1. Overview

[1] Mr. Gordon pleaded guilty to five counts:

• Pointing a firearm contrary to s. 87(1) of the Criminal Code;

• Unlawful confinement contrary to s. 279(2) of the Criminal Code;

• Receiving a financial benefit knowing it was obtained from trafficking a person for the purpose of facilitating their exploitation, contrary to s. 279.02(1) of the Criminal Code;

• Assault causing bodily harm contrary to s. 267(b) of the Criminal Code; and

• Trafficking a person contrary to s. 279.01(1) of the Criminal Code.

[2] Mr. Gordon now comes before the court for sentencing.

2. The Facts

(a) Circumstances of the offence

[3] The complainant, G.L, was employed as a dancer at an adult entertainment club called “For Your Eyes Only”. A co-worker introduced her to Mr. Gordon. They became friends and started what she believed to be an exclusive romantic relationship. The romantic relationship evolved into a business relationship. Mr. Gordon looked after G.L.’s rent, transport, food, and security. In exchange, G.L. turned over all over her earnings to him. He became very aggressive with her, insisting she work every night, even Sunday nights at other clubs when For Your Eyes Only was closed.

[4] G.L. observed Mr. Gordon with a firearm. One time he showed her a handgun and loaded it with a sock so as not to leave fingerprints. In September 2019 he pointed a handgun at G.L., frightening her. He recorded the incident on his phone.

[5] In August or September 2019 Mr. Gordon began to use physical violence with G.L. He “played rough” with her. He choked her. She lost consciousness. On September 4, 2019, Mr. Gordon, G.L., and another female were in a vehicle. Mr. Gordon and the other female were arguing, when Mr. Gordon suddenly hit G.L. in the face. He grabbed her hair and pulled out a large chunk. She received a bruised lip, a cut, and a bald spot where he had pulled out her hair. On September 12, 2019, G.L. was feeling hung over after having friends over for drinks. She did not want to go to work that day. Mr. Gordon insisted that she work at a different club. He threatened to assault her again. G.L. became frightened. At about 7:00 pm that day Mr. Gordon entered her condo uninvited, went to her bedroom, pulled her off the bed, and assaulted her. He kicked her in the head numerous times. She suffered swelling to her head and a black eye. He took photos with his phone. He then forced her to go to For Your Eyes Only to collect her earnings. She turned $1200 over to him. She asked him for the key to her condo back but he refused to give it to her.

[6] For about three months, Mr. Gordon exercised control over G.L. Eventually, G.L. told Mr. Gordon that she wanted out of the lifestyle. He told her she would have to pay him a fee of $50,000 to earn her freedom.

[7] On the night of Friday January 17 and the early morning hours of January 18, 2020, G.L. and another female were at the Shangri-La Hotel in downtown Toronto. G.L. was meeting a man she had arranged to meet at the hotel. Mr. Gordon called her and asked if she was getting paid for meeting this man. G.L. hung up and refused to take his calls. Mr. Gordon then called the other female, and they arranged that Mr. Gordon would pick them up at the Shangri-La. Mr. Gordon attended in a Jeep Grand Cherokee. G.L. and the other female got into the Jeep, G.L. in the front passenger seat. The interaction was captured on the hotel’s surveillance video.

[8] After driving away from the hotel, Mr. Gordon hit G.L. in the head and face about six times. She tried to escape from the car and began screaming. He told the other female to force G.L. back in the Jeep. The other female was unable to do so. Mr. Gordon chased G.L. a short distance. Mr. Gordon and the other female abandoned the Jeep. It was later seized by the Toronto Police and a search warrant executed on it. Investigators found blood on the door and the passenger seat. Forensic results determined that G.L. cannot be excluded as the source of female DNA from the blood, and that the probability that the DNA came from someone else is greater than one in one trillion. In other words, it is beyond question that the blood was G.L.’s. The Jeep was not owned by Mr. Gordon.

[9] At about 1:58 am, on Saturday January 18, 2020, Toronto Police responded to a 911 call. The caller indicated that a woman was bleeding from her head and face. When the police arrived, they spoke to G.L. She told the officers that her pimp was looking for money and beat her up in a car that she escaped from. G.L. subsequently attended a Toronto Police station and provided a statement. She then was taken to Mount Sinai Hospital to be treated for injuries.

[10] Toronto Police arrested Mr. Gordon on February 12, 2020. He was with two females and driving a Mercedes Benz near 1115 Bloor Street West. When he was arrested he had 7 ½ Oxycodone pills on him and over $1500 in cash. He also had a British Columbia driver’s licence with his photograph but a false name.

(b) Circumstances of the offender

[11] According to his affidavit, Mr. Gordon is 26 years old. He was born in Jamaica and came to Canada when he was 8 years old. He grew up in Mississauga and was raised by a single mother. He did not have the support of a father figure. Mr. Gordon did not complete high school. His highest level of education is Grade 11. He states in his affidavit that he worked as a barber before going into custody. He worked at two different salons from 2012 to 2018 and then as a “mobile barber”. Mr. Gordon further states in his affidavit that his plan is to obtain his high school diploma and attend George Brown College to attend the culinary arts program. He has a 14 year old daughter and a 10 year old son, and wishes to spend more time with them.

(c) Impact on the victim

[12] G.L. provided a victim impact statement. The impact on her has been significant. She was a young 20-year old woman when she met Mr. Gordon. She believes that he found her in a vulnerable state and took advantage of her. She feels traumatized by the way he manipulated her for his own financial benefit. She continues to fear for her safety.

3. Legal Parameters

[13] The offences that Mr. Gordon has been found guilty of carry the following sentences:

• Pointing a firearm contrary to s. 87(1) of the Criminal Code carries a maximum sentence of five years when the Crown proceeds by indictment;

• Unlawful confinement contrary to s. 279(2) of the Criminal Code carries a maximum sentence of ten years when the Crown proceeds by indictment;

• Receiving a financial benefit knowing it was obtained from trafficking a person for the purpose of facilitating their exploitation, contrary to s. 279.02(1) of the Criminal Code carries a maximum sentence of ten years when the Crown proceeds by indictment;

• Assault causing bodily harm contrary to s. 267(b) of the Criminal Code carries a maximum sentence of ten years; and

• Trafficking a person contrary to s. 279.01(1) of the Criminal Code carries a maximum sentence of fourteen years and a minimum sentence of four years.

[14] Several judges of this court have found that the mandatory minimum of four years in s. 279.01(1) of the Criminal Code is unconstitutional: R. v. Jean, 2020 ONSC 624; R. v. Antoine, 2020 ONSC 181; R. v. McIntosh, 2022 ONSC 6437.

[15] Assault with a weapon (s. 267), trafficking a person (s. 279.01), receiving a material benefit from trafficking a person (s. 279.02), and unlawful confinement (s. 279) are all primary designated offences for the purposes of making a DNA order.

4. Positions of the Crown and Defense

[16] Ms. Gharabaway, Crown counsel, argues that I should sentence Mr. Gordon to a global sentence in the range of 8-10 years, when all of the offences, including human trafficking, pointing a firearm, and assault causing bodily harm are factored in.

[17] Mr. DeCock, for Mr. Gordon, argues that I should sentence Mr. Gordon to a sentence of five years. He has spent three exactly years in custody – 4 ½ years when credited at 1.5:1. Time spent in custody under harsh conditions over the three year period is a significant mitigating factor. He should be sentenced to time served.

5. Range of Sentence

[18] Ms. Gharabaway, for the Crown, argued that the range of sentence for human trafficking cases is four to eight years. The other offences, the pointing firearm and the assault causing bodily harm, are what take the sentence to the range of 8-10 years in total.

[19] In R. v. Lopez, 2018 ONSC 4749, [2018] O.J. No. 4145 a jury convicted the offender of offences associated with human trafficking. The accused exercised control over the victim for the purpose of exploiting her as a sex worker over a 17 ½ month period. He took her earnings, advertised her sexual services, and used violence and intimidation against her. They originally had a business relationship. She would work as a sex worker. He would set up the appointments, advertise her services, drive her to and from appointments, and provide security. They would split the earnings 60% (for him) to 40% (for her). He soon started keeping 100% of the profits. He also demanded she work more until he was satisfied she had earned enough. He began physically abusing her. He began to control her through fear but also through a “romantic” attachment. He began ordering her to provide unprotected sexual services. She contracted chlamydia and gonorrhea. When the complainant told him she wanted out of the sex trade, he slammed a car door against her. When she tried to call the police, he threw her phone away. She later recorded a phone call on an iPad where the offender told her he would kill her if she reported him to the police. There were other incidences of violence. Campbell J. stated at para. 53 regarding the range of sentence and the paramount sentencing principles:

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.

[20] Campbell J. sentenced the offender to a global sentence of five years, less credit for pre-sentence custody. He noted that the offender was remorseful and had engaged in rehabilitative efforts and that a five year sentence was the lowest that was appropriate in the circumstances.

[21] In R. v. Augustin and St. Armand, 2022 ONSC 5901, the two accused were tried by a jury. Augustin was convicted of human trafficking, procuring, advertising the sexual services of the victim, receiving a material benefit from human trafficking, and receiving a material benefit from procuring. St. Armand was found guilty of human trafficking, procuring, and advertising the sexual services of the victim. The accused trafficked the victim – who spoke little English – from Quebec to Ontario. They made the appointments, rented hotel rooms, and advertised her services. They took control of her movements and access to food, sleep, shelter, and showers. They took all of the victim’s earnings. Augustin was violent with her and at one point he showed her a gun. He had a criminal record that included fail to attend court, assault, possession of a prohibited weapon, and possession of a loaded prohibited or restricted firearm. St. Armand had no record. Chozik J. would have sentenced Augustin to a sentence of 9-10 years but sentenced him to 8 years based on his background, his remorse, and his insight. She sentenced St. Amand to 5 years in the penitentiary.

[22] In R. v. Jordan, an unreported decision of the Superior Court dated April 6, 2018, Coroza J. (as he then was) found the offender guilty of human trafficking, procuring, and intimidation of a justice system participant. He violently exploited his girlfriend for five years and controlled her. He pressured her to work even when she was pregnant. He later contacted her in violation of a bail order. He had a criminal record. Coroza J. sentenced him to a global sentence of 9 years: 6 years for human trafficking, 2 years consecutive for procuring, and 1 year consecutive for intimidation. The Court of Appeal upheld the sentence: R. v. Jordan, 2019 ONCA 607.

[23] In R. v. Leduc, 2019 ONSC 6794, the offender persuaded the victim to move from Montreal to Toronto to work as a stripper. He pressured her into sex work. The offender and the victim rented a residence in her name, and she incurred over $30,000 in debts. He took her earnings from sex work and stripping, which she estimated at over $130,000. He controlled her with threats of violence and actual violence. He slapped her, pulled her hair, and humiliated her. He had a criminal record including a conviction for criminal harassment against a different complainant. The sentencing judge, A. O’Marra J., found that his expression of remorse was not sincere. O’Marra J. sentenced the offender to a global sentence of 4.5 years, less pre-sentence custody, and a $45,000 fine in lieu of forfeiture.

[24] Mr. DeCock, relies on some cases that suggest a lower range of sentence.

[25] In R. v. A.A., [2012] O.J. No. 6256, the offender was convicted by a jury of two counts of human trafficking. The jury acquitted him of two counts of procuring. The offender took control of the victim, who had come to Toronto from Montreal to work as a stripper. The exploitation and coercion occurred over a very short time as the victim was able to escape. Wein J. relied on a decision of Hill J., R. v. Miller, [1997] O.J. No. 3911 setting out factors to be applied in human trafficking cases. Hill J. in that case noted that sentences with a range of four to five years are imposed on offenders who coerce the victim into the sex trade and controls her activities. Hill J. also noted that where there is no coercion and the offender simply relies on the earnings of the sex worker a sentence of 3-4 years is appropriate. Applying those principles, Wein J. found that the appropriate range falls between three and four years total. She sentenced the offender to three years less pre-sentence custody.

[26] In R. v. D.A., 2017 ONSC 3722, a jury convicted the offender of human trafficking and receiving a benefit from the commission of an offence. The jury acquitted the offender of robbing the victim with a handgun, unlawful confinement, sexual assault, and gang sexual assault. The victim and the offender had a business relationship. She would give him 50% of her earnings from the sex trade in exchange for protection. The offender and another male kept the victim’s earnings. They only gave her $5 per day for food. The exploitation lasted about three months. The offender did not have a criminal record. He also did not recruit the offender into the sex industry. Andre J. found that an appropriate sentence was one in the range of three to four years. He ultimately sentenced the offender to a global sentence of 3 ½ years.

[27] In R. v. R.S., 2016 ONSC 2939, [2016] O.J. No. 2411, the trial judge, Aitken J., convicted the offender of human trafficking, receipt of a material benefit from trafficking, withholding documents to facilitate trafficking, assault, uttering a death threat, and breach of an undertaking. The offender had a lengthy criminal record that included assaults and other offences against women. The trial judge found that he presented a serious threat to women. The offender directed the victim as to the types of sexual activities she should engage in, which strip clubs to dance at, and which city to locate – although it appears that the complainant had some input into these decisions. The offender took all of her money and her cell phone. The offender also controlled the victim through manipulation, violence, and the threat of violence, although he did not procure her or pressure her into sex work and did not confine her. The offender was sentenced to a global sentence of 5 years.

[28] In R. v. Salmon, 2019 ONSC 1574, the offender was convicted by a jury of human trafficking; receiving a material benefit from human trafficking; procuring/exercising control; and receiving a material benefit from sexual services for consideration. The jury acquitted him of assault, sexual assault, and uttering threats. The offender exercised a significant degree of coercion and control over the victim. The offender pressured her to engage in sex work when she was menstruating. He also pressured her into offering anal sex to customers. The offender exercised control through threats of violence and the victim accepted that he meant it. On the other hand, the offender did not coerce the victim into entering the sex trade, he did not engage in actual violence, and he did not engage in sexual violence against the victim. The offender had a lengthy criminal record. McCarthy J. sentenced him to a global sentence of 6 six years.

[29] In my respectful view, the range set out by Wein J. and adopted by Andre J. has been superseded by subsequent cases, especially Jordan, upholding a global 9-year sentence, and Lopez. I note that Wein J. stated at para. 39 of A.A.:

In assessing the range in this case, the Crown and defence both recommend that I rely on the list of factors as set out by the Alberta Court of Appeal in R. v. Tang… as referred to and augmented by the decision of Justice Hill in R. v. Miller… I expect that exploitation cases will eventually develop their own list of factors once the legislation on procuring and human exploitation matures…

6. Mitigating and Aggravating Factors

[30] There are many aggravating factors in this case. There are few mitigating ones.

[31] The aggravating factors are obvious. Mr. Gordon engaged in classic pimping behaviour. Mr. Gordon exercised control over G.L. using manipulation, threats of violence, and actual violence for a significant period of time. He took control of her earnings and used them to support his lifestyle. He respected no boundaries regarding her living arrangements or her person. He inflicted significant injuries to her.

[32] Another aggravating factor is that Mr. Gordon has a significant criminal record. In 2002 he was convicted as a young offender of assault and uttering threats for which he received probation. In 2007 he was convicted of possession of a scheduled substance for which he received a fine. In 2013 he was convicted of fail to comply with a recognizance for which he received a suspended sentence and probation in light of 7 days of pre-sentence custody. Also in 2013 he was also convicted of assault, for which he received a suspended sentence and probation in light of six months of pre-sentence custody. In January 2017 he was convicted of dangerous operation of a motor vehicle and flight while being pursued by a police officer. He received concurrent 6 month conditional sentences and a 12 month driving prohibition. In February 2017 he was convicted again of dangerous operation of a motor vehicle and received a suspended sentence and probation for 12 months.

[33] Mr. Gordon received 13 institutional “misconducts” during his time in custody. Crown counsel provided a “misconduct summary” from the Toronto East Detention Centre covering the period from February 5, 2020 to October 28, 2022. The misconducts include four misconducts for having contraband in his possession or attempting to take contraband into or out of the institution; four misconducts for threatening or committing an assault on another person; and five misconducts for wilfully obeying an order of an officer.

[34] Pursuant to s. 60(1)(e) of the Ministry of Correctional Services Act, the Lieutenant Governor in Council may make regulations “respecting the treatment, training, employment, discipline, control, grievances and privileges of inmates”. Ontario Regulation 778 is the general regulation for the Ministry of Correctional Services. Sections 28.12 to 33.1 deal with inmate misconducts. The regulation prescribes institutional offences, and a code of procedure for dealing with misconducts. The superintendent or the superintendent’s delegate (although I will refer only to “the superintendent”) of an institution is required to provide to each inmate the rules and regulations of the institution and a list of disciplinary measures for misconduct. Sections 29(a), (b), and (f) deal respectively with disobeying a lawful order; assaults or threats of assault; and contraband. A manager can decide whether to deal with a misconduct by alternative measures or refer the misconduct to the superintendent. The code of procedure is set out in s. 31 of the regulation. Briefly, before the superintendent decides whether the misconduct occurred, the superintendent must ensure that the inmate is notified of the allegation. The inmate must be given the opportunity to discuss the allegation with the superintendent. The inmate is entitled to present arguments and dispute the allegation, as well as question the person making the allegation and any other witnesses. The superintendent may permit any person to assist the inmate. The superintendent is required to inform the inmate of the disciplinary decision. The superintendent is also required to provide a written record to the inmate with the superintendent’s decision, the reasons for the decision, and the disciplinary measures imposed. The Minister may review the decision upon written request from the inmate.

[35] In his affidavit, Mr. Gordon denied that he had ever received notice in writing of an institutional misconduct. Mr. DeCock informed me at the sentencing hearing that Mr. Gordon intends to administratively appeal these findings. By appeal, I assume he means asking the Minister to review the various institutional misconducts.

[36] In my view, a sentencing judge must be very careful in considering institutional misconducts. Institutional misconducts should not be treated as aggravating factors in the same way that a criminal record is treated as an aggravating factor. These are not crimes (unless charges are also laid, which sometimes happens). They are also not proven beyond a reasonable doubt. As well, institutional misconducts should generally not be used to reduce any mitigation arising from harsh conditions of custody. That could be unfair. Inmates are often under psychological stress because of difficult conditions. Those stresses can result in tempers flaring, outbursts, anger, or refusals to follow the lawful orders of correctional officers. Obviously individual situations will differ, but in my respectful view, a judge considering institutional misconducts by an inmate should bear that in mind.

[37] Institutional misconducts may say something about a person’s potential for rehabilitation. In this case, Mr. Gordon has engaged in what appears to be a pattern of institutional misconduct. The misconducts include violence and possession of contraband. He has pleaded guilty to crimes involving violence and the manipulation of another person for his own financial benefit. He has criminal convictions for breach of recognizance and assault. Those convictions are dated, but in my view all these things are related. I give the misconducts limited weight because they can be driven by many factors. As well, I am mindful that they have not been proven beyond a reasonable doubt and that Mr. Gordon disputes them. But these misconduct findings contribute to the overall picture – and the picture is of a person without a great deal of insight into his own behaviour. Indeed, when I consider the institutional misconducts along with his criminal record and his behaviour in this case, the word “ungovernable” comes to mind.

[38] As a result, I think that the misconducts, although of limited weight, impact Mr. Gordon’s prospects for rehabilitation in the following way. Mr. Gordon claims to have worked as a barber. He says that he worked at salons from 2012 to 2018, and as a “mobile barber” before going into custody. Given that Mr. Gordon was driving a Jeep Grand Cherokee at the time of the offence and a Mercedes Benz at the time of arrest, indications of a financially remunerative lifestyle, I find it highly unlikely that he supported himself only as a barber. I think it is more likely than not that he has supported himself as a pimp over the years. Given the presence of the oxycodone tablets and cash on arrest, I think it is also possible that he has had a sideline as a drug dealer. While I cannot find that his lifestyle and profession as a pimp (and possibly a drug dealer) have been proven beyond a reasonable doubt as aggravating factors, I do have doubts about his claim of legitimate employment as a barber. It is backed up by no documents, such as tax returns or receipts for having worked in a salon. It certainly would not have funded a lifestyle that included driving expensive cars. I do not accept his claim of employment as a mitigating factor. When I combine that with the criminal record and the record of institutional misconducts, I find that Mr. Gordon’s prospects for rehabilitation are somewhat limited. I am aware that Mr. Gordon has a job offer and a letter of support from Amadeusz, a social services agency, but I give them only little weight in light of the rest of the evidence.

[39] The main mitigating factor here is the plea of guilty. Mr. Gordon saved the administration of justice some three weeks of pre-trial motions and trial time. He also spared the complainant from having to testify at trial, although I note that she did testify at the preliminary inquiry. I agree with Mr. DeCock that there were many triable issues in this case, which gives the plea real value.

[40] A mitigating factor that also warrants consideration is the harsh conditions of custody endured by Mr. Gordon. Mr. Gordon has been in custody since February 10, 2020, or almost exactly three years. He was therefore in custody during the entirety of the Covid-19 pandemic. He was vaccinated in 2021. He did, however, contract Covid-19 while incarcerated at the Toronto East Detention Centre. Mr. Gordon also experienced numerous lockdowns while at both the Toronto East Detention Centre and the Toronto South Detention Centre. During lockdowns at the Toronto East, he had no running water in his cell, both for washing and relieving himself. Obviously this is an awful side effect of the lockdowns, although Mr. Gordon does not indicate whether this happened only once or was a recurring problem, although I suspect it has happened on more than one occasion. He also experienced double-bunking from time-to-time, and while at Toronto East Detention Centre he has experienced triple bunking. When that happens, one of the inmates must sleep on the floor on a flimsy mattress. The “substandard conditions TDSC and TEDC are notorious”: R. v. Mitsakis, 2022 ONSC 5390, [2022] O.J. No. 4224.

[41] I agree with the comments of MacDonnell J. set out in R. v. Suppiah, 2021 ONSC 3871, [2021] O.J. No. 3047 at paras. 25-26:

In appropriate circumstances, particularly harsh presentence incarceration conditions can be relevant in the determination of an appropriate sentence: see R. v. Duncan, 2016 ONCA 754, at paragraph 6. The approach to be taken in this regard was clarified recently by Doherty J.A. in R. v. Marshall, 2021 ONCA 344:

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.

As I read Justice Doherty's reasons in Marshall, the practice of assigning a credit of a specific number of days or months to punitive conditions of pretrial custody is not to be encouraged because it may obscure the fact that the harshness of pretrial custody is only one of many factors that go into the determination of an appropriate sentence: see paragraph 53.

[42] I also agree with Schreck J.’s comment in Mitsakis at para. 34:

… while everyone incarcerated at the TSDC and the TEDC suffers improper treatment, the extent to which they do so varies. Absent some evidence, I am unable to make specific findings about the conditions of Mr. Mitsakis's presentence incarceration. As a result, while he is entitled to some mitigation on this basis, the extent of it is limited.

[43] In this case, I find that Mr. Gordon has tied some of his psychological issues to the effects of harsh conditions, such as lockdowns and triple bunking. I agree that the harsh conditions of custody are an important mitigating factor.

7. Principles of Sentencing

[44] In my view, the principles of sentencing in human trafficking and exploitation cases were succinctly dealt with my colleague Woollcombe J. in R. v. MacIntosh, 2022 ONSC 6437 at paras. 36-38:

Section 718, 718.1 and 718.3 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.

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:

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…

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...

[45] Other relevant principles set out in the Criminal Code include: a sentence should be increased or decreased to account for aggravating and mitigating factors; sentences should be similar to those imposed for similarly situated offenders and offences; global sentences should not be unduly harsh; and sanctions other than prison should be considered.

[46] Mr. DeCock did not specifically address the fact that Mr. Gordon is Black. Systemic and background factors, including factors attributable to anti-Black racism, may be relevant where the offender is Black: R. v. Morris, 2021 ONCA 680 at paras. 91-93. There need not be a causal connection between the offence and the existence of anti-Black racism. There must, however, be some connection as the Court of Appeal in Morris explained at para. 97:

There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue. Racism may have impacted on the offender in a way that bears on the offender's moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender's colour. Everyone agrees there can be no such discount.

[47] In my view, denunciation and deterrence are the primary sentencing objectives where women are trafficking for the purposes of exploitation as workers in the sex trade. This case involves other aspects of “pimping” that must also be denounced and deterred, including pointing a firearm and assault causing bodily harm – actions that are used by a human trafficker seeking control through violence and intimidation.

8. Ancillary Orders

[48] There will be a s. 109 order for life, as well as a DNA order. Mr. Gordon is prohibited from contacting G.L. pursuant to s. 741.32 of the Criminal Code.

9. Sentence Imposed

[49] Mr. Gordon engaged in classic violent pimping behaviour. He manipulated the victim, G.L., into a romantic relationship to exploit her financially. He used violence and threats of violence to keep her in line.

[50] Mr. Gordon has not argued that there is a connection between systemic factors and his moral blameworthiness. He has, however, pointed out that he does come from a disadvantaged background where he was raised by a single mother and had little contact with his father. He rebelled in high school and did not complete his secondary school education. I acknowledge the systemic factors but see no connection to this offence.

[51] I agree with the range of sentence set out by Campbell J. in Lopez and confirmed in other cases. I also agree with Campbell J.’s summary of the factors that a sentencing judge should consider. He stated at para. 53 of Lopez:

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.

[52] Applying the Lopez factors in this case:

• The degree of coercion or control over the victim: Mr. Gordon exercised a great deal of coercion and control over G.L. This is a very aggravating factor.

• The amount of money received by the pimp and the amount kept by the victim: Mr. Gordon eventually kept all G.L.’s earnings. I find that this factor is also very aggravating.

• The age of the victim: G.L. was 20 years old.

• Any special vulnerability of the victim: G.L. had been robbed and was feeling vulnerable and Mr. Gordon took advantage of that.

• The working conditions in which the victim operated including physical surroundings and safety concerns: I do not have any information about G.L.’s physical surroundings and safety concerns while working. This is a neutral factor.

• The degree of planning and sophistication: Mr. Gordon’s operation did not appear particularly sophisticated. This is a neutral factor.

• The size of the pimp's operations, including the numbers of customers the victim was expected to service: Mr. Gordon appeared to work with other sex workers, and certainly the presence of expensive cars suggests that he did. As well, it is unclear from the evidence how many clients G.L. was expected to service. This is a neutral factor.

• The duration of the exploitative conduct: the exploitation lasted for three months.

• The degree of violence: A significant amount of violence and implied violence was employed by Mr. Gordon. He has been convicted of assault causing bodily harm. He also pointed a firearm, a very significant act of implied violence and intimidation. I will, of course, sentence Mr. Gordon separately on the pointing firearm and assault bodily harm counts (rather than both sentencing and treating them as aggravating, which would be an error of law) but the implied violence and other, non-charged assaults are aggravating, and it all goes into the consideration of an appropriate global sentence.

• The extent to which inducements such as drugs or alcohol were employed by the pimp: There is no evidence Mr. Gordon used drugs or alcohol to control G.L.

• The effect on the victim of the pimp's exploitation: The effect on the victim has been significant. Although the period of exploitation was not long, it was undoubtedly long to G.L. It is clear that G.L. has been utterly traumatized.

• The extent to which the pimp demanded or compelled sexual favours for himself: There is no evidence that Mr. Gordon demanded sexual favours from G.L. He did, however, begin a relationship with her that was based on the false and manipulative premise that he cared for her as a romantic partner and that they were an exclusive couple.

• The age of the customers: I do not have any information about this issue. It is a neutral factor.

• Any steps taken by the pimp to avoid detection by the authorities: Mr. Gordon did take steps after the last assault on G.L. He fled the scene and abandoned the Jeep.

• Any attempts to prevent the victim from leaving: Mr. Gordon told G.L. that she must pay $50,000 to free herself from him. That is very seriously aggravating. He also assaulted her and unlawfully confined her in the Jeep.

[53] I agree with Ms. Gharabaway that a sentence of 8-10 years is well within the range. I would have sentenced Mr. Gordon to a global sentence of 9 years before accounting for mitigating factors. That is because Mr. Gordon is an offender at the high end of the range considering the use of violence, the degree of control, the pointing of the firearm, and the criminal record. However, I take into account the important mitigating factor of the guilty plea, recognizing that there were triable issues in the case. I also take into account the significant mitigating factor of three years in custody during the Covid-19 pandemic and a significant number of lockdowns.

[54] When I balance the mitigating and aggravating factors, and apply the principles of sentencing, I find that the appropriate global sentence is 7 years.

[55] As of today, Mr. Gordon will have spent three years or 36 months in custody. Pursuant to s. 718(3.1) he is entitled to credit at the ratio of 1.5:1, meaning that he will have spent the equivalent of 4 ½ years or 54 months. In my view, therefore, he must serve another 2 ½ years.

[56] The sentences are apportioned as follows:

• Count 14: Trafficking a person contrary to s. 279.01(1) of the Criminal Code – 6 years with credit for 4 ½ years, 18 months left to serve.

• Count 10: Receiving a financial benefit knowing it was obtained from trafficking a person for the purpose of facilitating their exploitation, contrary to s. 279.02(1) of the Criminal Code – 1 year, consecutive to Count 14.

• Count 1: Pointing a firearm contrary to s. 87(1) of the Criminal Code – 1 year, consecutive to Count 14 and concurrent to Count 10.

• Count 8: Unlawful confinement contrary to s. 279(2) of the Criminal Code – 1 year, consecutive to Count 14 and concurrent to Count 10 and Count 1.

• Count 13: Assault causing bodily harm contrary to s. 267(b) of the Criminal Code – 1 year, consecutive to Count 14 and concurrent to Counts 10, 1 and 8.

R.F. Goldstein J.

Released: February 14, 2023

COURT FILE NO.: CR-21-10000283-0000

DATE: 20230214

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

DWAYNE GORDON

REASONS FOR SENTENCE

R.F. Goldstein J.

R. v. Gordon, 2023 ONSC 1036

Case Summary