COURT FILE NO.: CR-20-00000278-0000
DATE: 20220203
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
T.T., C.S., S.R. and D.P.
Monica Gharabaway, for the Crown
Karen Lau Po Hung, Counsel for T.T.
HEARD: January 27, 2022
WARNING
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
KELLY J.
Reasons for Sentence
OF T.T.
[1] T.T. was convicted of the following offences following a jury trial:
Count
Offence
Section
1
Human trafficking (over 18)
279.01
2
Material benefit from sexual services (over 18)
286.2(1)
3
Procuring (over 18)
286.3(1)
4
Advertising sexual services
286.4
5
Material benefit from trafficking (over 18)
279.02
6
Possess child pornography for publication
163.1(2)
7
Make child pornography
163.1(2)
8
Possess child pornography
163.1(4)
9
Sexual assault
271(1)
[2] T.T. now appears before me for sentencing. Counsel agree that Count 2 (material benefit from sexual services, over 18) should be stayed pursuant to the rule against multiple convictions for the same crimes. Following submissions, I find that Counts 3 and 8 should be stayed based on the same principles.
[3] Crown counsel submits that a global sentence of 11 years would be appropriate. However, having considered the principle of totality, she seeks a global sentence of nine years. T.T. seeks a global sentence seven years. Both counsel agree that T.T. should be given credit for time served.
[4] Counsel agree on the applicable ancillary orders: DNA; a s. 109 order for life, a non-communication order with C.R. (the complainant) pursuant to s. 743.21 of the Criminal Code; and a SOIRA order for life.
[5] For the reasons set out below, I sentence T.T. to eight years’ imprisonment. He will be given credit of three years for his pre-sentence custody for a further five years to serve. The ancillary orders are granted.
[6] What follows are my reasons.
Factual Overview
[7] C.R. was 17 years of age and living in a group home at the time she met T.T. and C.S. at the Eaton Centre. She was persuaded to join them at C.S.’s home in Hamilton, Ontario. Soon after arriving in the basement apartment, both engaged her in sexual acts. (The jury found that T.T. sexually assaulted C.R. but that C.S. had not.) Thereafter, they took photos of C.R. and posted them on the Internet. Advertisements were created depicting C.R. as someone who would provide sexual services in return for money.
[8] Clients responded to the ads and C.R. provided the sexual services. She received none of the monies but was given narcotics and alcohol. Eventually, she returned to Toronto in the company of C.S. She freed herself, but not before providing sexual services to a friend of C.S.’s.
[9] Essentially, by its verdict, the jury accepted that over a period of approximately three days, T.T. and C.S. exercised control, direction or influence over the movements of C.R. They did so for the purpose of exploiting her as a sex trade worker and facilitating her work as such by advertising her services and providing a location in order to receive the monies she earned as a sex trade worker. It is unclear as to how many clients attended for service but it would appear that at least two did so. She received none of the monies.
[10] Additionally, there was evidence that C.R. was forced to sexually service friends of T.T. The jury also found that T.T. had sexually assaulted C.R. The circumstances giving rise to the sexual assault could include two instances described at trial:
a. C.R. testified that after she arrived in Hamilton, both T.T. and C.S. were taking turns having sex with her. She recalls telling them to stop because it was hurting. C.S. told T.T. to give her a break but T.T. did not.
b. C.R. testified that she woke up to find T.T. having sexual intercourse with her. There were 12 to 13 black males in the room when she woke up. She screamed, told T.T. that it hurt and asked him to stop. Another male suggested that T.T. “give her a break” because she doesn’t “want to”. T.T. responded saying, “I am not going to stop until I want to.”
Victim Impact
[11] C.R. was invited to provide a Victim Impact Statement to the Court. She declined but indicated that she would provide a poem. At the time of sentencing, she had not done so.
[12] The Crown was advised, through C.R.’s support worker, that C.R. felt very overwhelmed thinking about these matters again. The Crown was told that C.R. “has a lot going on in her life”. As such, she would not be providing anything to the Court.
[13] That said, C.R. did testify at trial. She testified that because of this incident, she stopped attending school. It is clear that she is still struggling, years later.
Personal History
[14] The following is a summary of T.T.’s background:
a. T.T. is now 40 years of age. He was born on January 21, 1982.
b. He is a permanent resident.
c. T.T. was born and raised in Georgetown, Guyana. He came to Canada in 1996 with his two siblings (an older sister, Gaynelle, and an older brother, Trinel). His mother had come to Canada earlier and the children remained in Guyana. T.T. had an exceptionally close relationship with his father.
d. T.T.’s father was supposed to come to Canada, but that plan changed. The last time that he saw his father was on April 30, 1996 when T.T. departed for Canada. Twenty months later, T.T.’s father died of cancer. The emotional toll from the death was significant.
e. T.T. missed his father after he came to Canada and wished to return to Guyana. After expressing this to his mother many times, she disclosed some information about T.T.’s father that infuriated him. He says that it took him 15 years to come to grips with the information. He was confused because the information about his father was true. (He did not wish to disclose the facts underlying the circumstances of this to the Court.)
f. After his father’s death, T.T. says that he and his mother became the best of friends and have maintained that friendship over the years. They have attended counseling together to deal with issues, including those with T.T.’s father.
g. T.T.’s mother worked and attended school when she came to Canada. She worked full time after the death of T.T.’s father at the Salvation Army Hospice as a personal support worker. For some time, they were living on the benefits of social assistance.
h. T.T. attended school in Canada. He worked at a McDonalds, the Skydome and for Purolator between stints at school. He attempted a music career, but it was not lucrative. He has also worked in construction as a general laborer.
i. T.T.’s brother was diagnosed with schizophrenia. He became a drug addict. T.T. cared for his brother and tried to look after him for about six years.
j. From 2012 to 2015, T.T. lived in Sudbury with a girlfriend. Together, they had two children. He attended at Everest College. He completed the educational requirements for Addiction Counseling but did not complete a required placement.
k. T.T. learned that his girlfriend was also abusing drugs. That lead to their separation. T.T. maintained custody of the children and moved back to Toronto to live with his mother. Eventually, he obtained full custody of the children.
l. Thereafter, T.T. met another woman (in and around 2016). She was an addict and T.T. began doing drugs with her (cocaine, speed and molly). This happened at a time that he learned that his brother was in a relationship with the mother of his children, leading him into depression and further substance abuse. His children were with his mother.
m. T.T. has five children: two are 13 years of age, one is 11 years-old, one is eight years-old and one is six years-old.
n. At the time of these offences, T.T. was an addict and depressed.
o. After these offences, T.T. evaded arrest by living on the street and in Sudbury. He was afraid and paranoid that he would be assaulted when he was arrested. He also feared losing custody of his children. When the police did locate him, he did not identify himself and changed his appearance.
p. Following his arrest, he was on bail akin house arrest.[^1] He had a mental breakdown, leading to a further arrest and incarceration at the Toronto South Detention Centre (the “TSDC”) while awaiting trial.
q. At the TSDC, T.T. has seen a psychiatrist who advises that he suffers from severe anxiety. He has completed an intake assessment with CAMH. CAMH will accept him for treatment when T.T. is released.
r. T.T. has described himself as an advocate of education and believes that educating youth “is the way to go”. He believes that he is in a position to “help and heal family and friends knowing some of the issues that they will be facing and being able to address them”.
[15] Two essays, written by T.T., were submitted to the Court. “Forgive Me, Father” is a thoughtful piece written about the passing of his father and provides some of the history regarding his relationship with his family. “Intergenerational Trauma” is also a thoughtful piece about being a victim of intergenerational trauma. Both are articulate and show great insight about the topics covered.
[16] Letters were filed on behalf of T.T. that demonstrate he has support in the community. They may be summarized as follows:
Emmanuel Adu Boamah: Mr. Boamah has known T.T. and his family for about seven years. T.T. has attended his church from time to time. He describes T.T. as “a good, caring, pleasant, friendly individual” and “helpful, kind and compassionate”. He states that T.T., “loves his family, friends and people in general … he makes friends easily because of his outgoing personality. Overall, he is trustworthy and caring. He always has a smile on his face”.
J.T.: Jahsen is T.T.’s nephew. He describes T.T. as a “very knowledgeable and talented individual who places a strong value on family and friendship”. T.T. has been encouraging and pushes Jahsen to pursue his goals and dreams. Jahsen states that T.T. is, “very interested in the wellbeing of his family members and is willing to sacrifice his own happiness to ensure the happiness of those around him”.
G.T.: Gaynelle is T.T.’s sister. She depended on him to support her when she did not have daycare. She describes that T.T. has “always showed kindness and compassion to everyone who crossed his path”. He would help friends with money and food. He is supportive of his family whether it be “physical, emotional or mental”. She describes him as, amongst other things, “trustworthy”.
[17] T.T. has two entries on his criminal record from 2016: two breaches of recognizance regarding a section 811 peace bond. He was fined $250 on each count in addition to a recognition of five days of pre-sentence custody.
[18] T.T. was arrested on these charges on November 18, 2019. He was in custody at the TSDC until he was released on March 6, 2020. His terms of bail were described as house arrest. He was arrested, again, on June 14, 2020. He has been incarcerated at the TSDC since that time.
[19] The records show that there were a number of lockdowns at the TSDC – 398 from November 19, 2019 (partial and full) during the time that T.T. was in custody. All but nine of the lockdowns were due to staff shortages.
[20] T.T., in an affidavit filed, described the repercussions of such lockdowns. A summary from the TSDC provided information about what occurs at times when the institution is not in lockdown. That information may be summarized as follows:
T.T.
Information from the TSDC
During lockdowns, there is limited ability for the inmates to be outside their cells.
During normal operations, inmates are out of their cells for up to 13.5 hours per day unless they are housed in special supervision units. (Those inmates are normally out of their cells for up to 10 hours.)
He is not given access to showers and telephones.
During normal operation, inmates have unrestricted access to showers and the telephone.
There is a limited time to have a shower or use the phone. As such, T.T. has been forced to choose between showering or calling his loved ones.
During lockdowns, inmates are given 30 minutes to complete phone/shower and in some cases yard. The superintendent may cancel the phone and shower program based on the institutional needs and security concerns.
Since the pandemic began, access to clean towels and “boxers” has been restricted. They are now only provided once a week.
Clothing changes typically are conducted twice a week and hygiene products are distributed daily.
[21] In addition to the abovementioned lockdowns due to staff shortages, T.T. felt the impact of the pandemic in the TSDC. He describes it as follows:
a. That he has, most recently, been in isolation because other inmates on his range have tested positive for COVID-19. As a result, he has been locked in his cell. Meals and medication are delivered through the hatch.
b. That speaking with his lawyer has been difficult. It has also been difficult for T.T. to communicate with his family, including his children.
c. That he remains anxious about his health as many inmates have been diagnosed with COVID-19.
d. That due to depression, T.T. commenced taking an anti-depressant to address his mental health and the added stress associated with the pandemic.
[22] Between March 6, 2020 and June 14, 2020 (99 days), T.T. was on house arrest.
[23] While incarcerated, T.T. participated in the Amadeusz Education Program. The program supports those incarcerated to create positive change in their lives through access to education, community supports and exceptional care. T.T. took advantage of the program and completed several courses towards obtaining his Ontario Secondary School Diploma. The program facilitator has indicated that they can continue to support T.T. upon his release. The letter states:
Throughout his involvement with Amadeusz, T.T. has demonstrated that he is a dedicated, capable and engaged participant. He attends program regularly, completes assignments, takes initiative in his learning and asks for help when needed. Additionally, T.T. maintains a positive attitude toward his work with Amadeusz staff.
[24] T.T. addressed the Court during the sentencing proceeding. He stated as follows:
I’m here today in front of the Court on some very serious charges. The truth is that I’ve done wrong, and I’m sorry. I will forever be pained in having to assess the damage and my actions I’ve caused to another. Being a father of five myself, three of whom are daughters, I cannot even begin to imagine any such thing occurring in their lives.
C.R., I’m sorry. And I hope that one day I can be forgiven.
I look to the future once again with the goal of change, and I’m planning to utilize every tool available to me in the reformation stage including addiction treatment, addiction counseling, medication and therapy.
Thank you, Your Honour, for your time and the Court’s indulgence.
The Law
a. General Principles
[25] In determining an appropriate sentence for T.T., regard must be had to the sentencing objectives in s. 718 of the Criminal Code, R.S.C., 1985, c. C-46, which provides as follows:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[26] The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in ss. 718.2(a)(i) to (vi); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).[^2]
[27] Due to the age of the complainant, the Court is also required to consider s. 718.01, which provides as follows:
When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
b. The Range
[28] As I have stated above, Crown counsel submits that the appropriate sentence is a global one of nine years’ incarceration. Counsel for T.T. submits that a global sentence of seven years is appropriate. Their positions are as follows:
Count
Offence
Crown Position
Defence Position
1
Human trafficking (over 18)
5 years (reduced from 6 years on the basis of totality).
4 years.
2
Material benefit from sexual services (over 18)
Conditionally stayed.
Conditionally stayed (similar to Count 5)
3
Procuring (over 18)
6 years concurrent.
Conditionally stayed (same as Count 1)
4
Advertising sexual services
2 years concurrent.
2 years concurrent.
5
Material benefit from trafficking (over 18)
4 years concurrent.
2 years concurrent.
6
Possess child pornography for publication
1 year concurrent.
6 months concurrent.
7
Make child pornography
1 year concurrent.
6 months concurrent.
8
Possess child pornography
1 year concurrent.
Conditionally stayed (same as count 6)
9
Sexual assault
4 years (reduced from 5 on the basis of totality) consecutive to Count 1 but concurrent to others.
3 years consecutive.
[29] Counsel have provided cases which support their respective positions on sentence.[^3] I have reviewed them and concluded that the sentences proposed by both counsel are within the range of sentences imposed in circumstances such as this.
[30] Based on his conviction for the offence of human trafficking, T.T. faces the mandatory minimum sentence of four years’ imprisonment as set out in s. 279.01(1)(b) of the Criminal Code. However, the law supports a range of four to eight years.[^4] Some guidance for sentencing an offender for human trafficking was addressed by Campbell J. in Lopez at para. 53:
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 consideration. 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 including: (1) the degree of coercion or control imposed by the pimp on the prostitute's activities; (2) the amount of money received by the pimp and the extent to which the pimp allowed the prostitutes to retain their earnings; (3) the age of the prostitutes and their numbers; (4) any special vulnerability of the prostitutes; (5) the working conditions in which the prostitutes were expected or encouraged to operate, including their physical surroundings in terms of soliciting and servicing customers, and safety concerns, in addition to whether appropriate health safeguards were taken; (6) the degree of planning and sophistication, including whether the pimp was working in concert with others; (7) the size of the pimp's operations, including the numbers of customers the prostitutes were expected to service; (8) the duration of the pimp's exploitative conduct; (9) the degree of violence, if any, apart from that inherent in the pimp's parasitic activities; (10) the extent to which inducements such as drugs or alcohol were employed by the pimp; (11) the effect on the prostitutes of the pimp's exploitation; (12) the extent to which the pimp demanded or compelled sexual favours for himself from the prostitutes; (13) the age of the customers attracted to the services of the prostitute; (14) any steps taken by the pimp to avoid detection by the authorities; and (15) any attempts by the accused to prevent the prostitute from leaving his employ. Lesser terms of imprisonment may, however, be appropriate in cases where coercion and/or exploitation are lacking. See generally R. v. Foster (1984), 1984 ABCA 204, 13 C.C.C. (3d) 435 (Alta.C.A.), at p. 441; R. v. Glasgow, [1993] O.J. No. 1502 (Gen.Div.), at para. 3; R. v. Tang (1997), 1997 ABCA 174, 200 A.R. 70 (C.A.), at paras. 5, 11; R. v. Rose, 1997 ON CA 2231, [1997] O.J. No. 1947 (C.A.), at paras. 1, 33; R. v. Miller, at paras. 38-39; R. v. B.(K.) (2004), 2004 ON CA 36124, 184 C.C.C. (3d) 290 (Ont. C.A.), at paras. 3, 6, 77-89; R. v. Mfizi, [2008] O.J. No. 2430 (S.C.J.), at paras. 10, 14-35, 62-67; R. v. A.A., 2012] O.J. No. 6256 (S.C.J.), at paras. 32-33.
[31] Although the cases assist me in determining the governing principles that must guide my decision, a careful review of them demonstrates that sentencing is not an exact science. It is instead, a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. As Chief Justice Lamer noted in R. v. M. (C.A.), 1996 SCC 230, [1996] 1 SCR 500, at para. 92, “there is no such thing as a uniform sentence for a particular crime”. The circumstances of any case, including this one, can be readily distinguished from any other case.
c. Other Considerations:
i. Presentence Custody
[32] T.T. should be given credit for the time he has spent in presentence custody pursuant to s. 719(3.1) of the Criminal Code and R v. Summers.[^5]
[33] Certain circumstances, particularly in the instance of harsh presentence incarceration conditions, can be relevant in the determination of an appropriate sentence: see R. v. Duncan.[^6] The approach to be taken in considering the harsh conditions of presentence incarceration was clarified by Doherty J.A. in R. v. Marshall:[^7]
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.
[34] In light of Marshall, the practice of assigning a credit of a specific number of days or months to punitive conditions of presentence custody is not to be encouraged. The reason? It may skew the fact that the harshness of pre-trial custody is only one of many factors that go into the determination of an appropriate sentence.[^8] That said, presentence custody is a relevant consideration on sentencing.
ii. Bail Conditions
[35] Stringent bail conditions, especially house arrest are a factor to be considered on sentencing.[^9] However, the conditions of pre-trial bail are a mitigating factor. As stated by our Court of Appeal in R. v. Joseph,[^10] at para. 108:
… Mitigation is given because stringent bail conditions can be punitive and therefore "akin" to custody: Downes, at para. 29. The criteria to be considered in assessing the weight of the mitigation to be given therefore include the amount of time spent on bail conditions; the stringency of those conditions; their impact on the offender's liberty; and the ability of the offender to carry on normal relationships, employment and activity: R. v. Place, [2020] O.J. No. 3685, 2020 ONCA 546 (C.A.), at para. 20. The mitigating effect that such considerations have on the sentence to be imposed falls within the discretion of the trial judge: Downes, at para. 37. …
iii. Collateral Consequences
[36] T.T. is a permanent resident and as such, he may be deported. Therefore, the collateral consequences of his sentence should be taken into consideration. The issue of collateral consequences was addressed by the Supreme Court of Canada in R. v. Suter, where the Court stated as follows, at para. 48:[^11]
The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances.
[37] However, Moldaver J. went on to make a further observation in Suter that has direct application to the case here. He said, at para. 56:
I agree with the Court of Appeal that the fundamental principle of proportionality must prevail in every case — collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.
Analysis: The Fit Sentence
[38] In considering the factors outlined in Lopez, my observations are as follows:
Degree of coercion/control: There was a degree of control exercised over C.R. Although there were rules imposed, there is no evidence that violence was inflicted by T.T.
Money received: It is not entirely clear how much money was earned by C.R. in the sex trade business over the three days. There do not appear to have been too many paying clients. However, what is clear is that C.R. did not receive any of the monies she earned.
Age and number of sex trade workers: C.R. was 17 years of age at the time. Although T.T. was convicted of the offence of human trafficking, it would appear that the jury had a reasonable doubt as to whether T.T. knew that she was under 18 years of age at the time.
Vulnerability of C.R.: There is no question that C.R. was vulnerable. It was obvious that she had suffered a significant amount of trauma in her life. She was living in a group home at the time. She had never been to Hamilton before and was stranded there and at the mercy of T.T. and C.S. She did not have a cell phone.
Working conditions: C.R. was expected to work in the sex trade at the direction of T.T. and C.S. Although the basement apartment from where C.R. worked in the sex trade was dirty, she was never placed in a situation where she was alone with a client (T.T. and C.S. were nearby) and in jeopardy other than the obvious jeopardy of being exploited in the sex trade.
Planning and sophistication: It is clear that T.T. and C.S. had a plan to entice C.R. to Hamilton to be employed in the sex trade. It was not long after they arrived there that the plan was explained to C.R. T.T.’s girlfriend (D.P.)[^12] arrived shortly thereafter to assist in posting the ad, setting the rules, answering client inquiries and collecting the money. C.R. was told how to greet clients, what to wear and what she was permitted to say (and not say). Although the operation was not overly sophisticated, everyone had their role.
Number of customers: It is unclear as to the exact number of customers there were and how many of T.T. and C.S.’s friends C.R. was required to service. However, it would appear from the evidence that two clients attended — one of whom offered to assist her and did not require her to perform sexual services.
Duration of the exploitation: The duration of the exploitation was not significant in comparison to the other cases provided. It lasted two to three days.
Violence: T.T. had sexual intercourse with C.R. without her consent. He will receive a consecutive sentence for that act of violence. The offence of human trafficking, itself, is an obvious act of violence committed on C.R. There were multiple physical injuries to C.R.’s body and genitalia.
Drugs or alcohol: C.R. was provided with both drugs and alcohol during the time that she was being sexually exploited by T.T. and C.S.
Victim impact: As stated above, although C.R. was invited to provide a Victim Impact Statement, she declined to do so as she did not feel up to the task. This makes it obvious that the impact on C.R. has been profound and has affected her many years later. There is no doubt that her life has been irreparably changed due to these offences. She was vulnerable at the time she met T.T. and C.S. and this incident only increased that vulnerability.
Personal sexual favours: As I have stated above, the jury found that T.T. sexually assaulted C.R. On another occasion, T.T. requested that C.R. perform oral sex on him. She said no and that was the end of it.
Ages of the customers: The evidence is unclear as to the ages of the customers.
Avoiding the authorities: T.T. avoided police after C.S. and D.P. were arrested. He went to Sudbury. When the police attended at the unit in which he was located, he identified himself as Jermaine Pinnock and changed his appearance.
Preventing the complainant from leaving: There was no evidence that T.T., personally, forced C.R. to stay in Hamilton. That said, he was present when she was told that she was not going home to collect her things and a plan to send her to St. Lucia was discussed.
[39] In considering the fit sentence for T.T., I find the following to be the aggravating factors:
a. The impact on C.R. has been profound and has affected her many years later.
b. C.R. was a person under the age of 18 at the time of these offences. T.T. was 40 years of age at the time.
c. C.R. was living in a group home at the time of these offences and was particularly vulnerable.
d. C.R. was provided with cocaine and alcohol during her stay in Hamilton.
e. T.T. sexually assaulted C.R. himself and then forced her to perform sexual services with paying clients and friends.
f. T.T. assisted in producing the ad offering C.R.’s sexual services for money. Those ads show C.R. semi-nude. They were posted on the Internet, will remain there and will continually victimize C.R.
g. These offences were committed by T.T. with the intent to earn a profit. C.R. received none of the monies from her work in the sex trade.
h. C.R. tried to leave the situation many times. She was told that she was not leaving and that she was to forget her life. There was a plan to obtain travel documentation so that she could travel to St. Lucia and work in the sex trade there.
i. After this incident was reported to police, T.T. took steps to avoid detention. He went to Sudbury and when the police attended at the unit in which he was located, he identified himself as Jermaine Pinnock and changed his appearance.
[40] I consider the following to be the mitigating factors:
a. T.T. is now 40 years of age and he has a minimal criminal record.
b. T.T. had a difficult upbringing.
c. He has done well while incarcerated. He has attended school (via correspondence) and written some essays.
d. The essays demonstrate that T.T. is intelligent and could be a contributing member of our society.
e. He has prospects for rehabilitation.
f. He has the support of his family.
g. He is supportive of his five children.
h. T.T. is extremely remorseful for his conduct. He apologized to C.R. and took full responsibility for his actions.
i. There is the possibility that T.T. will be deported to Guyana where he has no family or community support.
[41] The appropriate sentence imposed must be one from which our society feels protected and which deters others from committing similar crimes, without crushing the hopes of T.T. T.T. also deserves a sentence that addresses the appropriate legal principles in consideration of his background and the facts. Deterrence (general and specific) and denunciation are paramount. The sentence for sexual assault must be imposed consecutive.
[42] This is T.T.’s first real sentence of incarceration. In coming to my conclusion about the appropriate sentence, I am cognizant of the principles set out in R. v. Priest, at p. 296:[^13]
[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.
[43] Further, in reaching my conclusion about the fit sentence, I am mindful of the fact that this is T.T.’s first visit to the penitentiary and of the direction of Rosenberg J.A. in R. v. Borde,[^14] that a “first penitentiary sentence should be as short as possible”. That said, the jump principle is not applicable in light of the seriousness of this offence, including the moral blameworthiness of T.T.
[44] Having considered the aggravating and mitigating factors of this case, including the fact that T.T. was subject to lockdowns, I was of the view that a sentence of nine years would be appropriate.
[45] However, I am persuaded that an adjustment of T.T.’s sentence is appropriate due to the conditions of his presentence custody. I find that he has experienced conditions that are more difficult or punitive than the restrictions normally associated with pre-trial detention. This is due to the lockdowns at the TSDC and the pandemic conditions. As such, I find that a fit sentence is eight years (96 months).
[46] There has been hardship suffered due to the lockdowns, most of which were the result of staff shortages. I echo the sentiments of my colleagues, that although the message is being sent to our government that they must properly staff institutions to permit inmates to reside in humane conditions, that issue has remained, for the most part, unresolved.[^15]
[47] T.T. has served some of his presentence custody and is being sentenced during the global COVID-19 pandemic. The circumstances of COVID-19 adversely affect the conditions of imprisonment. There are increased risks for those incarcerated in any institution, both presentence and post sentence. This observation has been made by several jurists, including Harris J. in R. v. Kandhai.[^16]
[48] T.T. was also on a house arrest bail for 99 days. That has been considered in coming to my conclusion about the appropriate sentence as has the collateral consequence that he may be deported due to his immigration status. The principle of totality has also been considered.
[49] T.T. has spent 707 real days in custody. Enhanced at 1.5 days for each day spent in presentence custody (pursuant to Summers), T.T. will be given credit for 1061 days or a little over 35 months. In the circumstances, I will give T.T. credit of 36 months (three years) for the time he has served.
Conclusion
[50] T.T. is sentenced to eight years. T.T. will be given credit of three years, requiring him to serve a further five years in custody. His sentence will be reflected as follows:
Count
Offence
Sentence imposed
1
Human trafficking (over 18)
5 years less 3 years of time served for a further 2 years to serve.
2
Material benefit from sexual services (over 18)
Conditionally stayed.
3
Procuring (over 18)
Conditionally stayed.
4
Advertising sexual services
2 years concurrent.
5
Material benefit from trafficking (over 18)
4 years concurrent.
6
Possess child pornography for publication
1 year concurrent.
7
Make child pornography
1 year concurrent.
8
Possess child pornography
Conditionally stayed.
9
Sexual assault
3 years consecutive to Count 1.
[51] T.T. will be subject to the following ancillary orders:
a. That he provide a sample of his DNA;
b. A s. 109 order for life;
c. Pursuant to s. 743.21 of the Criminal Code, T.T. shall be prohibited from communicating, directly or indirectly, with C.R. during the period of his imprisonment; and
d. That he be subject to a SOIRA order for life.
Kelly J.
Released: February 3, 2022
COURT FILE NO.: CR-20-00000278-0000
DATE: 20220203
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
T.T., C.S., S.R. and D.P.
REASONS FOR sentence
OF t.t.
Kelly J.
Released: February 3, 2022
[^1]: The Court was not provided with the terms of his house arrest. For example, the Court is not aware if there were exceptions for employment, etc.
[^2]: See R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330, aff’d 2013 ONCA 677, 117 O.R. (3d) 401, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773.
[^3]: For the defence, see for example: R. v. Byron, 2014 ONSC 990, [2014] O.J. No. 723; R. v. Lopez, 2018 ONSC 4749, [2018] O.J. No. 4145; R. v. Gardner, [2020] O.J. No. 4341, amongst others.
[^4]: R. v. Gardner, [2020] O.J. No. 4341 at para. 99
[^5]: 2013 ONCA 147, 114 O.R. (3d) 641; aff’d 2014 SCC 26, [2014] 1 S.C.R. 575
[^6]: 2016 ONCA 754, at para. 6
[^7]: 2021 ONCA 344, at para. 52
[^8]: R. v. Marshall, at para. 53.
[^9]: R. v. Downes, 2006 ON CA 3957, [2006] O.J. No. 555 at para. 33
[^10]: 2020 ONCA 733
[^11]: 2018 SCC 34, [2018] 2 S.C.R. 496
[^12]: Before trial, D.P. pleaded guilty to advertising sexual services for consideration contrary to s. 286.4 and receive a financial benefit (money) knowing that it was obtained directly or indirectly from the commission of the offence of human trafficking contrary to s. 279.02(2) of the Criminal Code. She received a sentence of time served (the equivalent of three years). Various ancillary orders were imposed.
[^13]: (1996), 1996 ON CA 1381, 110 C.C.C. (3d) 289 (Ont. C.A.)
[^14]: (2003), 2003 ON CA 4187, 63 O.R. (3d) 417 (C.A.), at para. 3
[^15]: See R. v. Persad, 2020 ONSC 188
[^16]: 2020 ONSC 1611