COURT FILE NO.: CR-18-980-00 DATE: 2023 08 14

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING R. Prihar for the Crown

- and -

JONATHAN WILLIAMS A. Romain and P. Kott, for the Applicant/Defendant

HEARD: June 15, 2023, in Brampton

REASONS ON SENTENCING

The Conviction

[1] The trial of this action commenced on 26 July 2021. On 18 August 2021, the jury found Mr. Williams guilty of two of the four counts on the indictment, namely:

a) That between 1 December 2015 and 18 April 2016, Mr. Williams, he held, concealed, or harboured [S.B.], or exercised control, direction, or influence over her movements, in order to facilitate the sale sexual services under section 286.1 (1) contrary to section 286.3 (1) of the Criminal Code of Canada; and

b) That between 1 December 2015 and 18 April 2016 he received financial or other material benefit, knowing that it was obtained by or derived directly or indirectly from the commission of a defence under section 286.1 (1) contrary to section 286.2 (1) of the criminal code of Canada,.

Positions of the Parties

The Crown

[2] The Crown submits that Mr. Williams should be sentenced to three years and be subject to a no contact order under section 743.21 of the Criminal Code and a DNA order under section 286.2 and 286.3 of the Criminal Code.

Mr. Williams

[3] Mr. Williams submits that he be sentenced to a conditional sentence of 18 months, with such other terms as I find appropriate. He agreed there are no contact or entity in order are appropriate, as requested by the Crown.

Issues

[4] The following issues arise:

1. Is a conditional sentence appropriate?
2. What is the appropriate range of sentence in these circumstances?
3. What is the appropriate sentence for Mr. Williams?

Materials Submitted

[5] On sentencing, the Crown provided and relied on the following materials:

1. Victim Impact Statement of S.B.
2. R. v. Joseph, 2020 ONCA 733
3. R. v. Mascoe, 2020 ONCA 706
4. R. v. Green, unreported, 2022 05 24, and
5. R. v. Meshreky, 2019 OJ No 2834

[6] Mr. Williams submitted the following materials on sentencing:

1. Enhanced Presentence Report, dated February 7, 2023;
2. Pre-Sentence Report, dated February 22, 2022;
3. Pre-Sentence Report, dated March 22, 2023;
4. Reference Letters: a) Tania Williams Callender b) Don Williams c) Roger Callender d) Cynthia Alexis e) Father Edwin A. Galea, Pastor f) Catalina Badila g) Hannah Bassiri h) Ada Espinoza Di Giacopo i) Helena Paciej j) Julian Rawlins k) Darlene Rawlins l) Vanessa Alexis m) Simone Sealy
5. Photographs of Mr. Williams in his charity work;
6. Web Page article from the Government of Canada entitled “Bill C-5: An Act to amend the Criminal Code and the Controlled Drug and Substances Act, Charter Statement”; and
7. Web Page article from the Government of Canada entitled “Bill C-5: Mandatory Minimum Penalties to be repealed: Backgrounder.”

[7] In addition, Mr. Williams referred to the following cases, although without submitting the cases directly or uploading them to CaseLines:

1. R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61
2. R. v. Hartling, 2020 ONCA 243, and
3. R. v. Priest, 1996 1381 (ON CA), 30 O.R. (3d) 538

Factual Findings

The Law

[8] Because this was a jury trial, I must determine the material facts for sentencing. I must accept as proven all facts, express or implied, that were essential to the jury’s verdict (see: s. 724(2) (a) of the Criminal Code). I may also find any other relevant facts necessary to sentencing that were disclosed by the evidence at trial (see: s. 742(2) (b)).

[9] In R. v. Ferguson, 2008 SCC 6, at paras. 16-18, the Supreme Court of Canada explained how this fact-finding process is to be completed where a jury has found the accused guilty of an offence (see also: R. v. Aragon, 2022 ONCA 244, at para. 105).

[10] In determining the facts, it is appropriate for the trial judge to consider the legal instructions given to the jury. Where the basis of the jury’s verdict is unclear, the sentencing judge should make his own determination of the facts provided they are consistent with the jury’s verdict (see: Aragon, at para. 107). The judge is not obliged to assume that the jury took “the most lenient path to conviction” as Mr. Williams urges in this case (see: R. v. Nelson, 2014 ONCA 853, at para. 56). The sentencing judge must accept those findings of fact that were necessary for the jury to convict on the counts on the indictment on which it found the offender guilty. Beyond that, the sentencing judge must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury's verdict.

[11] The sentencing judge is required to make only those factual determinations necessary to decide the appropriate sentence. Where the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own determination of the relevant facts disclosed by evidence at the trial. Where an aggravating fact, or previous conviction is at issue, the sentencing judge must be convinced of the fact or the conviction beyond a reasonable doubt. Where any other fact is at issue, the sentencing judge must be persuaded on a balance of probabilities: (see: Ferguson, at paras 17 to 22).

Analysis and Findings

[12] In this case, Mr. Williams urged me to find only those minimum facts that the jury could have found in order to convict. This submission was premised on the basis that S.B. was not a credible witness and should not be believed.

[13] I disagree.

[14] The jury was not satisfied, beyond a reasonable doubt, that Mr. Williams advertised S.B.'s sexual services or that he made the threats made in text messages that S.B. said that he sent her. The fact that the jury rejected S.B.’s evidence with respect to two of the charges does not mean that her evidence should not be accepted with respect to the two charges of which he was convicted, nor does it mean that I should make no factual findings beyond the minimum factual findings the jury had to have made to find Mr. Williams guilty of the two charges on which they convicted.

[15] With respect to the charges of harbouring (s. 286.3) and receiving financial or other material benefit (s. 286.2), I find that S. B. was a credible witness. Her evidence was forthright. She faced difficult evidence, squarely. For example, she conceded that before her relationship with Mr. Williams she had sold her sexual services and did some advertising. She withstood cross examination well.

[16] I make the following findings of fact with respect to each of the convictions under section 286.3 and 286.2:

Facts re: the conviction under 286.3 of the Criminal Code

[17] Mr. Williams submitted that the only evidence concerning whether he held, concealed, or harboured S.B., or exercised control, direction, or influence over her in order to facilitate the sale of her sexual services was that he booked appointments for her. In short, his submitted that he was little more than a booking clerk.

[18] This is the minimum finding that the jury must have made to convict under section 286.3 of the Code. I accept the evidence of S. B. and make the following findings of fact:

a) Mr. Williams determined what services S.B. would perform, including weather the client would wear a condom. With respect to the use of the condom, S. B. wanted the clients to use one at all times. Mr. Williams used his position as someone whom he knew S.B. thought was a romantic partner, to convince her to not use condoms. b) He determined on what days, and the hours on those days, S.B. would work. When she could not work on a given day or could not work the hours he demanded on a specific day, she was required to pay him for the lost income. c) After a time, he began collecting all money from clients, paying to her only what he determined she needed from time to time. d) He arranged excursions to other cities and booked hotel rooms from which S.B. would provide sell her sexual services. His hotel room was nearby so he could negotiate with S.B.’s clients.

Facts re: conviction under section 286.2 of the Criminal Code

[19] Mr. Williams urges me to find that the only material benefit that he received from the sale by S. B. of her sexual services was a minor payment or transfers totaling $40.

[20] This is the minimum finding that the jury must have made in order to convict under section 286.2.

[21] I accept S. B.’s evidence and find that Mr. Williams set the prices, negotiated with the clients about what services were to be provided and the fee to be paid.

[22] Mr. Williams argued I should not accept S.B.’s evidence about financial matters because the only independent evidence that he received any material benefit was with respect to minor transfers of money to him. Mr. Williams admitted that I should only accept S.B.’s evidence on financial matters where it was supported by independent evidence.

[23] I reject this admission. I accept S.B.’s evidence and find that with the sale of sexual services, one does not keep books or use bank accounts. Prostitution is a cash business. I find that Mr. Williams, shortly after S.B. began selling the sexual services, began keeping all of S.B.'s income, paying her only what he deemed she needed, from time to time. I do not make a finding, however, of the specific level of income S.B. said she earned. She conceded that these were purely estimates of her income. Her business was a cash business, and several years have passed since she performed the services for which Mr. Williams kept the income.

Principles on Sentencing

[24] The fundamental purpose of sentencing is to protect society and to contribute 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 and the community by the offence; b) to deter the offender, specific deterrence and other person from committing offences, general deterrence, c) to separate offenders from society where necessary, d) to assist in rehabilitating offenders, e) to provide reparation for harm done to victims or the community, and f) to promote a sentence of responsibility in offenders, and acknowledgment of the harm done to victims or the community.

[25] Imposing a sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender and the harm caused by the crime (see: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at paragraph 43).

[26] There is one fundamental principle of sentencing – proportionality. The sentence must be proportional to the gravity of the offence and the offender's degree of responsibility. Proportionality "ensures a sentence reflects the gravity of the offence and is closely tied to the objective of denunciation, promoting justice for victims and ensuring public confidence in the justice system" while also ensuring "that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender, serving a limiting or restraining function, ensuring justice for the offender. In our criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other" (see: R. v. Ipeelee, 2012 SCC 13, [2012] 1 SCR 433, at para 37).

Issues

Issue One: Is a Conditional Sentence Appropriate?

Mr. Williams

[27] Mr. Williams submits that this case is a fitting case for the imposition of a conditional sentence. He concedes that in other circumstances a prison sentence would be appropriate. However, incarceration in an institution is neither mandatory nor necessary. It is contrary to the principles of rehabilitation. It would seriously and negatively impact Mr. Williams’ employment. It would offend the principles of restraint in sentencing.

[28] Mr. Williams submits that a conditional sentence is still imprisonment. Mr. Williams would be subject to house arrest for a period of 18 months, with such other terms as I might direct. Mr. Williams made no specific recommendations as to what those terms would be. He would also be subject to the maximum term of probation available.

[29] Mr. Williams submits that it is appropriate in this case for a conditional sentence because:

a) he is not a safety risk to himself or to others; b) the offences for which he has been convicted are not violent offences; c) he is a first time offender; d) he has been subject to restrictive bail conditions since his arrest and has observed those terms throughout; e) he has been “scared straight”, leading a pro social life since his arrest.

The Crown

[30] The Crown submits that a conditional sentence is inappropriate. It would not adequately address the overriding principles of sentencing in cases under the human trafficking provisions of the Code, namely specific deterrence and denunciation, in what is an inherently violent and exploitative crime.

Result

[31] This is not the situation in which a conditional sentence would be a fit and proper sentence.

The Law

[32] In Proulx, the Supreme Court of Canada, at para. 127, set out the following summary with respect to the imposition of conditional sentences:

1. The conditional sentence provisions were enacted to reduce reliance on incarceration as a sanction and to increase the use of restorative justice in sentencing.
2. A conditional sentence is different than probationary measures, which are primarily a rehabilitative sentencing tool. Parliament intended conditional sentences to include both punitive and rehabilitative aspects. Therefore, conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty as the norm, including house arrest.
3. No offences are excluded from the conditional sentencing regime except those with a minimum term of imprisonment. There are no presumptions in favour of or against a conditional sentence for specific offences.
4. Section s. 742.1(a) does not require the judge to first impose a sentence of imprisonment of a fixed duration before considering whether that sentence can be served in the community. Such an approach, although suggested by the text of s. 742.1(a), is unrealistic and could lead to unfit sentences in some cases. Instead, the sentencing judge should apply a purposive interpretation of s. 742.1(a). In a preliminary determination, the sentencing judge should reject a penitentiary term and probationary measures as inappropriate. Having determined that the appropriate range of sentence is a term of imprisonment of less than two years, the judge should then consider whether it is appropriate for the offender to serve his or her sentence in the community.
5. As a corollary of the purposive interpretation of s. 742.1(a), a conditional sentence need not be of equivalent duration to the sentence of incarceration that would otherwise have been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence.
6. The requirement in s. 742.1(b) that the judge be satisfied that the safety of the community would not be endangered by the offender serving his or her sentence in the community is a condition precedent to the imposition of a conditional sentence, and not the primary consideration in determining whether a conditional sentence is appropriate. In making this determination, the judge should consider the risk posed by the specific offender, not the broader risk of whether the imposition of a conditional sentence would endanger the safety of the community by providing insufficient general deterrence or undermining general respect for the law. Two factors should be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence. A consideration of the risk posed by the offender should include the risk of any criminal activity, and not be limited solely to the risk of physical or psychological harm to individuals.
7. Once the prerequisites of s. 742.1 are satisfied, the judge should give serious consideration to the possibility of a conditional sentence in all cases by examining whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. This follows from Parliament’s clear message to the judiciary to reduce the use of incarceration as a sanction.
8. A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future.
9. Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community.
10. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. Where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved. However, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender and the community in which the conditional sentence is to be served.
11. A conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in these circumstances.
12. No party is under a burden of proof to establish that a conditional sentence is either appropriate or inappropriate in the circumstances. The judge should consider all relevant evidence, no matter by whom it is adduced. However, it would be in the offender’s best interests to establish elements militating in favour of a conditional sentence.
13. Sentencing judges have a wide discretion in the choice of the appropriate sentence. They are entitled to considerable deference from appellate courts. Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit”.

[33] In determining whether a conditional sentence is a fit and appropriate sentence, I rely on the decision of Durno J. in R. v. Green (Unreported, 20 October 2021), in which Durno J. considered whether a conditional sentence was appropriate where the accused pled guilty to two charges: a) that he recruited, held, concealed, harboured, or exercised control, direction or influence over the movements of the victim to offer or provide sexual services for consideration contrary to section 286.3, and, b) that he received financial or other material benefit knowing that it was obtained directly or indirectly from the commission of an offence under section 286.1(1), contrary to section 286.2(1) of the Criminal Code.

[34] After reviewing Proulx, Durno J. said (at page 25, line 23 et seq.) that when considering a conditional sentence there are three things to consider: 1) is it legally advisable for these offences? 2) is it available in the circumstances of these offences? 3) Is it appropriate for these offences; in other words, is it a fit sentence?

[35] With respect to the first question, the Court of Appeal decided that a conditional sentence is available with respect to the human trafficking provisions at the Criminal Code (see: R. v. Sharma, 2020 ONCA 478).

[36] With respect to the second question, is a conditional sentence is available in these circumstances? To answer this question in the affirmative, three prerequisites must be satisfied and not contested:

a) there is no minimum term of imprisonment; b) the fit sentence is less than two years; and c) the safety of the community would not be endangered by the offender serving the sentence in the community.

[37] Once these three questions have been answered in the affirmative, the sentencing Judge must give serious consideration to imposing a conditional sentence. Whether one is appropriate, that is a fit and proper sentence, is determined by assessing whether a community-based sentence would be consistent with the purposes and principles of sentencing, above.

[38] To determine whether a conditional sentence is appropriate, the sentencing judge must apply subparagraphs 8 through 11 of paragraphs 127 of Proulx.

[39] I find that a fit sentence in this case is NOT fewer than two years. In coming to this conclusion, I am cognizant of the conflicting considerations that weight in favour and against a conditional sentence.

[40] Dealing first with those factors that weigh in favor of a conditional sentence, Mr. Williams is a first-time offender with little likelihood of reoffending. He has exemplary character references. He is devoted to his family, and they are devoted to him. Since his arrest, he has been pro social. He has an active faith which he practices. He is in a long term committed relationship for over a year. He has no children as he and his partner have deferred that decision pending the outcome of the charges, sentencing, and a contemplated appeal. They hoped to build a family together, however.

[41] Mr. Williams, since the death of his mother, has looked after his septuagenarian father who has cardiac problems and is a diabetic. Mr. Williams is unemployed and receives Ontario Works. He is reported to be a talented graphic artist, having performed services in designing graphic materials for several businesses. He volunteers at his church and other organizations, helping the homeless by assembling and giving out bundles that include personal hygiene products, food and clothes. This activity fits with a new purpose he has discovered since his arrest.

[42] Mr. Williams, as a black man of small physical stature, was psychologically and physically bullied while at school. He is an introvert. Notwithstanding the treatment he received as a child and young man, Mr. Williams (aside from these charges) is reported to be well-adjusted. He assisted with the care of his chronically ill mother during her declining health and death.

[43] On the other hand, the charges are most serious and the impact on S.B. serious and long-lasting. Mr. Williams abused their relationship. I find that he knew that S.B. considered them to be romantic partners. He used her belief in their relationship to convince her to re-enter the sex trade. He controlled al business aspects of the sale of S.B.’s sexual services (except advertising) and kept the vast majority of the proceeds. He set the days that she was to work, and the hours on those days to be worked. He negotiated what she was to do and for what money. If she took time off for any reasons, she was expected to pay him for the loss of revenue.

[44] I accept that the impact of a conditional sentence for an extended period on Mr. Williams will be significant impact. I also accept that incarcerating Mr. Williams institutionally will have a significant effect on his father who relies on Mr. Williams. However, I adopt the comments of Durno, J in Green (in which restitution played an important part), at page 21, line 17,

However, these offences are most serious and ones for which the need to stress general deterrence and denunciation are most important. The restitution will reduce the jail term, but to say that restitution tips the balance and for these offences along with the other factors results in a community-based sentence I find would be inconsistent with the purposes and principles of sentencing. To hearken back to an earlier reference, I find a conditional sentence would not reflect the gravity of the offence, the offender's degree of responsibility and the unique circumstances of each case. As the Supreme Court of Canada said in Proulx:

There may be some circumstances... where the need for denunciation [and] deterrence is so pressing...incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future.

[45] I find that Mr. Wiliams’ case is one of those circumstances where the need for denunciation and deterrence is so pressing that incarceration is the only suitable way with which to express society’s condemnation of Mr. Williams’ conduct and to deter such conduct by others. Parliament intentionally determined that prostitution is illegal. Those involved (other than the seller of her own services) have a parasitic relationship through which they seek to exploit the person selling the services. Prostitution is inherently violent (even in only psychologically).

[46] Mr. Williams’ father’s condition and reliance on Mr. Williams is a factor I have considered. However, the fact that Mr. Williams’ father is dependent on him does not diminish Mr. Williams culpability or the seriousness of his offences, nor does it detract from the goals of denunciation and general deterrence (see by corollary: R. v. Spencer, 2004 5550 (Ont. C.A.) at para. 46 to 47).

Issue 3: What is the appropriate range of sentence in these circumstances?

[47] The case law provided by the parties supports a range of sentence of between 1 and 5 years for each of the offences. For a first time offender who pleads guilty to the offices the range appears to be between 1 and 3 years. The parties agree that the sentences run concurrently.

Issue 4: What is the appropriate sentence?

[48] Sentencing is an individualized endeavour based on the facts of the case, the seriousness of the offences, and the circumstances of the offender. The sentence must address the purposes as set out in s. 718 of the Criminal Code, be that which is minimally necessary to meet those purposes and be proportional.

[49] I find that the appropriate sentence in this case is 28 months for the conviction for harbouring under s. 286.3 and 20 months for receiving financial or material benefit under s. 286.2, to be served concurrently.

[50] In reaching this decision I have considered the mitigating, aggravating, and neutral circumstances listed below. I have also considered the impact on S.B. and Mr. Williams’ status as a black man, the post-verdict delay, and the overall passage of time since the charges were laid.

Mitigating circumstances:

[51] I consider the following to be the mitigating factors:

1. Mr. Williams is a first offender.
2. He is a young, black man, who was the subject of racism, including losing a job because of his race.
3. He has no criminal record.
4. He has endured 7 years on bail, without incident.
5. His father, two sisters, girlfriend, and extended family are all devoted to him and he to them. They have supported him throughout his charges and trial.
6. He has done extensive volunteer work since he was charged.
7. He has no addiction issues. He did not ply S.B. with drugs or alcohol.
8. He is the main caregiver for his septuagenarian diabetic father.
9. There appears to be little risk of reoffending.

[52] Mr. Williams submits that the following were also mitigating factors. I explain why I disagree with each:

1. There was no recruitment or grooming. S.B. was a willing participant. I accept S.B.’s evidence that she had left the sex trade by the time she met Mr. Williams. She only re-entered it to help him raise money for their future together. She thought that they were romantic partners, a factor which he exploited.
2. S.B. was the main driver in the enterprise. Mr. Williams was little more than a booking clerk or receptionist. As I have indicated already, Mr. Williams controlled the enterprise almost from the outset.
3. It was not a sophisticated enterprise. It was, to the extent that he controlled all aspects of the business of the sale of S.B.’s services.
4. There was no coercion, violence or intimidation. S.B. was a willing participant. Mr. Williams exploited S.B.’s belief that she and he were in a loving relationship. He was not in anything but an exploitative relationship with S.B. Violence was psychological. It was a breach of trust.

Aggravating Factors:

[53] I consider the following to be the aggravating factors.

1. While Mr. Williams used no overt threats of violence against S.B., he knowingly exploited S.B.’s belief that they were in a romantic relationship in order to control her. He abused a relationship of trust.
2. He controlled every aspect of the sale of S.B.’s sexual services and, shortly after S.B. began selling sexual services again, kept all of the revenue, paying her only small amounts as he deemed it necessary. He made the appointments, negotiated with clients, and set prices. He convinced S.B., against her judgment, to perform sexual acts without a condom. He dictated the days she would work, and the hours she would work and required her to pay him for any time she took off.
3. A third party’s involvement in the sale of sexual services of another is inherently exploitative. It is also violent, even if only psychologically so. He exploited S.B. for his personal gain. He was motivated by greed. He used S.B. as his piggy bank.
4. He arranged for the two of them to travel to at least one other city so that S.B. could sell sexual services. Presumably, he went so he could exercise his desired control.
5. His actions lasted 4 to 5 months.
6. The impact on S.B. has been severe and long lasting. She still suffers the effects of her involvemet with Mr. Williams 7 years after the events.

Neutral Factors

[54] I consider the following to be neutral factors:

1. He insisted, as is his right, for a trial.
2. He continued to deny his guilt, according to the 22 February 2022 PSR.
3. He refused to discuss the charges with any of the three PSR reports, mainly because he was contemplating an appeal.

PSR’s & References

[55] Mr. Williams has the support of an extended family and was employed until just before the events giving rise to these charges. Since then, he has volunteered at several agencies or associations aiding the homeless and needy. All his references point out how out of character the events leading to these charges are.

[56] The PSR writers assess Mr. Williams’ risk of re-offending as low.

[57] He is a loving and attentive son. He assisted with his mother’s care after she fell ill, until her death in 2018, which affected him badly. Since then, he has been the main caregiver to his septuagenarian, diabetic father.

Enhanced PSR

[58] Mr. Williams’ counsel commissioned an enhanced PSR.

[59] Mr. Williams’ family emigrated from Trinidad to Canada in 1972. They had little, but his parents worked hard to support three children in a moral, comfortable life in Canada. Mr. Williams, Sr., was a teacher in Trinidad, but qualified as a nurse in Canada and found employment as such. Mrs. Williams worked for 30 years before taking medical leave because of advanced arthritis. Because of her arthritis, by age 4 or 5, Mr. Williams began to assist with his mother’s care, forcing Mr. Williams to grow up faster that necessary. This meant that his childhood was curtailed.

[60] Mr. Williams reported being raised in a good, middle-class home, raised by loving parents who worked hard to provide a comfortable life for the family.

[61] Mr. Williams obtained a college certificate in graphic design and worked in high end graphic design, creating designs for t-shirts, window displays and designing “swag”. In his last job, as he gained more management experience, he began to experience disrespect and mistreatment because of his race. He was the only black employee at his workplace. The enhanced PSR describes what may have been a racially related physical altercation. He left the company.

[62] Mr. Williams reported that during his youth, as a small black man who wore thick glasses because of his nearsightedness, he was frequently bullied. At school, he felt neglected and marginalized, or “pushed to the back of the class.” He was told he had a learning disability, which he denied. Ultimately, he completed high school in 2009, then attended Durham College for 4 years to complete a 3-year course in graphic design. He attributed the extra year as required because of racism and teachers who made his life difficult. He was the only black man in his class.

[63] Because of the bullying, Mr. Williams did not have many friends at school. He was reluctant to bring friends home fearing that they would not understand his mother’s condition. Because of his obligations caring for his mother, he felt that he missed out on a lot and did not have a normal life. He never thought he fitted in. He was also robbed by his peers more than once. When his mother called the police after one robbery, Mr. Williams said he was labelled as a ‘snitch’ and was physically attacked by one of his peers. Once, they tried to stuff him into the trunk of a car.

[64] Following the charges, Mr. Williams lost friends.

[65] Mr. Williams says that the delays in this case are detrimental to him. He has had difficulty dealing with his emotions. Including mood swings and depression. He is angry. He grieves the loss of jis personal aspirations, goals, and character development. He has had to seek counselling.

Impact on the Victim

[66] S.B. read to her victim impact statement into the record. As a courtesy to her, I will not review it in detail. Her involvement with Mr. Williams has had a profound and lasting effect on her. Because of Mr. Williams’ breach of her trust, she no longer trusts men. She is fearful, both for herself and her son. She is fearful in public and of people who remind her of Mr. Williams. These sequelae of her involvement with Mr. Williams have now lasted over seven years.

Mr. Williams is a Black Man

[67] Mr. Williams is a black man of small stature. The enhanced PSR indicates that in Mr. Williams’ view, his race and his stature meant that he was bullied physically and emotionally throughout his growing up. He is also of the view that race made it more difficult for him to obtain and maintain employment.

[68] There was no evidence, direct or indirect, that Mr. Williams’ raced played any role in his conviction on the two counts on which he was found guilty. However, in sentencing Mr. Williams, I am aware of and have considered the fact that black men face more social and economic challenges than non-black men and are charged more frequently that men from other racial groups, convicted more frequently, sentenced to longer periods, and face racial challenges when incarcerated.

Post Verdict Delay

[69] As indicated in my earlier reasons on Mr. Williams’ 11(b) Application, in this case post-verdict delay is to be considered with respect to the length of the sentence.

[70] In this case, however, post-verdict delay does not affect the length of the sentence, for two reasons. First, I found that any post-verdict delay was caused by the approach Mr. Williams took to bringing his own applications. Second, I found that the time taken for post-verdict Applications was reasonable.

Overall Time Since the Charges Were Laid

[71] Mr. Williams urges me to consider on sentencing the seven years that these charges have been outstanding up to now. Mr. Williams’ life and pursuit of his goals and dreams has been put on hold for 7 years. He has suffered psychologically and financially for that time.

[72] I have accounted for this factor in determining the sentence. However, this factor weighs only slightly in fixing the term of sentence. Both parties, on a Jordan analysis, have an obligation to move the matter along. As both Harris, J and I have indicated in our respective 11(b) decisions, much of the delay in the past 7 is Mr. Williams’ delay.

Conclusion

[73] While the range for sentence of similar offences is between 1 to 5 years, it appears to be 1 to 3 years for a first-time offender faced with the two convictions Mr. Williams faces. The two most relevant cases in my analysis are R. v. Green and R. v. Meshreky, in both of which the accused was a first-time offender, was charged with similar (if not the same) offenses, and received 14 months, and two years (with 18 months’ probation), respectively. In both of those cases, the offender pled guilty to the offences, a factor which weighed heavily in the sentencing analysis in each case.

[74] In this case, Mr. Williams, as was his absolute right, insisted on a trial. This resulted in an acquittal on the charges of uttering threats and advertising.

[75] I find that the most just, fair, and appropriate sentence in this case is 28 months for the conviction for harbouring under s. 286.3 and 20 months for receiving financial or material benefit under s. 286.2, to be served concurrently. There will also be a no contact order for three years under s. 743.21 of the Code, and a DNA order under s. 286.2 and 286.3 of the Code.

Trimble J. Released: August 14, 2023