34] The defence consents to these ancillary orders being made.

[35] The defence position is that a fit sentence is one of four years and that the sentence sought by the Crown is excessive. It is the defence position that Mr. McIntosh’s sentence should be reduced from both onerous bail conditions and for the very challenging pre-sentence custody he endured.

Applicable Legal Principles

[36] Section 718, 718.1 and 718.2 of the Criminal Code set out the purposes and objectives of sentencing. The fundamental principle of sentencing is that it must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[37] Repeatedly, courts in this province have described the horrific nature of the crime of human trafficking. For instance, in R. v. Lopez, 2018 ONSC 4729, Campbell J. commented at para. 52 :

52 For many years Canadian courts have decried the inherently exploitive, coercive and controlling actions of "pimps" in relation to prostitutes. The unfortunate contemporary reality of the sex trade is that male pimps typically are involved in the exploitation, degradation and subordination of women. At its most basic level, it is a form of slavery, with pimps living parasitically off the earnings of prostitutes. Pimps exercise their control over prostitutes by means of a variety of tactics including emotional blackmail, verbal abuse, threats of violence and/or pure physical violence and brutality. The prostitutes that are the subject of this coercive exploitation are typically vulnerable and disadvantaged women, who have been manipulated and taken advantage of by the pimp. Even in cases where their initial participation in the sex trade is voluntary, including perhaps their business association with the pimp, and adopted for reasons of perceived increased security and safety in an inherently dangerous line of work, the relationship invariably becomes one-sided and exploitive. Prostitutes are ultimately forced, in one way or another, to provide sexual services for money in circumstances where they would not otherwise have agreed to such services, and the money earned from those sexual services is collected by the pimp. Accordingly, in a very real and practical sense, pimps traffic in the human resources of prostitutes, callously using their sexual services as an endlessly available commodity to be simply bought and sold in the market place. Accordingly, pimps have been aptly described as a "cruel, pernicious and exploitive evil" in contemporary society. See, for example, Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123, at pp. 1134-1135, 1193-1194; R. v. Downey, 1992 CanLII 109 (SCC), [1992] 2 S.C.R. 10, at pp. 32-35; R. v. Grilo (1991), 1991 CanLII 7241 (ON CA), 64 C.C.C. (3d) 53 (Ont.C.A.), at pp. 60-61; R. v. Naud (1996), 1996 CanLII 485 (BC CA), 106 C.C.C. (3d) 348 (B.C.C.A.), at paras. 40-44, affirmed, 1997 CanLII 373 (SCC), [1997] 1 S.C.R. 312; R. v. Miller, [1997] O.J. No. 3911 (Gen.Div.), at paras. 33-45.

[38] In the sentencing context, there is almost thirty years of jurisprudence consistently decrying the brutal nature of pimping and those who engage in it. An oft-quoted passage that captures the terrible effect of pimps is as apt today as it was when it was written in R. v. Glasgow, [1993] O.J. No 1502 (O.C.G.D.):

Pimps are not harmless. They should never be perceived by the naive as being harmless. They provide no beneficial service whatsoever. For money pimps can enslave prostitutes. They control and dominate prostitutes both in their professional and in their personal lives. They enslave the females upon whose earnings they prey. They do that by exploiting the survival needs of the homeless and the unloved…

Those who live on the avails of prostitution are the lepers of both the underworld and the decent world. The money they leach from others attracts no tax, hence directly contributes to human degradation. That is why they are perceived by those who know them, both in the criminal society as well as in the decent world, as being on a level with child molesters…

[39] See also: R. v. A.A., [2012] O.J. No. 6256 at paras. 32; R. v. Antoine, 2020 ONSC 181 at para. 29; R. v. Augustin and St. Armand, 2022 ONSC 5901 at para. 88.

[40] While there is a mandatory minimum four year sentence for the human trafficking offence in s. 279.01, the Crown acknowledges that it has been found to be unconstitutional and does not rely on it: R. v. Jean, 2020 ONSC 624; R. v. Antoine 2020 ONSC 181.

The range for sentence for human trafficking

[41] Both counsel filed cases that set out particular sentences that have been imposed in other cases. I have read and carefully reviewed them all. It is important to remember that sentencing is a highly individualized process and that while these cases assist me, the sentence that Mr. McIntosh should receive is one that gives effect to his circumstances and the circumstances under which he committed these offences.

[42] The parties agree that the usual range of sentence for this offence spans from four to eight years. This is consistent with the observation of Boswell J. in R. v. A.E, 2018 ONSC 471 at para 65, that defining a usual range is difficult because of the vast variety of circumstances in which this offence may be committed. I agree with his observation that the usual range now is roughly four to eight years.

[43] In reviewing the cases before me, I found the following to be of the most assistance:

• R. v. Gardner, 2020 ONSC 5954: The trial judge sentenced the first offender, who was convicted of sexual assault, human trafficking, receiving a material benefit and advertising to provide sexual services for consideration, to a total of 7 years. For the human trafficking, she was of the view that five years was a fit sentence, reduced to four because of the totality principle. In this case, the complainant became involved with the offender and entered the sex trade of her own volition. The offender began exercising control over her, which tightened over time, and lasted over seven months. He took most of her money, but for a small allowance, and the drugs he provided led to her becoming dependent.

• R. v. Jordan, 2019 ONCA 607: The Court of Appeal upheld a six year sentence for human trafficking in which the offences continued over a lengthy period of time, involved complete domination and control of the victim and in which the offender’s moral blameworthiness was found to be extremely high. Physical violence was used and there was serious psychological impact to the victim.

• R. v. Salmon, 2019 ONSC 1574: The offender was sentenced to six years for human trafficking, less credit for pre-sentence custody. The exploitative conduct went on for nearly six months and included threats, intimidation, coercion and insults, which, while not physical, were degrading and harmful to the victim. The victim was not forced into the sex trade, but was made to feel that she had no safe way to leave. The offender kept almost all of the proceeds from the sex trade. He had a long record for offences against persons and was found to have no prospects for rehabilitation.

• R. v. Augustin and St. Armand: the trial judge imposed a sentence of eight years on Augustin, noting that but for his background, remorse and the insight he offered when he spoke to her, she would have imposed a sentence in the nine to ten year range. He had been found guilty by a jury of human trafficking, procuring, advertising the complainant’s sexual services, receiving a material benefit from human trafficking and receiving a material benefit from procuring. The complainant travelled from her home in Quebec to Ontario where Augustin and his co-accused rented hotel rooms and sold her sexual services over two and a half months. She serviced 8 -10 men a day, and once as many as 15 over 12 hours. She saw none of the $1,000 she was making on a daily basis as this was kept by the offenders. Prior to being sentenced, Augustin accepted responsibility for his offences, apologized to the victim and impressed the judge as genuinely remorseful and self-aware.

• R. v. T.T., 2022 ONSC 722: The trial judge concluded that a fit sentence was 9 years (which she reduced to eight years for harsh pre-sentence custody) for an offender found guilty of offences including human trafficking and receiving a material benefit, as well as others. The complainant was a 17 years old, living in a group home. The offender sexually assaulted her and then forced her to perform sexual services for clients in a basement over three days. He advertised her services and provided her with cocaine and alcohol. She tried to leave but was unable to. The offender had a minimal record, had done well while incarcerated, had supportive family, was the father of five children, faced deportation and had prospects for rehabilitation. He was “extremely remorseful” and had taken “full responsibility for his actions”.

[44] In determining a fit sentence for the offence of human trafficking, counsel agree that the factors set out in R. v. Tang, 1997 ABCA 174 and R. v. Miller, [1997] O.J. No. 3911 (Gen.Div.), which have been applied in many sentencing cases in Ontario since, are helpful. These Tang/Miller factors are:

The degree of coercion or control imposed by the accused on the complainant’s activities;
The amount of money received by the accused and the extent to which he allowed the complainant to retain her earnings;
The age of the complainant;
Any special vulnerability of the complainant;
The working conditions in which the complainant was expected or encouraged to operate, including her physical surroundings in terms of soliciting and servicing customers, and safety concerns, in addition to whether appropriate health safeguards were taken;
The degree of planning and sophistication, including whether the accused was working in concert with others;
The size of the human trafficking operations, including the numbers of customers the complainant was expected to service;
The duration of the exploitative conduct;
The degree of violence, if any, apart from that inherent in the accused’s parasitic activities;
The extent to which inducements such as drugs or alcohol were employed by the accused;
The effect on the complainant of the accused’s exploitation;
The extent to which the accused demanded or compelled sexual favours for himself from the complainant;
The age of the customers attracted to the services of the complainant;
Any steps taken by the accused to avoid detection by the authorities; and
Any attempts by the accused to prevent the complainant from

leaving his employ.

“Downes” credit

[45] When an offender seeks credit for stringent bail conditions, the focus of the inquiry is on the impact of the conditions on the offender and whether they were punitive enough to be akin to punishment: R. v. Joseph, 2020 ONCA 733 at paras. 107-108; R. . Schlaepfer, 2022 ONCA 566 at paras. 13, 20-21. The amount of credit to give is within the sentencing judge’s discretion.

“Duncan” credit

[46] A “Duncan” credit may be given for “particularly difficult and punitive presentence custody conditions”. It must be remembered that the 1.5:1 “Summers” credit already takes account of the restrictive and difficult circumstances faced by offenders detained in pre-trial custody. Capped statutorily at 1.5:1, Summers credit is a deduction from what is found to be a fit sentence. Duncan credits is not a deduction from sentence, but rather is a factor to consider in determining a fit sentence. It is analytically considered as a mitigating factors. As such, while it may be quantified in days, it is not necessarily required that this be done, as long as it is properly weighted as a mitigating factor.

Analysis

Findings respecting the Tang and Miller factors

[47] I will summarize my findings respecting the Tang / Miller factors:

1) Degree of coercion or control: I agree with the Crown that in totality, the degree of control and coercion exercised by Mr. McIntosh over Ms. M. was significant. He did not use violence on her and there was no coercion at the outset to have her begin working in the sex trade. However, he used various levels of control over her to keep her working for him, including: emotional manipulation, exploiting her feelings of love towards him and controlling her access to basic necessities of life. While not everything between them was coercive, in that they were in a relationship, I do not accept the defence characterization of the two of them working together towards a common goal. This was not a “joint venture”. It was a parasitic and controlling manipulation of her by Mr. McIntosh to make a profit. Moreover, I am satisfied beyond a reasonable doubt that it was only because of Mr. McIntosh’s coercion that Ms. M. had an abortion and that she returned to work, despite the fact she was suffering medical complications. I found her inconsistencies about the timing of her return to work did not detract from the core of her description as to how events unfolded.

2) The amount of money received by the accused and the extent to which he allowed the complainant to retain her earnings: It is not disputed that the complainant was able to keep the money she earned the first night she worked, and that after that, Mr. McIntosh kept the vast majority of what she earned, giving her cash only infrequently.

3) Age of the complainant: The complainant was a young and vulnerable adult who was 20 when she met Mr. McIntosh.

4) Any special vulnerability of the complainant: I find that the complainant was financially and emotionally vulnerable, vulnerabilities that Mr. McIntosh knew from before she worked for him and which I find that he preyed upon for his own advantage.

5) Working conditions: The complainant worked mainly at hotels and, later on, at an Airbnb. Mr. McIntosh was always present, enhancing her safety and, when necessary, using violence to protect her from clients. He insisted that she wore a condom. In the range of oppressive working conditions that those in the sex trade endure, this was better than many.

6) Planning and sophistication: I find that Mr. McIntosh was quite sophisticated in the manner in which he exploited Ms. M. He rented hotels rooms and organized her transportation. He was active in marketing her – taking photos of her, placing ads and providing her with phones to make plans with clients. He had someone explain to her where she should be, what she should wear and what she as to do. This was a business that he ran in an organized enough fashion that he profited and she got almost nothing. While I accept the defence position that there is little evidence that Mr. McIntosh was working in concert with others, I do not agree with the submission that there was no evidence of sophistication.

7) Number of customers: The complainant said, and I accept proven beyond a reasonable doubt that she had five to six clients a day and that she worked at least five times a week. This went on between May 2010 and the summer of 2012, although there were periods in which there were breaks. On any analysis, she serviced hundreds of clients;

8) Duration of exploitation: This was a long period of exploitation. On the most generous timeline for Mr. McIntosh, Ms. M. began working in the sex trade in May or so of 2010, and left in July 2012, with some gaps in time, making the duration at least 18 to 20 months.

9) The degree of violence: The jury acquitted Mr. McIntosh of assault on the complainant. I conclude that there was no coercion through physical or use of violence on the complainant by Mr. McIntosh.

10) Drugs or alcohol: The complainant testified, and I find beyond a reasonable doubt, that Mr. McIntosh provided her with marijuana and alcohol and that she took both to calm herself down while she was servicing clients in the sex trade. I accept that there is no evidence that Mr. McIntosh gave her these substances in order to induce her to enter the sex trade, but I do find that he supplied them to her as a tool to facilitate her continuing to work for him;

11) Victim impact: Even without the Victim Impact Statement, it was clear to me from the complainant’s evidence that she had experienced an enormous betrayal of trust by Mr. McIntosh, a person she loved. Mr. McIntosh personified abusive and exploitative malevolence: [R. v. Downey, 1992 CanLII 109 (SCC)](https://www.canlii.org/en/ca/scc/doc/1992/1992canlii109/1992canlii109.html), [1992] 2 S.C.R 10 at para. [50](https://www.canlii.org/en/ca/scc/doc/1992/1992canlii109/1992canlii109.html#par50).

12) Personal sexual favours: This is not an issue in this case.

13) Age of the customers: There is no evidence respecting the age of the clients.

Steps to avoid authorities: Ms. M. testified that in this world, no one wanted to speak to police or to be known as a rat. She told police that Mr. McIntosh was her boyfriend. While there is no evidence that he instructed her to do this, she felt that in her situation, she had little choice. I accept this.
Preventing the complainant from leaving: I find that it was as a result of Mr. McIntosh’s ongoing emotional manipulation that Ms. M. continued to work in the sex trade. While there were periods during which she was able to stop, it was his ability and willingness to prey on her insecurities and love, as well as guilt, that enabled him to cajole her back to work for him.

Aggravating and Mitigating Circumstances

[48] I find the following aggravating factors to be present:

a. Mr. McIntosh has a lengthy criminal record as discussed already;

b. The complainant, who was young and vulnerable, was profoundly affected by these offences, and will continue to be;

c. Mr. McIntosh capitalized on Ms. M.’s vulnerabilities, including the fact that she was supporting a child, was unemployed and developed a strong emotional attachment to him to manipulate and coerce her to continue in the degrading and dehumanizing work of the sex trade. He guilted her into continuing to work for him, threatening that if she refused, he would have to resort to selling drugs and would end up back in jail;

d. Mr. McIntosh took almost all the money the complainant made selling sex for himself;

e. Mr. McIntosh made it very difficult for Ms. M. to leave the sex trade;

f. I am satisfied beyond a reasonable doubt that Mr. McIntosh insisted that Ms. M. have an abortion and that he then forced her to continue working shortly after, despite the fact that she suffered with ongoing medical complications from her procedure;

g. Mr. McIntosh’s pimping of Ms. M. continued for a long period of at least 18 months.

[49] There are also some mitigating factors to consider:

a. Mr. McIntosh, at 23 years old, was relatively young when the offences began;

b. Mr. McIntosh did not recruit Ms. M. into the business. She chose to start working in the sex trade absent any coercion;

c. Mr. McIntosh does not appear to have had any criminal convictions since 2019;

d. There are letters from family members that indicate that Mr. McIntosh is a loving and supportive family member. This support will assist him in re-integrating into the community after his period of incarceration;

e. Mr. McIntosh’s time in custody was difficult given the pandemic and conditions at Maplehurst. His sentence must be reduced, as a result, beyond the usual Summers credit;

f. Mr. McIntosh expressed to me, when given his right of allocution, that he has turned his life around and will not be before the courts. While this may be some small indication that he has the capacity for insight into what he has done, there is little else from which to conclude that he has any appreciation into the effects of his criminal conduct or remorse for what he has done. While this is not an aggravating factor, there is, in my view, the absence of what can often be a significant mitigating factor that can assist in rehabilitation; and

g. Mr. McIntosh is a Black man who has had a difficult upbringing and was likely subjected to anti-Black racism.

Mitigation for onerous bail conditions

[50] Between June 11, 2020 and July 31, 2021, Mr. McIntosh was on a house arrest bail. This amounts to 416 days (13 months and 21 days). The defence seeks credit for the period he was released on restrictive bail conditions, pursuant to R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555 (C.A.). The credit sought is at the rate of .4:1 for each day of house arrest, or an additional 166 days for the 416 days.

[51] Mr. McIntosh’s bail terms were that he was to live with his father and to remain in the home at all times except for medical emergencies, while meeting with counsel or while in the direct presence of one of his sureties. He was under an electronic monitoring condition.

[52] While the Crown concedes that this was a restrictive bail for which enhanced Downes credit would usually be given, she submits that the period of this bail was during the pandemic. This time period from June 2020 to July 2021, was a period when much of the country was under lockdowns and significant restrictions. The result for Mr. McIntosh was that he was able, as he sets out in his affidavit, to see his three children every weekend. The Crown submits that I should decline to give credit in these circumstances.

[53] In his affidavit, Mr. McIntosh makes clear that his house arrest had a negative effect on his mental health and that it was difficult to spend meaningful time with his children. He was also unable to see his three year old daughter who lives in Edmonton. Furthermore, he was unable to work over this period to support his family.

[54] There is no mathematical way to calculate Downes “credit”, which is properly understood as a mitigating factor on sentence because stringent bail conditions are punitive and thus akin to custody. In assessing the appropriate weight of the mitigation to be given, factors to be considered include the amount of time spent on the bail conditions, the stringency of the conditions, their impact on the offender’s liberty and the ability of the offender to carry on normal relationships, employment and activity: R. v. Joseph, 2020 ONCA 733 at para. 108; R. v. Place, 2020 ONCA 546 at para. 20.

[55] Mr. McIntosh was on a strict house arrest bail for almost 14 months. Balancing the fact that this was during the pandemic and allowed Mr. McIntosh to spend some time with three of his children against the fact that he was unable to work, to see his daughter in Alberta, was subject to electronic monitoring and that this took some toll on his mental health, I find that this onerous bail is a mitigating factor that should reduce the sentence imposed. In all of the circumstances, I have reduced what I would otherwise have held was a fit sentence of six and a half years by four months to account for this.

Conclusion as to the appropriate sentence

[56] Sentencing is and must be an individualized process and I have decided what sentence is appropriate for Mr. McIntosh, bearing in mind all of the factors I have discussed. This will be Mr. McIntosh’s first penitentiary sentence. In my view, taking into account all of the aggravating and mitigating factors, including the bail conditions he was under, a fit sentence is six years and two months. From this, he is to be credited for pre-sentence custody as set out below.

Pre-sentence custody

[57] Mr. McIntosh was arrested on these charges in Edmonton on May 26, 2020. He was returned to Ontario and released on June 11, 2020. This amounts to 17 days of pre-sentence custody. He was then released on bail.

[58] On July 31, 2021, while he was on bail, Mr. McIntosh was arrested for Edmonton charges and detained in Ontario until August 5, 2021. This is 6 further days of pre-sentence custody. He was sent to Edmonton and released on bail on the Alberta charges. He remained subject to those charges until May 21, 2022, at which point he was released in Edmonton. While his Ontario bail had never been cancelled, he did not return to Ontario.

[59] On September 19, 2022, the day on which his trial was scheduled to begin, Mr. McIntosh surrendered into custody in Peel. He was released, and remained out of custody until the jury’s verdict. There was no GPS monitoring in this period and I did not understand the defence to be seeking enhanced credit for this period of bail. At the time of the jury’s verdict, Mr. McIntosh’s bail was cancelled. He has been in jail since, which is from October 4 until November 17, 2022, a total of 45 days further pre-sentence custody.

[60] This means that there has been a total of 68 days of pre-sentence custody. There must be credit for this of at least 1.5 days for each day in jail, resulting in 102 days of Summers credit. The question is whether there should be additional credit given and if so, how much.

[61] The defence seeks an additional day and a half credit, or Duncan credit, for each day spent in pre-sentence custody under particularly harsh conditions. It is submitted that for all of the time he was in custody at Maplehurst, up until October 31, 2022, he was under lockdown or quarantine. The result is that effective credit of 3:1 is sought for first 51 days of pre-sentence custody, for an additional 77 days of credit.

[62] The Crown acknowledges that it would be appropriate to give some enhanced credit for the periods of complete lockdown. The Maplehurst records indicate that there were 16 days of full lockdown before the jury’s verdict. The Crown also acknowledges that in his affidavit filed on sentencing, Mr. McIntosh describes many additional days of quarantine and isolation, which have really meant he was under lockdowns. As a result, Ms. Puls agrees that it would be fair to give total credit at 2:1, rather than only the Summers credit of 1.5:1.

[63] In my view, given the evidence respecting the conditions under which Mr. McIntosh served his pre-sentence custody, he should receive enhanced credit, over the Summers credit, for the first 51 days. I credit him for an additional 51 days for this time.

[64] The result is that for the 68 days of pre-sentence custody, Mr. McIntosh’s sentence is reduced by 102 days for Summers credit and by a further 51 days of Duncan credit. The total reduction is, therefore 153 days from the sentence of six years and two months.

Sentence to be imposed and ancillary orders

[65] I conclude that a fit sentence for Mr. McIntosh is 6 years and 2 months for count 2, human trafficking (279.01(1)) and 3 years, concurrent, for count 3 (receiving a material benefit (s. 279.02)). Count 4 is conditionally stayed, pursuant to the rule in Kienapple respecting multiple convictions for the same offences. From the 6 year and 2 months sentence, Mr. McIntosh will be credited for 153 days of pre-sentence custody.

[66] In addition, I make the following ancillary orders:

• a DNA order under s. 487.051 of the Criminal Code;

• a weapons prohibition order under s. 109(2)(a) of the Criminal Code for 10 years and under s. 109(2)(b) for life; and

• a non-communication order with the complainant under s. 743.21 of the Criminal Code while Mr. McIntosh is in custody.

[67] I waive the Victim Fine Surcharge in view of the significant term of imprisonment that Mr. McIntosh will serve.

[68] I wish to thank counsel for the careful and professional manner in which they have conducted this case.

Woollcombe J.

Released: November 17, 2022

R. v. McIntosh, 2022 ONSC 6437

Case Summary