COURT FILE NO.: 19-1941 DATE: 2023/07/10

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Juteah Downey Accused

Counsel: Siobhain Wetscher, for the Crown Robert Carew, for the Accused

HEARD: June 8, 9, 2023, oral decision given June 22, 2023

Restriction on Publication

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code of Canada.

REASONS FOR SENTENCE

SOMJI J.

Overview

[1] The accused, Juteah Downey, was convicted on January 31, 2023, of 16 counts of human trafficking related offences involving four complainants. Mr. Downey operated an agency whereby he recruited women to work for him and to provide him 100% of their earnings from sex work in exchange for accommodation and the promise of future riches. Those promises did not come to fruition and all four women, who were financially and emotionally vulnerable at the time of recruitment, left the arrangement more destitute than when they arrived: R v Downey, 2023 ONSC 767.

[2] The Crown takes the position that a global sentence of 18 years of imprisonment is appropriate based on Mr. Downey’s prior criminal record which includes a conviction for human trafficking, the aggravating factors in this case, the multiple victims involved, the current jurisprudence on sentences for human trafficking, and the principle of totality. In addition, the Crown seeks several ancillary orders.

[3] Defence argues that notwithstanding Mr. Downey’s prior conviction for human trafficking, the appropriate sentence in this case would be a custodial period of four to eight years including pre-trial custody. Defence argues that this case is distinguishable from other human trafficking cases because there is an absence of some of the harsh brutality often present in other trafficking cases. In particular, defence argues that the accused did not use physical force or drug intoxication to compel the complainants to engage in sex work. In addition, defence identifies two cases involving similar circumstances where sentences within defence’s proposed range were imposed.

[4] This decision sets out my reasons for sentence. All legislative references are to the Criminal Code, R.S.C., 1985, c. C-46 unless otherwise stated.

Analysis

A. Law on sentencing generally and for human trafficking offences

[5] Section 718 sets out the fundamental purpose and objectives of sentencing. The provision states as follows:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[6] Denunciation requires that a sentence express society’s condemnation of the offence that was committed: R v Bissonnette, 2022 SCC 23, 469 DLR (4th) 387 at para. 46. Deterrence has two forms. Specific deterrence is meant to discourage the offender from reoffending whereas general deterrence is intended to discourage members of the public who might be tempted to engage in the criminal activity for which the offender is convicted: Bissonnette at para. 47.

[7] General deterrence, denunciation, and specific deterrence are paramount sentencing considerations for offences involving human trafficking given the “callous, cruel, and repulsive” nature of these crimes: R v Augustin, 2022 ONSC 5901 at para. 88. Citing the decision in R v Antoine, 2020 ONSC 181, at para. 29, Chozik J. explains the role of the pimp in Augustin as follows:

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: Augustin at para. 88.

[8] In imposing a sentence, I must consider the fundamental principle of sentencing set out in s. 718.1 which is proportionality. Proportionality requires that the sentence reflect the gravity of the offence and the responsibility of the offender. Proportionality also has a restraining function and serves to guarantee that a sentence is individualized, just and appropriate: Bissonnette at para. 51.

[9] In addition, s. 718.2 sets out other principles which must be taken into consideration in imposing a sentence. Section 718.2(a) states that the court shall consider increasing or reducing the sentence to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender and lists factors which are deemed to be aggravating. One of the factors listed which I find is relevant to this case, and which is addressed further below, is 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).

[10] Section 718.2(b) to (e) requires a sentencing judge to also consider the following:

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[11] As explained by London-Weinstein J. in R v Gardiner, the sentencing range for human trafficking is difficult to define given the “infinite circumstances” in which the offence can be committed: 2020 ONSC 5954 at para. 99. Her Honour found that in recent years, the sentencing range has elevated to four to eight years: Gardiner at para. 99. In Gardiner, London-Weinstein J. found a global sentence of nine years was appropriate on four offences related to human trafficking, one count of sexual assault, and one count of assault. Taking into consideration the totality principle, London-Weinstein J. reduced the overall sentence to seven years less 90 days for pre-trial custody. Mr. Gardiner had exploited a 21-year old university student over a seven-month period. He was 27 years of age at the time with no criminal record and strong prospects of rehabilitation.

[12] Sentences within a similar range were imposed in R v Augustin. In Augustin, two accused trafficked a 22-year old victim for a period of two months. The accused controlled the complainant’s access to food, drink, pharmacy supplies, and social media contacts. They also controlled the clients she saw, the sexual services she provided, and the earnings she made. Mr. Augustin had a lengthy criminal record with violence and was sentenced to eight years for five human trafficking related offences. The co-accused, Mr. St. Armand, was 24 years of age at the time, without a criminal record, and had realistic prospects of rehabilitation. He was convicted on three human trafficking related offences to a sentence of five years.

[13] The range for sentences involving one victim, however, is not confined to four to eight years. Depending on the aggravating factors, courts have imposed sentences beyond eight years. In R v A.S., 2017 ONSC 802, the sentencing judge imposed a sentence of 12 years for human trafficking and multiple assaults. The accused was 35 years of age with a prior criminal record. He exploited a vulnerable indigenous women for a period of four years. In R v Jordan, the Ontario Court of Appeal upheld a nine-year sentence against an accused with a prior criminal record who trafficked his girlfriend for a period of five years: 2019 ONCA 607.

[14] In this case, I find there are two distinguishing factors that warrant a total sentence higher than four to eight years suggested by defence. First, the accused is not a first time offender. He was convicted of human trafficking of a 14 ½ year old and sentenced to a penitentiary term of 2 ½ years: R v Downey, 2016 ONCA 19. Second, this case involves four victims. While it would offend the proportionality principle to simply multiply the sentence for one victim times four, in coming to a just and fair determination, I must nonetheless consider the scope of the accused’s criminal activity and its impact on each of the complainants when determining an appropriate sentence. In R v McLean, 2016 SKCA 93, Ottenbreit J. addressed the issue of sentencing in multiple victim cases noting that to treat such cases as singular events runs the risk of allowing offenders to commit crimes “cheaper by the dozen.” While the comments were made in the context of sexual assault offences, I find they are equally informative in this context. Justice Ottenbreit states at para. 54:

Generally speaking, and subject to the totality principle, multiple offences against multiple victims may result in the lengthening of the overall sentence. In the case of sexual offences on multiple victims, it may be more appropriate to impose consecutive sentences. Some courts have commented that to treat cases with multiple victims in close time proximity as a singular event would allow the offender to commit crimes “cheaper by the dozen” (R v Maliki, 2005 BCCA 495, 201 CCC (3d) 524; R v Berry, 2014 BCCA 7, 349 BCAC 76) or result in a “free ride” error (R v P.K., 2012 MBCA 69, 286 CCC (3d) 112).

[15] In cases where multiple victims are involved, the courts have taken into account the totality principle and imposed sentences higher than the four to eight years proposed by defence. For example, in R v S.H-O, 2022 ONSC 4900, a case involving two victims, the court found a fit and appropriate sentence was 8 ½ years. Of note, however, was the fact that the 24-year-old accused had no prior criminal record and was remorseful for his actions and the harm that he caused the victims. Another mitigating factor was that the accused pled guilty for the offences.

[16] Similarly, in R v Burton, 2018 ONCJ 153, the sentencing judge found that the general range for trafficking is anywhere from 5 to 13 years. In that case, the judge imposed a sentence of 8 ½ years and an additional two years consecutive for obstructing justice. The court found that the aggravating factors were that there were two victims and the accused kept all the profits to himself. While the accused had a criminal record, it did not appear to include a prior conviction for human trafficking. In that case, the judge found that the counts were intertwined warranting concurrent rather than consecutive sentences for human trafficking for each victim.

[17] In R v Moazami, 2015 BCSC 2055, the court imposed a sentence of 23 years. The accused was convicted of 30 counts of prostitution-related offences spanning a period of two and a half years on 11 complainants. The complainants were minors between the age of 14 and 19 and the accused had also engaged in sexual offences against the complainants. The accused did not have a related criminal record. In arriving at the sentence, the court considered: (1) the large number of complainants; (2) the lengthy offence period; (3) the range of prostitution-related offences that run the full gamut prohibited by the Code; (4) the large number of times that Mr. Moazami committed sexual offences against the complainants over the offence period; (5) the young age of the victims and their vulnerable circumstances; (6) the existence of multiple minimum sentences for the offences committed and maximum sentences that range from 10 to 14 years’ jail; (7) the failure of Mr. Moazami to take responsibility for his actions after conviction and his lack of remorse; (8) his relatively young age at the time of the offence; and (9) his lack of a related criminal record: Moazami at paras. 142 to 144.

[18] Defence relies on the decisions of R v Crosdale, 2019 ONCJ 3 and R v Sinclair, 2020 ONCA 61 in support of his proposed range of sentence. In Crosdale, the judge imposed a sentence of six years for two counts of human trafficking involving two victims. I find that Crosdale is distinguishable for the considerable number of mitigating factors cited by the judge. These included the fact that the accused had no prior criminal record, strong rehabilitative prospects, and multiple letters of support from his community. In addition, with respect to one of the victims, the accused’s involvement was very limited and occurred over a period of two days during which time he did not obtain any income from the victim’s participation in the sex trade: Crosdale at para. 33.

[19] I find the decision of R v Sinclair, a decision where the Ontario Court of Appeal upheld a sentence of 30 months of incarceration in a single victim case, of little assistance given that no information is provided as to the factors that were considered by the sentencing judge in imposing the sentence that she did: at para 30.

B. The Circumstances of the Offence

[20] In R v Lopez, Campbell J. sets out a non-exhaustive list of factors for consideration in determining an appropriate sentence for human trafficking offences. A similar approach and set of factors has been taken into consideration in other jurisdictions: see R v Tang, 1997 ABCA 174, 51 Alta LR (3d) 23. Below, I set out the application of the factors cited in Lopez and their application in the circumstances of this case:

i. The degree of coercion or control imposed by the pimp on the sex workers’ activities

[21] As noted in my decision, Mr. Downey exerted a significant amount of coercion and control over all four victims in this case. All the women provided Mr. Downey with 100% of their earnings, and in some instances, portions of their savings, family income, or child tax credit. Once their earnings were turned over, Mr. Downey controlled what and how much could be spent on food or basic necessities.

[22] As noted by Campbell J. in Lopez, pimps exercise control over their victims by a variety of tactics including emotional blackmail, verbal abuse, threats of violence and/or pure physical violence and brutality: Lopez at para. 52. In addition, women that are subject of the coercive exploitation are typically vulnerable and disadvantaged women who have been manipulated and taken advantage of by the pimp: Lopez at para. 52.

[23] While defence counsel is correct that Mr. Downey did not physically restrain the complainants, I found he exercised considerable emotional and psychological control over them. They all sought his permission to purchase supplies for themselves or the home, to obtain medical attention, to engage in any non-work related activities, or to take time off work. They lived largely isolated lives devoted almost entirely to working for him and his agency.

ii. The amount of money received by the pimp and the extent to which the pimp allowed the sex workers to retain their earnings

[24] All four victims handed 100% of their earnings over to Mr. Downey. They sought his permission to keep small amounts for basic necessities. In some cases, particularly towards the end of their relationship with him when they were trying to exit the arrangement, they did keep amounts without his knowledge.

[25] As noted in my decision, Mr. Downey’s financial records show cash deposits amounting to $119,477.99 in 2018 alone, and it his highly likely that there was much more earned which was not deposited into the accused’s accounts.

iii. The age of the sex workers and their numbers

[26] Defence is correct that the victims in this case were not minors which could be considered an aggravating factor. Nonetheless, all four victims were young women between the ages of 19 and 26. The accused was in his 40s with a partner and several children.

iv. Any special vulnerabilities of the sex workers

[27] All four women came to Mr. Downey with their own special vulnerabilities. These vulnerabilities are discussed at length in my decision. They are summarized below.

[28] P.C. immigrated to Canada at the age of 19 with the expectation of earning a degree. She was having difficulty funding her studies and was financially desperate. She used her last $300 to fly to Ottawa to meet Mr. Downey and had less than $5 in her pocket when she got here. While she was able to persuade the accused to provide her with some funds for school, after 15 months she found herself just as financially destitute, criminally charged, in an immigration detention centre, and facing the risk of deportation.

[29] M.M. fled an abusive relationship and was financially vulnerable because she had to support not only herself but her son. She travelled to Windsor to meet Mr. Downey with only $25 that he sent her. She had no place to live.

[30] S.T. was victimized by a previous pimp and both emotionally and financially vulnerable when she agreed to work for the accused. She was having difficulty paying rent and was not prepared to return home to her parents. She had remarkably low self-esteem. She was falsely lured by the advertisement posted by the accused’s agency which suggested it was an all female run agency which she believed would be a safer work environment.

[31] P.G. had no friends or family in Ontario when she agreed to meet the accused. She had left a problematic arrangement in Montreal. On her way to Ottawa, she was stopped by the police and her license was suspended. She had no place to live. Mr. Downey arranged to tow her vehicle but then took both the vehicle and the little money she had saved up. She worked with him for one month before going to Victim Services for assistance to exit and return home.

v. The working conditions that the sex workers were expected or encouraged to operate under, in addition to whether appropriate health safeguards were taken

[32] The working conditions were poor. The women lived in a house where there was a shortage of beds, insufficient food, and sometimes heat. While working at the Spa, P.C. had no washing facilities and used a sink to bathe herself. M.M. called the apartment she relocated to a “dump.” When they went on road trips, the complainants would all live out of one hotel room with the accused and would have to take turns waiting outside if the room was being used by one of the women to service a client.

[33] Mr. Downey was not forthcoming with funds to pay for the women’s basic necessities such as hygiene products. The complainants would get free condoms from the clinic. At one point, several of the women became extremely sick with gonorrhea and vaginitis. The infections would spread because three of four victims were having unprotected sex with Mr. Downey. Even when they were sick, Mr. Downey insisted they continue working. At one point, they had to plead with him to allow one of the girls to attend the hospital for treatment.

[34] While defence counsel is correct that the accused did not drug the complainants or lock them in a room to engage in sex work, he exercised sufficient emotional and psychological control over when they worked and who they saw. For example, he had clear instructions that they were not to have unprotected sex with anyone but him. He forced M.M. to service a friend that she did not want to. He made S.T. engage in sex work at the Spa which he later opened even thought she felt very unsafe there because there were no fixed prices and mixed expectations from the male clients who could become violent.

vi. The degree of planning and sophistication, including whether the pimp was working in concert with others

[35] Counsel for the accused argues that Mr. Downey’s agency was not a sophisticated operation. I respectfully disagree. Mr. Downey created the myth of a corporate empire to lure the victims in. P.C. believed he was running an agency in multiple locations and was told she could advance into other positions over time. He posted advertisements to recruit women to his agency. He had “Jamie” responsible for recruitment and organizing client calls to either distance himself from the illegal activity or create a false corporate aura, but as discussed in my decision, it is questionable whether Jamie is anyone other than the accused himself. Mr. Downey used multiple cell phones and ran his agency from different residences. He operated several businesses including Exotic 6, Lust Inc., Canada Bookings, and maintained multiple webpages. He advertised sex work in several cities and would take the victims on travel tours or had them work at “bachelor” parties. He also had connections to a strip club in Windsor where he would periodically have the victims work. Finally, in the spring of 2019, he opened Touch Therapy Spa which required considerable business planning and investment. While the Spa offered some legitimate professional services, it was largely a front to continue his trafficking business. All of the complainants who were still present at the time testified that sex work was done at the Spa and the earnings turned over to the accused.

vii. The size of the pimp’s operations, including the number of customers the sex workers were expected to service

[36] The earnings in Mr. Downey’s accounts indicated that he ran a large and sophisticated operation. The complainants provided various estimates of their earnings ranging up to $5,000 on a good day. All the complainants testified they were expected to work 24/7 and not permitted to turn clients down. They fairly acknowledged there were slower days than others. The deposits and the testimony of the complainants regarding their hours and earnings makes clear that this was not a small operation.

viii. The duration of the pimp’s exploitative conduct

[37] The duration of the exploitation varied. P.G. was trafficked for one month, M.M. and S.T. each for seven months and P.C. for 15 months.

ix. The degree of violence, if any, apart from that inherent in the pimp’s parasitic activities

[38] All of the complainants except P.G. witnessed or experienced violence at the hands of Mr. Downey. I found that Mr. Downey assaulted P.C. by striking her in the face and then following her into another room and throwing wine glasses at her. I found the accused smeared a chicken burger on M.M.’s face following a dispute about marijuana.

x. The extent to which inducements such as drugs or alcohol were employed by the pimp

[39] M.M. was a frequent user of marijuana and there were instances where Mr. Downey would try to withhold it from her until she worked. However, there was no evidence that he plied the complainants with drugs or alcohol to have them engage in the sex work.

xi. The effect on the sex workers of the pimp’s exploitation

[40] All four complainants provided Victim Impact Statements which speak to the emotional and psychological effects of Mr. Downey’s actions on their lives. These statements were all read in court. The complainants spoke about the trauma, shame, and self-guilt they continue to feel as a result of the experience. They talked about their feelings of anger towards the accused for his predatory behaviour, and feelings of depression and anxiety. They talked about the therapy they continue to undergo and the daily support they require to deal with the aftermath of their experiences. They spoke about the challenges of being financially destitute and having to start all over again. They spoke about their loss of trust and the challenge of being able to participate in intimate relationships emotionally or physically. While some have managed to move forward with their lives, it is clear that others continue to struggle to rebuild their lives.

xii. The extent to which the pimp demanded or compelled sexual favours for himself from the sex workers

[41] Except for P.G., Mr. Downey had sex with three of the four complainants within 24 hours of meeting them and then maintained simultaneous sexual relationships with them throughout the time they were with him. As noted in my decision, the women would refer to each other as “sister-wives”. While the sex was not coerced, it was understood by the complainants that loyalty to Mr. Downey meant having unprotected sex with him whenever he wanted it. It was not lost on the complainants that the sexual relationship was part of the accused’s way of retaining emotional control over each of them by making each feel like they were special.

xiii. The age of customers attracted to the services of the sex worker

[42] Little is know about the age of the customers serviced.

xiv. Any steps taken by the pimp to avoid detection by authorities

[43] Mr. Downey took several measures to avoid detection by authorities:

1. He instructed P.C. to put the leases to the various residences in her name, as it was illegal for him to do so.
2. He instructed the victims about what to do when police arrived at the residence.
3. He opened up “Touch Therapy Spa” which ended up being a front for his trafficking business.
4. He used “Jamie” either an alias, or at minimum, a highly surreptitious character, to assist him in recruiting the victims, posting ads for sex work, and communicating with the victims to attend for the sex work.
5. He had money going into multiple accounts including corporate ones.
6. He operated several businesses, some of which like his modelling agency, appeared to be a front for recruiting women into his trafficking operation.

[44] Defence argues that a mitigating factor in this case is that some of the victims were already working in the escort business and that this reduces the accused’s moral blameworthiness. This same argument was made and rejected at trial as absolving the accused of responsibility. I fail to see how the complainant’s choice of profession constitutes a mitigating factor in sentence. Sex work is not illegal. This type of argument focuses inaccurately on blaming the victim for the accused’s exploitative conduct and fails to recognize the vulnerability of those engaged in this type of profession to exploitation by people such as the accused. As stated by the Supreme Court of Canada in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101 at para. 86:

First, while some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so. Ms. Bedford herself stated that she initially prostituted herself “to make enough money to at least feed myself” (cross-examination of Ms. Bedford, J.A.R., vol. 2, at p. 92). As the application judge found, street prostitutes, with some exceptions, are a particularly marginalized population (paras. 458 and 472). Whether because of financial desperation, drug addictions, mental illness, or compulsion from pimps, they often have little choice but to sell their bodies for money. Realistically, while they may retain some minimal power of choice — what the Attorney General of Canada called “constrained choice” (transcript, at p. 22) — these are not people who can be said to be truly “choosing” a risky line of business (see PHS, at paras. 97-101).

[45] Defence also argues that the fact that two of the victims were initially charged also constitutes a distinct factor to be considered in arriving at an appropriate sentence. As I stated at the sentencing hearing, while two of the complainants may have been initially charged, they are not on trial and no findings of fact have been made against them with respect to criminal responsibility.

[46] Furthermore, even if the complainants had participated in certain tasks within the accused’s operation such as posting ads for the other girls or organizing bachelor parties, it was clear that they were doing so under the accused’s direction, and more importantly, all the money earned from those activities was handed over to the accused. It is not unusual for pimps to have the victims engage in operational tasks for their financial benefit.

C. The circumstances of the Offender

i. Personal history

[47] Counsel provided limited information about the personal circumstances of the accused. Mr. Downey was born in North Preston, Nova Scotia on January 14, 1978. He is presently 45 years of age. He came to Ottawa with his mother at the age of eight or nine. He has no siblings. Mr. Downey informed counsel that his father was an alcoholic and was in and out of jail. He died in 2019, coincidentally at the time of the accused’s arrest.

[48] Mr. Downey went to Brookfield High School in Ottawa and commenced a program for business management and took a sign language course(s) at Algonquin College. He was interested in sign language as he has a deaf cousin in Nova Scotia. The accused has held jobs at Hunt Club Honda, McDonalds, JDS, Petro Canada and at the garage where his mother works. He started a cleaning and moving company, and has been involved in music and film making. His future plans would be to work in cleaning and moving. He maintains an interest in music and film making.

[49] Mr. Downey has a common law spouse with whom he has four children aged seventeen, thirteen, eight and four. He does not live with his spouse, but resides nearby at his mother’s place.

[50] Mr. Downey indicated to his counsel that he does not have any drug or alcohol issues.

ii. Prior criminal record

[51] The accused has a prior criminal record with 14 convictions. One conviction is for a human trafficking related offence involving a 14-year old. The charge arose following a probe by the Peel Regional Police of six men and two women recruiting young women to engage in sex work in areas around Ottawa and Toronto. On January 6, 2014, the accused was convicted of aiding the complainant in engaging in prostitution for the purpose of gain following a judge and jury trial. He was sentenced to two and a half years jail. The Ontario Court of Appeal dismissed the accused’s appeal: R v Downey, 2016 ONCA 19.

[52] As noted in my decision revoking Mr. Downey’s bail, the accused has nine prior convictions for breaches of court orders, six of which arose before April 2019 when he was arrested on the convictions presently before the court. One set of breaches arose while the accused was on bail pending appeal of the 2014 human trafficking conviction. On November 21, 2014, the accused was found to be in breach of conditions regarding his residency and travel within the city. The police located the accused with a young female at the McDonalds on Rideau Street in downtown Ottawa far from his residence or college. The most egregious aspect of the breaches was that at the time of arrest, the police located two iPhones and a laptop computer that was open to Back Pages Ottawa, a website used for advertising sex work. The police also found various entertainment cards bearing the name “Sugar Babies Club”, and 4 SD memory cards. The accused was convicted of two breaches in April 2015 and sentenced to 60 days jail.

[53] On January 11, 2016, the Ontario Court of Appeal rendered its decision. The accused would have commenced a two and a half year penitentiary sentence at this time. The period of the Indictment on the current convictions covers February 15, 2018, to April 18, 2019. Hence, not long after his release from jail, the accused commenced his operations relating to the human trafficking charges for which I have now found him guilty.

iii. Remorse

[54] Unlike in cases such as Augustin or Lopez, Mr. Downey did not provide this Court with any heartfelt letter of apology or verbal or written expression of genuine remorse during the sentencing hearing. Mr. Downey did interrupt one of the complainants while she was reading out her Victim Impact Statement to state that having heard them, he wished to apologize. However, I did not find it to be a genuine or sincere expression of remorse. Following his own counsel’s submissions, he did not reiterate any such expression of remorse.

iv. Other factors

[55] Mr. Downey was unwilling to participate in a pre-sentence report and refused to be interviewed by a probation officer assigned to prepare the report. Therefore, the only information available to me about Mr. Downey’s personal history is what is set out above.

[56] Counsel did not make any specific submissions on the impact of race or systemic racism on the accused. Counsel did request a race and culture based report (“IRCA”), but was advised by the Sentencing Project in Toronto that there was a seven-month waiting list to prepare such a report. While I am able to take judicial notice that black men have been subject to systemic discrimination in Canada, in the absence of either a pre-sentence report or an IRCA report, I am not in a position to assess whether race or social circumstance might be relevant to assessing Mr. Downey’s moral blameworthiness as an offender and what weight, if any, should be given to this factor in determining sentence: Augustin at para. 73 citing R v Morris, 2021 ONCA 680, 159 OR (3d) 641, at paras. 92-94, 97; R v Jackson, 2018 ONSC 2527, 46 CR (7th) 167.

v. Consecutive versus concurrent sentences

[57] Judges have discretionary power to impose concurrent or consecutive sentences. Crimes that constitute distinct criminal activities will lead to consecutive sentences subject to the principle of totality: Vera Camacho c R., 2021 QCCA 683, 71 CR (7th) 269 at para. 25. In deciding whether to impose consecutive or concurrent sentences, the general rule is that offences closely linked so as to constitute a single criminal venture may, but are not required to, receive concurrent sentences while all other offences are to be sentenced consecutively: R v Friesen, 2020 SCC 9 at para. 155. In Vera Camacho, the Quebec Court of Appeal did not find the trial judge erred in concluding that the sexual offences committed by the accused against nine victims he was trying to recruit for prostitution constituted distinct crimes for which consecutive sentences could be imposed: Vera Camacho at paras. 31 and 32.

[58] In this case, there is commonality between the victims. They were all recruited and trafficked by the accused and his agency; they worked in some cases for him during overlapping periods and out of the same homes; and they all agreed to provide him 100% of their earnings. However, I find the offences in relation to each of the four victims constitute discrete acts that warrant consecutive sentences for the following reasons.

[59] First, each victim was individually recruited on separate dates and worked for Mr. Downey for distinct periods of time. Second, each victim was procured by Mr. Downey on the basis of their unique vulnerabilities and the promise of achieving their own particular goals which never materialized. Third, each victim had her own personal and working relationship with Mr. Downey. Fourth, each victim generated income from her own sex work that was provided to Mr. Downey, whether through servicing clients on and off site, at bachelor parties, at strip clubs, at the spa, or during one of Mr. Downey’s road trips. And finally, each was uniquely harmed by the exploitative relationship. I do not find the events are so closely linked so as to constitute a singular criminal venture warranting a single sentence. In short, I find the offences against each of the victims warrants its own period of imprisonment keeping in mind that the final sentence imposed must respect the principle of totality: Paul v The Queen, [1982] 1 SCR 621 at p. 626.

D. Restitution Order under s. 738

[60] As part of the sentence, the Crown seeks a restitution order pursuant to s. 738. The Crown relies on the fact that approximately $119,000 of cash deposits was identified in the evidence and attributable to proceeds from trafficking. The Crown argues that the fact that the accused does not have any present ability to pay or that he will be in custody for a considerable period is not a determinative for whether such an order should be granted.

[61] Defence opposes arguing that restitution should not be mechanically imposed where the amounts are not readily quantifiable, and notes the accused has limited ability to pay.

[62] The decision to impose a restitution order is a discretionary one and forms part of the punishment to be imposed by the court and the totality principle in determining a fit sentence: R v Castro, 2010 ONCA 718 at para 23. After careful consideration, I find that notwithstanding the significant cash deposits into the accused’s account it would not be appropriate to impose a restitution order.

[63] In this case, there is evidence that there were a number of people working for the accused at various times over several years, some of whom had a different financial relationships with him. The cash deposits into the various accounts were examined over a total of four years. It is difficult to discern whether all the deposits over the four years are attributable to these complainants or other women working with the accused. Furthermore, while I found that there were cash deposits of approximately $120,000 in 2018, it is not easy to discern what portion of these earnings came from which complainant. For example, P.C. worked from the start of 2018 to the spring of 2019. M.M. and S.T. worked from the mid-2018 up to spring 2019. I find that to allocate 85% of the proceeds to three victims and 15% of the proceeds to P.G. because she was only there for one month in 2018, as the Crown suggests, would constitute a very arbitrary allocation of funds.

[64] Furthermore, a restitution order should not be made without some evidence of the accused’s ability to pay: R v Sawchuk, 2021 BCCA 74. Having said that, it must also be considered in the context of disclosure from the accused as to what happened to the money: Castro, 2010 ONCA 718 at para 34. In this case, the accused’s accounts were not frozen. While no explanation has been provided as to where the funds went, counsel argues I can infer that Mr. Downey is of limited means because he is on a Legal Aid retainer. Finally, the accused will be serving a very lengthy period of custody going forward with limited, if any, ability to earn money. I find in the circumstances of this case, a restitution order would not be appropriate.

Conclusion on Sentence

[65] Upon review of the circumstances of the case and offender, I find the following aggravating factors: one, the accused’s prior criminal record which includes a human trafficking conviction; two, that there were multiple victims who were all young adults and highly vulnerable; three, the presence of violence and intimidation; four, the size and sophistication of the accused’s operation including the profits he made over the offence period; and five, the financial and psychological on the victims that resulted from the offences.

[66] Counsel has not identified, nor have I found, any mitigating factors except perhaps that the conditions under which the victims were trafficked did not involve the level or frequency of violence that are often prevalent in the pimp and sex worker relationship: Crosdale at para. 33.

[67] Upon consideration of the aggravating factors including the accused’s prior conviction for human trafficking, the principles of sentencing including denunciation and deterrence, the sentencing ranges for offenders who have committed similar offences in similar circumstances, I find that a fit and appropriate sentence would be consecutive sentences of seven years for each of the victims P.C., M.M. and S.T; a consecutive sentence of five years for P.G.; and concurrent custodial terms for the related human trafficking offences and assault.

[68] Where consecutive sentences are imposed for multiple offences, I must ensure the cumulative sentence does not exceed the overall culpability of the offender. A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of sentence for the most serious of the individual offences involved, or if the effect is to impose on the offender a crushing sentience not in keeping with his record and prospects: Gardiner at para. 100 citing R v M. (C.A.), [1996] 1 S.C.R. 500 at para. 20.

[69] In this case, notwithstanding Mr. Downey’s lack of remorse and the limited information I have on his prospects of rehabilitation, I find that an aggregate sentence of 26 years would offend the totality principle and have a crushing effect on this offender given his current age. Consequently, I have adjusted the sentence to 15 years less pre-trial custody.

[70] Mr. Downey has spent 415 days in pre-trial custody. I have credited him 1.5 days for each day in custody for a total of 623 days.

[71] Mr. Downey has provided information to substantiate that he has spent 40 days in full or partial lockdown. His counsel seeks an additional Duncan credit of 18 days for harsh pre-sentence incarceration conditions.

[72] In R v Duncan, 2016 ONCA 754, the Ontario Court of Appeal indicated that in the appropriate circumstances, particularly harsh pre-sentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). When considering whether the accused should receive any enhanced pre-trial custody, the court is to consider both the conditions of the pre-sentence incarceration and the impact of those conditions on the accused: Duncan at paras 6 and 7.

[73] In this case, there was evidence that the appellant served about 40 days in either partial or full day lockdowns at the correctional institution. There was, however, no evidence of any adverse effect on the appellant flowing from the locked down conditions which is sometimes filed in the affidavit form: S.H-O. at para 86. The only information provided was one sentence in the defence written submissions that Mr. Downey suffered anxiety during this period. In the absence of any evidence of the adverse effect on the accused flowing from the locked down conditions, I am not satisfied that the accused suffered particularly harsh treatment entitling him to additional mitigation beyond the 1.5 credit.

[74] The breakdown on the final sentence of 15 years to be imposed after consideration of the totality principle on each count is as follows:

Count	Offence	Provision	Fit and Appropriate sentence	Final Sentence adjusted for totality principle
Victim P.C.
11	Human Trafficking	s. 279.01(1)	7 years	4 years (consecutive)
12	Procuring	s. 286.3(1)	4 years concurrent	3 Years (concurrent)
10	Assault	s. 266	6 months concurrent	6 Months (concurrent)
Victim M.M.
8	Human Trafficking	s. 279.01(1)	7 years	4 years (consecutive)
9	Procuring	s. 286.3(1)	4 years concurrent	3 Years (concurrent)
Victim S.T.
13	Human Trafficking	s. 279.01(1)	7 years	4 Years (consecutive)
14	Procuring	s. 286.3(1)	4 years concurrent	3 Years (concurrent)
Victim P.G.
3	Human Trafficking	s. 279.01(1)	5 years	3 Years less pretrial custody of 623 days (consecutive)
4	Procuring	s. 286.3(1)	3 years concurrent	2 Years (concurrent)
Other offences
17	Advertising Sexual Services	s. 286.4	3 years concurrent	2 Years (concurrent)
15	Material Benefit from Trafficking	s. 279.02(1)	3 years concurrent	3 Years (concurrent)
Total			26 years	15 years less pre-trial custody adjusted for Totality

[75] Upon request of the Crown, count 16, materially benefitting from sexual services contrary to s. 286.2(1), is judicially stayed on the basis of the Kienapple principle.

[76] Mr. Downey is sentenced to a global custodial term of 15 years. From this sentence I deduct 623 days for pre-sentence custody.

Ancillary Orders

[77] The Crown seeks the following ancillary orders:

1. DNA Order will be attached to counts 3, 4, 8, 9, 11, 12, 13, and 14 which are all Primary Designated Offences;
2. s. 109 Weapons Prohibition for 10 Years on counts 3, 4, 8, 9, 11, 12, 13, and 14;
3. s. 743.21 Non-Communication Order for all the complainants; and
4. Forfeiture Order of the funds seized to P.C.

[78] Defence has not objected to these orders and they will be issued accordingly.

[79] Counsel for Mr. Downey argues that the Victim Fine Surcharge of $2,400 should be waived. Counsel has not presented me with any documents substantiating Mr. Downey’s financial circumstances in the face of the earnings he made from human trafficking. Counsel indicates that it can reasonably be inferred from the fact that he is on a Legal Aid retainer that Mr. Downey has minimal income. In these circumstances, the Victim Fine Surcharge is waived.

Somji J. Released: July 10, 2023