Court File and Parties
Court File No.: CR-22-30000163-0000 Date: 2023-06-07 Superior Court of Justice – Ontario
Between: His Majesty the King, Applicant And: Dylan Dolman-Kencher, Accused
Counsel: Susan Orlando, for the Crown John M. Rosen, for Dylan Dolman-Kencher
Heard: March 28 & May 12, 2023
Reasons on Sentence
Garton J.
1The offender, Dylan Dolman-Kencher, age 22, has pleaded guilty to exploiting A.O., a person under the age of 18 years, contrary to s. 279.011(1) of the Criminal Code. He has also pleaded guilty to failing to comply with a term of probation, namely, not to engage in any activity related to the sex trade, contrary to s. 733.1(1) of the Code.
Background and Circumstances of the Offences
2Based on the Agreed Statement of Facts and submissions of counsel, the background and circumstances of the offences are as follows.
3Mr. Dolman-Kencher (Dylan) was born on August 26, 2000, and raised in Toronto. His childhood can only be described as tumultuous. In 2006, at the age of six, he was taken into care by the Catholic Children’s Aid Society (CCAS). Thereafter, he spent various periods of time in foster homes, with brief interim returns to one or other of his parents before returning to care.
4On April 16, 2016, Dylan was made a Crown ward. Upon reaching 18 years of age, he was discharged as a Crown ward and sent to several facilities to assist him in integrating into society.
5In the fall of 2018, while living at a youth facility, Dylan met N.L. through another resident of the facility. N.L., who was 17 years old, had some mental health issues and was prone to making poor choices that put her safety at risk. She and Dylan commenced an intimate relationship.
6On April 9, 2019, the police arrested Dylan and charged him with human trafficking and various sexual service offences in relation to N.L. The offence date was sometime between September 1 and 7, 2018. Dylan had turned 18 just a few days earlier.
7On June 12, 2020, Dylan pleaded guilty to (1) possession of child pornography, namely photographs of N.L, contrary to s. 163.1(4) of the Code; and (2) communicating with a person for the purpose of obtaining for consideration the sexual services of a person, contrary to s. 286.1(1) of the Code. He received a sentence of six months, less credit for three months as a result of having spent five days in pre-trial custody and the entire time that he was on bail under house arrest at his father’s home. He served the remaining 90 days of the sentence on weekends on an intermittent basis. He was also placed on probation for two years.
8The transcript of the sentencing proceedings on June 12, 2020, indicates that the photographs of N.L. on Dylan’s phone were photographs that N.L. had taken of herself and given to Dylan. N.L. told the Crown Attorney handling the case that it was her idea to turn to prostitution because she needed the money, and that Dylan initially tried to talk her out of it. It was only after she told him that she was going ahead anyway that Dylan agreed to help her. N.L. never actually serviced any clients.
9The Crown also advised the sentencing judge that N.L. spoke compellingly about Dylan’s background and his difficulties. N.L. told the Crown on several occasions that it was a very difficult time for both of them and that they were both struggling. N.L.’s mother, who knew Dylan quite well, as he and N.L. had stayed at the family residence during the summer of 2018, also had many good things to say about Dylan.
The Current Offences
10The victim in the present case, A.O., was born and raised in Oakville. She met Dylan on social media in 2018 when she was in Grade 9. They did not have any personal contact until February 2020, when Dylan contacted A.O. on social media. At that time, A.O. was 16 years old and living with her parents.
11During the ensuing months, A.O. and Dylan continued to correspond on social media. As a result of that contact, A.O. came to believe that she could trust Dylan and that he would be there for her. She told him about herself and her life. She was using cocaine quite heavily at that time, and also having problems with her family. In March 2020, she told Dylan that she was making money through the “sugardaddy” website by sending photos of herself to clients in exchange for payment.
12In the summer of 2020, A.O. left her parent’s home and went to live with her boyfriend, who was living at Fresh Start for Youth Services. This was the same youth facility where Dylan was residing. As a result, A.O. and Dylan became better acquainted. A.O. told Dylan that she had nowhere else to live because she could not go back to her parents’ home. At some point, she moved to Collingwood with her boyfriend, but maintained contact with Dylan through social media.
13In early September 2020, A.O. returned to Toronto to be with her boyfriend. When she and her boyfriend ended their relationship, A.O. began an intimate relationship with Dylan. Initially, they continued to live at the youth facility, but later moved to a basement apartment in the Leslie/York Mills area of Toronto. According to A.O., when they moved in together, Dylan started providing her with cocaine, telling her that he knew she was going through a lot and that he wanted her to have an okay time while they were living together.
14In September 2020, Dylan was still on probation as a result of his convictions on June 12, 2020. One of the terms of his probation was that he must not engage in any activity related to the sex trade. He was also registered under the Sex Offender Information Registration Act (SOIRA).
15When A.O. and Dylan started their relationship, A.O. told him that she was 17 years old. Dylan later learned that she was 16 after viewing a Halton Regional Police Service - Missing Person media release. He was also aware that A.O. was earning money from her on-line social media account by sending nude or explicit photographs of herself to purchasers.
16Shortly after they commenced their relationship, Dylan told A.O. that he was in debt in excess of $1000 and needed to repay the money or he would be killed. Dylan asked A.O. for her help. He asked her to go back to working the sugardaddy website. A.O. told Dylan that she could not make the money fast enough for his needs. Dylan asked her to provide sexual services to her customers in person. According to A.O., Dylan told her that he would do anything for her and asked her to “just do this for him” because his life was on the line. He told her that he did not want to lose her, he wanted to be with her, and that this was the first and last time she would have to do this. Not wanting to lose Dylan and not wanting him to die, A.O. agreed.
17Dylan made it clear to A.O. that she should engage in sexual intercourse with the clients and that she needed to use protection. He and A.O. would scroll the website together and Dylan would suggest who A.O. should contact and how many clients she should service. Dylan did not post advertisements on A.O.’s behalf, and he did not communicate with any of her clients.
18The first time that A.O. provided sexual services for money, she messaged one of her former sugardaddy clients, who picked her up and brought her back to his place. She spent an hour with him, during which time she did lines of cocaine and had sexual intercourse. She was paid approximately $300 to $500. Afterwards, she met with Dylan, who immediately asked her, “How much did you get?” He hinted that this was nowhere near enough, and that she had to get more money for him.
19A.O. continued to meet clients and provide sexual services for money for about six weeks. During that time, she was sexually assaulted by a client in Hamilton. When she told Dylan about it, he told her that he was sorry, and that he was there for her.
20A few days later, Dylan asked A.O. to see a particular client who had previously paid her $4000. She told him that she could not do it because her body would not let her. When he asked her what she meant, she simply repeated that she could not do it. Dylan replied that he was not asking her to see “a [whole] bunch of people,” and to just call the guy who had given her a lot of money before. A.O. did not contact the client, but told Dylan that she had texted him and that he was no longer in Ontario. Dylan responded, “Oh my God, what are you gonna do?”
21After the sexual assault by the client in Hamilton, A.O. continued to provide sexual services to clients but found it difficult to do so. Sometimes when she met a client, she was unable to follow through and would spend the first half hour crying and shaking while in the bathroom.
22According to A.O., there was one occasion when she spent the first 30 minutes of what was expected to be a one-hour appointment in the washroom. When the client came to the door and asked if she was okay, A.O. exited and went to the living room. She stayed with the client for two or three hours, not doing anything, just shaking and crying. Throughout this time, Dylan was texting her, asking her why she was late, what she was doing, whether she got the money, and how much she got. A.O. did not respond to these messages. Dylan continued to message her, asking her: “Where are you?”; “You can’t be doing this to me right now”; “I can’t rely on you for anything”; “I hate you”; and “When you come over, don’t tell me you love me.”
23At the end of her time with the client, and after returning to the Airbnb where she and Dylan were staying, Dylan asked her why she had not answered his messages. He wanted to know whether she received money and, if so, how much. According to A.O., she had “zoned” out. This was not the first time that she was unable to provide services and returned without money. Dylan was upset with her, raised his voice as he looked her straight in the eyes and asked, “Did you end up just getting high with him and you didn’t get money?” He then calmed down and went to sleep.
24After they left the Airbnb, A.O. continued to see clients. According to A.O., Dylan convinced her to continue working by telling her various things, such as: “I can’t rely on you for anything.”; “You say you’ll always be there for me.”; “I ask you for something so simple – just getting me the money – if I can’t rely on you for getting me money, what can I rely on you for?”
25On another occasion, when A.O. stayed overtime with a client, Dylan texted her, “Where are you?” “What are you doing?”; and “What did he say?” A.O. texted him to tell him that she could not do “it,” to which he responded, “Are you fucking kidding me. I hate you. Just let your mind go. When you come here, don’t say you love me.” Afterwards, when she returned to him without any money, he was visibly angry and yelled at her, telling her, “We need to get the money. I’m so fucked. I need the money. What are you gonna do?” Later that night, he calmed down and mentioned that he had a gun in a locked glove box.
26A.O. alleges, but Dylan denies, that he showed her a gun. She told the police that he never threatened to shoot her and that she did not think that he was going to kill her. However, she thought that something could happen to her. She did not know if the gun was real, but believed that it was. During their investigation, the police did not find a gun accessible to or in the possession of Dylan.
27As stated earlier, A.O. provided sexual services for about six weeks, from mid-September to October 31, 2020, when she left Dylan and began cohabiting with a client, S.A., who was in his forties and offered to help her out of her situation. A.O. later made allegations against S.A., who, as a result, was arrested on April 30, 2021, and charged with obtaining sexual services from a person under 18 years of age, sexual exploitation, voyeurism, making child pornography, possession of child pornography, and assault. Dylan never met S.A. and did not know his name. However, during his police interview, he stated that after A.O. left to live with S.A, he started getting text messages from an unknown number in which demands were made for money as “compensation.” It is apparent from some of the text messages retrieved by the police that Dylan, who did not have the money, was frightened of the individual sending them. He responded with the text message, “Holy, please don’t hurt me.” When he asked to put off the meeting where he was supposed to pay the money, the response he received was, “Hurt you? Son, we only want to talk. You come for a ride and meet me here.” Dylan never met S.A. and never paid him any money. There is no allegation that A.O. supported S.A.’s demands for money from Dylan.
The Police Investigation
28A.O. estimates that she saw approximately 15 clients and earned approximately $6000, which she turned over to Dylan. Most of the money that she received was in cash. Three e-transfers to her were accepted by her and then e-transferred to Dylan. One e-transfer of $800 to $900 was sent directly to Dylan and accepted by him.
29On February 25, 2021, A.O. contacted the Halton Regional Police Service – Human Trafficking Enforcement Team, and advised them that she wished to provide information about her involvement in the sex trade. She attended at the HRPS Division 20 in Oakville and provided a sworn statement to investigators.
30On February 26, 2021, HRPS turned the file over to the Toronto Police Service – Human Trafficking Enforcement Team for further investigation because some of A.O.’s complaints related to activities that occurred with Dylan in Toronto.
31On April 7, 2021, TPS officers arrested Dylan and charged him with various offences arising out of A.O.’s complaint. Following consultation with counsel, Dylan provided an inculpatory statement.
32Dylan has been in continuous custody on these charges since April 7, 2021, or for two years and two months.
Victim Impact Information
A.O.’s Victim Impact Statement
33In her Victim Impact Statement, A.O. states that she continues to feel the repercussions from this offence. She feels angry with herself for having been so easily manipulated, and now doubts her own judgment in terms of keeping herself safe. She states that she has become cynical, pessimistic, and anti-social, and has a distorted image of the world, believing that people are incapable of having good intentions and only act out of selfishness. She does not like the person whom she has become and feels that this offence has robbed her of the ability to be positive for her future. She takes little pleasure in activities that she once enjoyed.
34A.O. is currently living in a co-ed residence at a college. She finds it difficult to be around males and does not socialize due to the anxiety that she feels when interacting with people. She feels that she has been cheated out of a positive college experience.
35A.O. states that she was placed in physical danger during the course of this offence and, as a result, suffered a cracked vertebrae. She experiences shooting pain for periods of time and discomfort in sleeping. She also suffers from “endless headaches.” She is receiving physiotherapy and sees a therapist on a weekly basis.
36A.O. expressed fear that Dylan’s friends may contact her and retaliate against her for having reported him to the police. However, there is no evidence of any such incidents having occurred.
K.P.’s Victim Impact Statement
37A.O.’s mother, K.P., states in her Victim Impact Statement that the offences against her daughter have had a profound impact on her. She has difficulty sleeping and feels deep despair at having failed to keep her daughter safe. K.P. is seeing a therapist for depression. She has difficulty socializing and is often close to tears. She has not disclosed the details of the offence to her elderly parents for fear of distressing them, but has difficulty keeping up the appearance that “all is fine.”
38K.P. states that the stress that she feels has taken a toll on her physically. She often wakes up with intense pain in her jaw from having clenched her teeth during the night. She has always suffered from migraine headaches, but now has them on a weekly basis.
39K.P. states that as a result of Dylan having pressed A.O. for money, A.O., in turn, pressed her parents for money. In terms of ongoing expenses, K.P. has been paying for physiotherapy and psychological therapy. She also upgraded the security alarm system at their home. She is aware that Dylan has been in custody since his arrest over two years ago, but expressed fear of being contacted by him, as he knows where the family lives.
40There is no evidence of Dylan or anyone on his behalf attempting to contact A.O. or her family members since his arrest.
Circumstances of Mr. Dolman-Kencher
41Dylan, who is now 22 years old, had just turned 20 at the time of these offences.
42As stated earlier, Dylan had a tumultuous upbringing. The CCAS’s involvement with the Dolman-Kencher family began in 2000, when he was just a baby and his oldest brother, William, was a child. Dylan was later apprehended and spent many months in care. He was placed in many different foster homes over the years, with interim periods when he was returned to the care of either his mother, who was an alcoholic, or his father, who suffered from a gambling addiction and other related problems. The parents separated and have been divorced for many years. This sad family history is documented in the CCAS’s file, marked as Exhibit 6, which contains various reports over the years, psychological assessments from the Centre of Addiction and Mental Health (CAMH), and some of the family court proceedings.
43The CAMH reports indicate that Dylan was diagnosed with Attention Deficit Hyperactivity Disorder – Combined Type, and met the criteria for “Borderline Intellectual Functioning (slow learner).” As a result, he struggled in school and felt frustrated and unhappy. His inability to cope sometimes led him to have outbursts of anger, but he was never physically violent with anyone. It is suspected that Dylan suffers from fetal alcohol syndrome.
44In February 2009, Justice H.P. Brownstone heard a motion brought by Dylan’s father to have Dylan, who was eight years old, placed with him. At the same time, Dylan’s mother sought to have Dylan, his younger sister, Chloe, who was 3 years old, and his half-brother, Bradley, who was 18 months old, returned to her. Bradley’s father, Michael Keenan, sought to have Bradley placed with him. In his reasons on these motions, Justice Brownstone, at para. 6, described the case as one of the most difficult cases that he had ever encountered in his 14 years on the Bench because of its complexity and the fact that there were no readily apparent solutions. He found that “it is quite possible that Dylan and Chloe may never heal from the pain and anguish they have suffered.” At para. 33 of his reasons, he went on to state:
It is indisputable, from even a cursory review of the above chronology, that Dylan has experienced an intolerable level of disruption and chaos in his short life so far. The psychological assessment is heartbreaking. Dylan is a sad, anxious and angry child who feels, with much justification, completely betrayed by the adults in his life and indeed by life itself. His reality has been so unconscionably dismal, that he has invented a fantasy superhuman persona for himself to help him cope. Dr. Valance recommends a permanent and stable placement for Dylan as soon as possible so that he can know who his attachment figure is going to be, in the hopes that his anxiety will be reduced and he can feel safe and secure. He desperately needs therapy.
45Justice Brownstone described Dylan’s relationship with his mother as problematic, and noted that she made very inappropriate and emotionally harmful comments to Dylan during an access visit. As it turned out, the “permanent and stable placement” that Justice Brownstone recommended for Dylan never materialized.
46During the period between August 2007 and August 2008, when Dylan was seven and eight years old and living with his mother, he was assaulted and forcibly confined by his step-father, Michael Keenan. The police synopsis of those offences indicates that on one occasion, when Dylan and Chloe were playing outside, Dylan pushed her into the children’s pool. Mr. Keenan became very angry with Dylan and ordered him into the apartment. He then took a belt out of a drawer and struck Dylan’s buttocks with it several times. He told Dylan that he would hit him until he was red, purple and white, and that he would not be able to sit down for a week. As a result of this assault, Dylan was bleeding and in pain. After noticing the bleeding, his mother gave him a shower to clean the area. Dylan recalled being hit with a belt by Mr. Keenan on other occasions when he broke things that did not belong to him or used bad language.
47Other forms of punishment included Michael Keenan’s use of bungee cords to lock Dylan and Chloe in their bedrooms. The children would try to escape but were unable to do so. On one occasion, Michael Keenan used bungee cords to tie Dylan’s hands and feet to the corners of his bed, which he described as making him appear as though he were flying and caused him considerable pain. After he was eventually untied, his mother applied ice to his wrists and ankles.
48Michael Keenan was ultimately convicted in the Superior Court of Justice of assaulting and forcibly confining Dylan, who testified at the trial. Dylan’s mother also testified, but as a defence witness and in support of Mr. Keenan.
49The Crown Attorney who successfully prosecuted the case wrote an unsolicited letter to defence counsel, Mr. Rosen, upon learning of the charges that Dylan is currently facing. In his letter, he states that the case against Mr. Keenan has stayed with him through all these years and always will. He described Dylan at that time as a sweet eight-year-old boy who had spent his life surrounded by adults who treated him terribly, including both of his biological parents. He added that “we can all only imagine where we would be if we had had Dylan’s childhood.” He also stated that six or seven years ago, he arranged for a meeting at the courthouse with Dylan, his counsellor, and the officer-in-charge of the case. It appeared to him at that time that Dylan was “doing alright,” but obviously things “took a turn” after that.
50After being bounced between various foster homes and one or other of his parents’ homes, Dylan was finally made a Crown Ward at the age of 16. His parents did not show up for the hearing. Two years later, when he turned 18 and was discharged as a ward, he had no place to go. He could not live with either of his parents, and consequently ended up at the youth facility where he met N.L. Dylan lived at the same facility while serving the 90-day intermittent sentence imposed on him on July 20, 2020.
51Both Dylan’s mother and father were advised by Mr. Rosen of this sentencing hearing. His father indicated that he “wasn’t up to” attending in court. Dylan’s mother told Mr. Rosen that she would be here, but she never showed up. Hence, Dylan is before the court with no parental support.
The Position of the Parties
52Pursuant to s. 279.011(1)(b) of the Code, the mandatory minimum sentence for trafficking a person under the age of 18 years is five years’ imprisonment.
53Ms. Orlando, on behalf of the Crown, seeks a sentence of six years less credit for time spent in pre-trial custody calculated on the basis of a ratio of 1.5:1. She also seeks a sentence of one year concurrent on the charge of breach of probation. In addition, she asks that the following ancillary orders be imposed: (i) a DNA order; (ii) an order to comply with SOIRA for 20 years; (iii) a s. 109 weapons prohibition order for life; and (iv) a s. 743.21 non-communication order in respect to A.O. and members of her family.
54Ms. Orlando acknowledges that Dylan’s guilty plea is a mitigating factor. However, she submits that the aggravating factors are such that the sentencing principles of deterrence and denunciation must be paramount. The fact that the offence involved the abuse of a person under the age of 18 is a statutory aggravating factor. By legislating a mandatory minimum sentence of five years for trafficking a person under the age of 18, Parliament has made it clear that sex offences against children must be punished more severely.
55Ms. Orlando referred to R. v. Friesen, 2020 SCC 9, [2020] S.C.R. 424, where the Court held that protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code. Courts must recognize and give effect to (i) the inherent wrongfulness of these offences; (ii) the potential harm to children that flows from these offences; and (iii) the actual harm that children suffer as a result of these offences. The fact that the victim is a child increases the offender’s degree of responsibility. At para. 153, the Court stated that in no case should the victim’s participation be considered as a mitigating factor.
56Ms. Orlando also referred to the following sentencing decisions in support of her position that a six-year sentence is warranted in this case: R. v. Senoubari Abedini, 2020 ONCA 520; R. v. Safieh, 2019 ONSC 287; R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145; R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161; R. v. Wilson, 2022 ONCA 857; R. v. Alexis-McLymont, Elgin and Herd, 2018 ONSC 1152; and R. v. Delchev, 2014 ONCA 448, 323 O.A.C. 19.
57Mr. Rosen, on behalf of Dylan, seeks a sentence of five years for the human trafficking offence, less credit for the two years and two months that he has served in pre-trial custody, calculated on the basis of a 1.5:1 ratio. Mr. Rosen submits that six months concurrent for the charge of breach of probation would be fit and proper, taking into account that Dylan has no prior record for breaching court orders.
58Mr. Rosen takes no issue with the Crown’s review of the caselaw in regard to the sentences imposed for human trafficking under s. 279.011(1)(b) of the Code. However, he submits that a five-year sentence would adequately address the principles of denunciation and deterrence in this case, while also taking into account Dylan’s personal circumstances and potential rehabilitation. A five-year sentence would also take into account, as a mitigating factor, certain punitive pre-trial incarceration conditions that Dylan has experienced at the Toronto East Detention Centre (TEDC), including triple bunking, lockdowns, COVID-19 protocols, and the fact that he contracted COVID-19 while incarcerated. As a result of the nature of his charges, Dylan was assaulted during his first month in custody, but fortunately did not sustain any injuries. Following the assault, he was transferred to the Protective Custody Unit, where he has remained ever since. Dylan has received verbal threats due to the nature of the charges. During his time at the TEDC, there have been no incidents of misconduct on his part.
59After deducting credit for pre-trial custody from a five-year sentence, the sentence imposed would be a reformatory term. Mr. Rosen indicated that he would ask the court to recommend that the sentence be served at the Ontario Correctional Institute (OCI), where Dylan could receive the treatment and counselling that he requires, as well as assistance in furthering his education. Mr. Rosen expressed concern that given his young age, personal issues, and the nature of the offence for which he has been convicted, Dylan would be targeted by other inmates in a penitentiary setting.
60Mr. Rosen takes no issue with the imposition of the ancillary orders requested by the Crown.
Principles of Sentencing
61The objectives of sentencing are set out in s. 718 of the Criminal Code. They are: the denunciation of unlawful conduct and the harm done to victims or the community, deterrence, both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done to victims or the community.
62Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender.
63Section 718.01 states that when a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
64Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors, including evidence that the offender, in committing the offence, abused a person under the age of 18 years (s. 718.2(a)(ii.1)), and evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation (s.718.2(a)(iii.1)).
65Section 718.2 requires that a sentence be similar to those imposed on similar offenders in similar circumstances.
66In every case, the determination of a fit sentence is a fact-specific exercise. As stated by the Court in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 15, “The appropriateness of a sentence is a function of the purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code as applied to the facts that led to the conviction.” The facts of the offence, the circumstances of the accused, and his or her moral blameworthiness are all considerations.
Sentencing in Human Trafficking Offences
67Section 718.01 of the Code gives priority to denunciation and deterrence over other sentencing objectives where the offence involves the abuse of children. As stated by the Court in T.J., the provisions of s. 718.01 not only mean that denunciation and deterrence must be the primary objectives of the sentence, but that “it is no longer open to a sentencing judge to elevate other sentencing objectives, for example rehabilitation, to equivalent or greater priority than denunciation and deterrence in determining a proportionate sentence. These other objectives may be given significant weight but not priority or equivalency.” The Court cited the decisions in R. v. Lis, 2020 ONCA 551, 152 O.R. (3d) 125, at paras. 47-48, and Friesen, at paras. 101-4, in support of this principle.
68Ms. Orlando, in support of her position that a six-year sentence is appropriate in this case, referred to Mckelvey J.’s decision in Safieh. The accused, who was a youthful first offender, was convicted of two counts of procuring a person under the age of 18 years to provide sexual services pursuant to s. 286.3(2) of the Code. The mandatory minimum sentence for this offence is five years. The two complainants, ages 16 and 15, lived in a group home. The accused invited them to a hotel room, where he explained that he would rent rooms for them and that they would be required to immediately turn over to him all the money that they made from providing sexual services. The accused was in the middle of taking photographs of the girls when the police arrived and removed them from the premises. The photographs were never released on the internet, and the girls, unlike A.O. in the present case, were never actually involved in prostitution. In sentencing the accused to a global sentence of six years, McKelvey J., at para. 37, stated:
As noted in my earlier decision, it is beyond doubt that severe harm is caused by child trafficking. The horrors and evils of child prostitution are well documented both in the case law and the academic literature. As noted by Justice Moldaver in the Supreme Court of Canada decision in R. v. D.(D.), [2002] O.J. No. 1061, at para. 34,
The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price.
69Ms. Orlando relies on Delchev and Alexis-McLymont, Elgin, and Hird in support of her position that a sentence higher than the five-year mandatory minimum is called for in this case as Dylan, by virtue of his previous conviction and his breach of probation, is not the “best” offender.
70In Alexis-McLymont, Elgin and Hird, Leach J. considered the five-year mandatory minimum sentence in regard to the offences of procuring a person under the age of 18 to provide sexual services and trafficking a person under the age of 18. At paras. 27-28, he stated:
In considering such mandatory minimum sentences, I am mindful of numerous authorities which have emphasized (albeit in other contexts), that an applicable mandatory sentence must not be considered the “norm”, thereby effectively converting the sentencing “floor” into something resembling a “ceiling” as well. See, for example: R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 75; and R. v. K.G., 2012 ONSC 3523, [2012] O.J. No. 2785 (S.C.J.), at para. 36.
In particular, as emphasized in such Supreme Court of Canada decisions, and by decisions of our Court of Appeal in cases such as R. v. Delchev, [2014] O.J. 2769 (C.A.), at para. 19, such mandatory minimum sentences must act as an “inflationary floor”, setting a minimum punishment applicable to the so-called “best” offender whose conduct is caught by such provisions. The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has committed the offence in the very worst circumstances. The latter approach would not only defeat the intention of Parliament in enacting such legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions.
71Ms. Orlando also relies on the Court of Appeal’s decision in Wilson. The offender was convicted after trial of trafficking a person under the age of 18, receiving a material benefit from the commission of an offence under s. 279.011(1) of the Code; receiving a material benefit from the commission of an offence under s. 286.1(2) of the Code; making child pornography; distributing child pornography; and procuring. He received a global sentence of 7 years, less 95 days pre-sentence custody, to be served consecutively to an unrelated sentence for manslaughter. The Court dismissed the conviction appeal and upheld the seven-year sentence, finding that it was fit and fell within the range for human trafficking and child pornography.
72As Mr. Wilson had a trial, he did not benefit from the mitigating factor of a guilty plea. There were also many aggravating circumstances in Wilson that distinguish it from the present case. The complainant in Wilson was trafficked for a much longer period of time than A.O. Wilson exercised extreme control over the complainant, and physically abused her by pushing her and pinning her down. On one occasion, when she tried to run away, he held her down as other women in the group struck her. At one point, she was “working 24-7.” Wilson arranged the transportation to the places where she met clients and stayed in the bathroom while she was with the clients. He took and posted explicit photos of her and posted advertisements offering her services. Once, without telling the complainant, he arranged for a client to carry out a “rape fantasy” which only ended when the complainant called out for help.
73Finally, Ms. Orlando referred to the Court of Appeal’s decision in Abedini. Ms. Abedini was convicted after trial of eight offences involving two complainants related to the sex trade, including human trafficking, receiving a financial benefit, living on the avails of a person under 18 under aggravated circumstances, procuring a person to become a sex trade worker, and exercising control for the purpose of gain. She was sentenced to 8.5 years in custody, less credit for pre-sentence custody and strict bail conditions. The Court, in dismissing her sentence appeal, found that the sentence was entirely fit and within the range for similar offences and offenders. The aggravating factors in the case included the appellant’s detailed orchestration of a sex trade business into which she enticed vulnerable young women from whom she profited greatly while exercising strict and abusive physical and psychological control over them while giving them very little in return. This case is distinguishable from the present case, given Dylan’s plea of guilty and the fact that he was not physically abusive toward A.O.
Analysis
74I turn now to the specific aggravating and mitigating factors in this case.
Aggravating factors
75The aggravating factors include the following:
Dylan breached the relationship of trust between himself and A.O. by playing on A.O.’s love for him in order to convince her to engage in prostitution. Dylan told her that if he was not able to pay the debts that he owed, he would be killed. Not wanting to see him die, A.O. agreed to provide sexual services in order to help him pay off the debts. When she obtained money for him, he told her that he loved her. When she did not make money, he told her that he hated her. The Court in Friesen, at para. 153, stated that where a breach of trust or grooming has led to participation, that should properly be seen as an aggravating factor. The Court emphasized that the victim’s participation should never be considered as a mitigating factor.
The offence committed by Dylan constituted the abuse of a person under the age of 18 which, pursuant to s. 718.2(a)(ii.1) of the Code, is an aggravating factor. This section recognizes the inherent vulnerability of children and the need for added denunciation and deterrence in relation to those who abuse them. The abuse of inherently vulnerable children is an aggravating factor that is compounded in cases such as this, where there are other circumstances that accentuate and reinforce the child’s vulnerability. The fact that A.O. had run away from home and was addicted to cocaine made her particularly vulnerable.
Dylan provided A.O. with cocaine, knowing that she was addicted to the drug. He was not responsible for causing her addiction, but by supplying her with the drug, he put her in harm's way. As Crown counsel observed, there is always the danger of an overdose. In addition, addicts are prone to “do what it takes,” to satisfy their addiction. This makes them vulnerable to being exploited and controlled by others.
Dylan repeatedly put A.O. in harm’s way by trafficking her, as there is always the risk that a client may turn violent. On one occasion, A.O. fractured a vertebrae when she jumped out of a moving car after perceiving that she was in danger. On another occasion, she was sexually assaulted by a client. Three days later, Dylan asked her to see another client. He clearly did not have her well-being in mind, and cared more about making money.
Three months prior to his commission of the current offence, Dylan was placed on probation with respect to the offence involving N.L. One of the terms of his probation was that he must not engage in any activity related to the sex trade. His trafficking of A.O. was a flagrant violation of that term of his probation. Dylan cannot be considered to be the “best” offender, given his prior conviction and the fact that he breached a condition of his probation just three months after that sentence was imposed.
Evidence that the offence had a significant impact on the victim, taking into account their age and other personal circumstances, including their health and financial situation, is deemed to be an aggravating circumstance pursuant to s. 718.2(iii.1) of the Code. In this case, the offence had a significant impact on both A.O. and her mother, as outlined in their respective Victim Impact Statements. A.O. describes how her view of herself and the world has changed. She has become cynical and unable to take pleasure in activities that she once enjoyed. She finds it difficult to socialize, which interferes with her ability to get the most out of her college experience. She suffers from back pain from a cracked vertebrae, and also suffers from headaches, and insomnia. Fortunately, she is now in a stable environment and has the support of her parents. She is receiving physiotherapy, seeing a therapist, and able to continue with her education.
In her victim impact statement, K.P. describes the extreme stress that the offence has caused her, A.O. and the entire family. As reviewed earlier in these reasons, it has taken a toll on K.P.’s mental and physical health.
I note that adding to K.P.’s stress, and independent of Dylan’s actions, is the stress that K.P. felt upon learning that A.O. was in a relationship with S.A., who was in his forties. During her police interview, K.P. spoke of her worry and concern about the nature of that relationship. Her stress was obviously magnified upon learning of A.O’s allegations that S.A. had sexually exploited A.O., assaulted her, and taken pornographic photos of her.
Mitigating factors
76The mitigating factors in this case include the following:
- Dylan is a youthful offender. He turned 20 only a few weeks prior to committing these offences. Although his chronological age is 20, Dylan’s intellectual and emotional age is no doubt much younger, given the diagnoses of Borderline Intellectual Functioning (slow learner) and Attention Deficit Hyperactivity Disorder – Combined Type. The reports contained in Exhibit 6 show that Dylan was frustrated and struggled in school.
- Dylan has pleaded guilty, which is a sign of remorse and his willingness to take responsibility for his actions. In addressing the court, Dylan stated that he is sorry for what he has done, that he knows that it was wrong, and that “it will never happen again.” I accept his apology as sincere.
- Dylan pleaded guilty at a relatively early stage of these proceedings. He entered his plea shortly after the last judicial pre-trial and before a trial date was set. As a result of his plea, A.O. is not required to testify, thereby saving her from the stress and anxiety that inevitably come from having to recount traumatic events on the witness stand. In addition, Dylan’s guilty plea means that judicial resources can now be re-directed to other cases.
- A further mitigating factor is the difficult conditions that Dylan has experienced while in custody, which is referred to as the “Duncan” credit: R. v. Duncan, 2016 ONCA 754. In R. v. Marshall, 2021 ONCA 344, at paras. 50-53, the Court explained that the “Duncan” credit is not a deduction from the otherwise appropriate sentence. Rather, it is a factor to be considered along with all the other mitigating factors in determining the appropriate sentence, from which the “Summers” credit is then deducted. The “Summers” credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence that the accused has effectively served by virtue of pretrial incarceration: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575.
77In my view, taking into consideration the circumstances of the offence and the offender, the relevant principles of sentencing, the mitigating factors (including Dylan’s guilty plea), and the aggravating factors, the appropriate sentence in this case, before taking into account the conditions of pre-sentence custody, is six years’ imprisonment.
Collateral consequences – the Impact of COVID-19, Lockdowns, and Harsh Conditions on Sentence
78In Marshall, the Court referred to the very restrictive conditions in the jails and health risks brought on by COVID-19 as a good example of the kind of circumstances that may give rise to a Duncan credit.
79Dylan has been incarcerated since his arrest on April 7, 2021, or for a period of 2 years and 2 months and 1 day, or 792 days. A report prepared by the Security Manager at the TEDC, Sgt. John Lawson, sets out various aspects of Dylan’s incarceration while at the detention centre. The report, which is dated January 16, 2023, only covers the period from April 8, 2021 to January 4, 2023, or 637 days.
80Upon his admission to the TEDC, Dylan was subject to a mandatory quarantine period from April 8 to May 23, 2021. During the quarantine period, inmates were let out of their cells for only two hours a day in order to provide access to showers, a telephone and television. However, Dylan was not let out of his cell for the full 2 hours on 33 of the 46 days that he was under quarantine.
81Dylan’s unit was subject to a COVID droplet protocol for the following periods: September 27, 2021 to October 15, 2021; October 27, 2021; December 10, 2021 to December 29, 2021; and January 6, 2022 to January 12, 2022. During these periods, Dylan was let out of his cell for only 30 minutes per day in order to allow access to showers, the telephone, and television.
82Dylan contracted COVID-19 while at the TEDC. Dylan also developed symptoms consistent with COVID-19 on several occasions after his first infection, although they were milder in nature. He suspects that these were re-infections of the same virus, but he was never tested for COVID-19 to confirm that this was in fact the case. The COVID-19 pandemic, while certainly less serious than it was, is still a factor and will continue to be a factor while Dylan serves his sentence.
83It is hardly surprising that Dylan contracted COVID-19 while incarcerated, given the inability of inmates to practice social distancing in the detention centre: Sgt. Lawson’s report indicates that of the 637 nights between April 8, 2021 and January 4, 2023, Dylan was triple bunked with other inmates on 128 nights, and that he slept on the floor on 57 of those nights. He was double-bunked on 422 nights. It is fair to assume that there have been additional nights between January 4, 2023 and today’s date that Dylan has been double or triple-bunked, and has had to sleep on the floor.
84Although fresh air or outside exercise is “normally” offered every day, the Superintendent may cancel it due to inclement weather or security concerns. Sgt. Lawson’s report states that the institutional average for offering yard access is only 33 percent of the time. However, Dylan’s unit has only been offered fresh air or outside exercise 18 percent of the time while he has been incarcerated.
85Sgt. Lawson’s report indicates that there were five full-day lockdowns and 174 partial lockdowns during the period between April 8, 2021 and January 5, 2023. 150 partial lockdowns were due to staffing shortages. These numbers do not reflect all of the lockdowns that have taken place during Dylan’s incarceration at the TEDC, as Sgt. Lawson’s report does not cover the five-month period between January 5, 2023 and today’s date, June 7, 2023. It is fair to assume that lockdowns have continued to occur during that period with approximately the same frequency.
86In-person public visits were cancelled due to COVID-19 during the following periods: March 16, 2020 to July 6, 2020; November 23, 2020 to June 13, 2021; September 13, 2021 to October 15, 2021, and November 29, 2021 to December 10, 2021.
87Video visits, which allowed inmates to schedule one public visit per week via video link commenced on August 1, 2020. However, they were cancelled from September 27, 2021 to October 15, 2021, and November 29, 2021 to December 10, 2021 due to the situation with COVID-19.
88As a result of the nature of his charges, Dylan was assaulted by two inmates during his first month in custody. Fortunately, he did not sustain any injuries. Following the assault, he was transferred to the Protective Custody Unit, where he has remained ever since. Dylan has suffered no further assaults, but he continues to receive threats or verbal abuse from other inmates, again as a result of the nature of the offence with which he is charged.
89It is noteworthy that there have been no incidents of misconduct by Dylan during his incarceration at the TEDC, despite the stress that he has experienced from having been assaulted, the verbal abuse from other inmates, the restrictive conditions in the jail, his having contracted COVID-19 at least once, and the risk that he may contract the virus again. In my view, it is appropriate to grant Dylan a reduction in sentence of 9 months, pursuant to the principles set out in Duncan.
The Sentence in this Case
90As stated earlier, the sentence that I would have imposed before considering the harsh circumstances of Dylan’s incarceration would have been a sentence of six years. Deducting the Duncan credit of nine months results in a sentence of five years and three months.
91Dylan is also entitled to a Summers credit based on the time that he has spent in pre-trial custody, which is 792 days, or 2 years, 2 months and one day. When credited on the basis of a 1.5:1 ratio, the Summers credit is 3 years, 3 months, and one-and-a half days. This leaves Dylan with a remaining sentence of 2 years less 1.5 days to be served, or 2 years less 2 days.
92The sentences imposed are therefore as follows:
- On Count 3 in the Indictment (exploiting a person under the age of 18 years, contrary to s. 279.011(1) of the Criminal Code): 2 years less 2 days;
- Breach of probation: 6 months concurrent.
93In addition, following the completion of the custodial portion of his sentence, Dylan will be placed on probation for two years. The terms of the probation are as follows:
- Keep the peace and be of good behaviour
- Appear before the court when required to do so by the court
- Notify the court or probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation
- Report to a probation officer within three business days of release from custody and thereafter in the manner required by the probation officer
- Take counselling or any educational program as directed by the probation officer and sign any releases as required in order to permit the probation officer to monitor your progress
- Live at an address approved by the probation officer
- You will not possess any weapons as defined by the Criminal Code
- You will have no contact, direct or indirect, with A.O. or any members of her family
94I make a strong recommendation that Dylan serve his sentence at the Ontario Correctional Institute.
Ancillary Orders
95I also make the following ancillary orders:
- As Dylan has been convicted of a primary designated offence as defined under s. 487.04 of the Code, there is an order under s. 487.051 authorizing the taking from him the number of samples of bodily substances that are reasonably required for the purpose of forensic DNA analysis.
- Pursuant to s. 490.012 of the Code, there is an order that Dylan comply with the Sex Offender Information Registration Act for a period of 20 years.
- There is a lifetime firearms prohibition order pursuant to s. 109 of the Criminal Code.
- There is an order pursuant of s. 743.21 of the Code prohibiting Dylan from communicating directly or indirectly with A.O. or any of her family members during the custodial period of his sentence.
Garton J. Released: June 7, 2023