COURT FILE NO.: CR-21-068 DATE: 20230929

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – MARK TAYLOR Defendant

Counsel: Jenna Dafoe, for the Crown Craig Zeeh, for the Defendant

HEARD: July 13, 2023

REASONS FOR SENTENCE

Delivered Orally

CASULLO J.:

Overview

[1] Following a non-jury trial, I found Mark Taylor guilty of the following 18 Criminal Code offences on a 23-count indictment:

• Three counts of human trafficking (s. 279.01)
• One global count of financially benefitting from human trafficking (s. 279.02)
• One global count of receiving a material benefit from human trafficking (s. 286.2)
• One global count of advertising (s. 286.4)
• Five counts of exercising influence (s. 286.3)
• Two counts of sexual assault (s. 271)
• Four counts of obtaining sexual services for consideration (s. 286.1)
• One count of breaching recognizance (s. 145(5)(a))

[2] I found Mr. Taylor not guilty on one count of human trafficking and two counts of exercising influence.

[3] At the close of the Crown’s case at trial, one count of human trafficking and one count of obtaining sexual services for consideration were withdrawn.

[4] The sentencing hearing was held on July 13, 2023, and adjourned to this date for imposition of sentence.

The Legal Parameters and the Positions of the Crown and Defence

[5] A section 279.01 offence is punishable by a maximum penalty of 14 years imprisonment.

[6] A section 279.02 offence is punishable by a maximum penalty of 10 years imprisonment.

[7] A section 286.2 offence is punishable by a maximum penalty of 10 years imprisonment.

[8] A section 286.4 offence is punishable by a maximum penalty of 5 years imprisonment.

[9] A section 286.3 offence is punishable by a maximum penalty of 14 years imprisonment.

[10] A section 271 offence is punishable by a maximum penalty of 10 years imprisonment.

[11] A section 286.1 offence is punishable by a maximum penalty of 5 years imprisonment.

[12] A section 145(5)(a) offence is punishable by a maximum penalty of 2 years imprisonment.

[13] The Crown submits that, in all of the circumstances, a significant penitentiary term is required to ensure the relevant sentencing purposes applicable to human trafficking-related offences – denunciation and deterrence – are achieved. The Crown seeks a total sentence of 23 years in a penitentiary, less pre-sentence custody.

[14] The Crown also seeks the following ancillary orders: DNA, s. 109 for 10 years, SOIRA for 20 years, s. 743.21 orders (all seven complainants), s. 738 standalone orders (for six complainants), forfeiture of Mr. Taylor’s seized devices, and a victim surcharge fine.

[15] Mr. Taylor submits that the following sentence is an appropriate one: 9 years, less pre-trial custody and Duncan credit; a conditional stay for counts 6, 10, and 20 (procuring) pursuant to Kienapple, DNA, s. 9 for 10 years, SOIRA for 20 years, and s. 743.21 orders (all seven complainants).

[16] Mr. Taylor asks that the Court not impose a restitution order and waive the victim surcharge fine.

[17] Mr. Taylor agrees that any device used in the operation of his escort business be forfeited, but asks that all other devices be returned.

The Kienapple Principle

[18] McCarthy J. addressed conditional stays in R. v. Salmon, 2019 ONSC 1574, at para. 32:

The rule against multiple convictions for the same crimes was established by the Supreme Court in R. v. Kienapple (1994), [1975] 1 S.C.R. 729 (S.C.C.) at pp. 744-745. Laskin J. set out the principle that multiple convictions are precluded for related offences arising from the same delict or factual situation. In R. v. Prince (1986), 30 C.C.C. (3d) 35 (S.C.C.), the Supreme Court of Canada held that the rule against multiple convictions applies only where there is a relationship of sufficient proximity between the facts and between the offences that form the basis of the charges against the accused. The requirement for a factual nexus will usually be satisfied if the same act of the accused grounds each of the charges. A legal nexus is satisfied if the offence for which a conviction is sought does not contain any additional and distinguishing element that goes to guilt. I find it abundantly clear that there is that relationship of sufficient proximity between the facts and between the offences that form the basis for the convictions of counts 1 through 4. I find the factual matrix underpinning the conviction on count 3 to be integral to, and wrapped up in, the same factual matrix as count 1. The charges are almost entirely based upon the sexual services offered by AB for profit in that window of time framed by the evidence. I find that the factual matrix underpinning the conviction on count 4 to be integral to, and wrapped up in, the same factual matrix supporting the conviction on count 2. The sexual services out of which profits were reaped were the essential component of the human trafficking. Moreover, the essential legal elements of the offences in counts 2 and 4 are practically the same. Multiple convictions as between these counts would offend the Kienapple rule.

[19] Appling the Kienapple analysis, the factual matrix grounding the convictions for procuring also grounded the convictions for human trafficking. Accordingly, the three counts of procuring where a human trafficking conviction has been registered in respect of the same complainant, namely counts 6, 10 and 20, are conditionally stayed.

The Offences

[20] I will not repeat the findings of fact contained in my Judgment (R. v. Taylor, 2023 ONSC 1101), but will refer to them as necessary.

[21] The magnitude of Mr. Taylor’s business is staggering. Nite Candy was an escort service he ran out of his home. Over its 13 years of operation, Mr. Taylor estimates he hired over 500 women as sex workers, although he never had more than 15 working at a time. The women learned about Nite Candy in any number of ways – advertisements in local newspapers, or online sites such as Backpage and LeoList.

[22] Banking records show that large amounts of money were received by e-transfers and credit card payments. However, each witness testified that this was primarily a cash business, and these profits are not reflected in the records.

[23] Mr. Taylor testified that he made $55 from each call a girl was sent on. From this he had to pay his drivers and dispatchers, some of whom he employed full time. Based on a conservative estimate of 75 hours of booked calls a week, it is the Crown’s position that Mr. Taylor made at least $1.7 million between 2012 and his arrest in 2020.

[24] Seven complainants came forward to give evidence: MCP, ODC, CM, NE, SD, VT and AM.

[25] With the exception of AM, each woman presented with her own constellation of challenges. They were young (between 20 and 23 years old), reliant on social assistance, two had children with the spectre of detection by the Children’s Aid Society (“CAS”) omnipresent, some had mental health issues, and most struggled with substance abuse issues.

[26] Mr. Taylor referred to himself as “boss” and exercised his power and authority over the sex workers. He controlled virtually every aspect of the agency, including the advertising, the rank the girls would be assigned (Diamond, Platinum, Premium), what calls the girls were assigned to, what rates they would charge, how much money they earned, and how the money was to be collected. He would reassign rankings on a whim, and withheld work if they did not want to go on calls.

[27] The sex workers were forbidden to see Nite Candy clients on their own. To Mr. Taylor they were his clients, not the girls’.

[28] He initially sold drugs to the girls who wanted them, but after a bust in 2013 for oxycontin, he parsed this aspect of his business out to his drivers.

Background of Offender

[29] Mr. Taylor, 51 at the time of trial, was between 40 and 49 during the offence period.

[30] Pursuant to the Pre-Sentence Report (“PSR”), Mr. Taylor grew up in a pro-social family. He did well in school until he fell prey to peer pressure and began doing drugs. He was suspended a number of times, eventually dropping out of grade 9 without obtaining any credits. He received ODSP for 8 years for anxiety and panic attacks.

[31] Mr. Taylor has the support of his 75 year-old mother, who has dementia and is in need of care. Mr. Taylor intends to move in with her upon his release and to support her.

[32] His father and brother both passed away after suffering severe health issues; Mr. Taylor found his brother’s body when he died. This period caused Mr. Taylor much stress, as at the same time he was raising his son (born in 2009), and running his escort business.

[33] Mr. Taylor’s son lived with him until he was incarcerated, and he now lives with his mother CC. CC met Mr. Taylor in 2005 when he hired her as an escort for Nite Candy.

[34] Prior to the subject charges Mr. Taylor had two possession convictions.

[35] After his arrest on March 20, 2020, Mr. Taylor was released on a recognizance with conditions, including that he not advertise the sexual services of others. It eventually came to the attention of the investigators assigned to the case that Mr. Taylor was actively running Nite Candy. Mr. Taylor was arrested again in September of 2020, and has remained incarcerated since then.

[36] At the close of sentencing submissions, Mr. Taylor addressed the Court. He began by describing the difficulty of being incarcerated during the pandemic. This was not a bid for sympathy, but his comments did shine light on the significant challenges faced by inmates in the early stages of the pandemic.

[37] Once the lockdowns decreased in 2022, Mr. Taylor was able to move beyond “survival mode” and was able to come to terms with his incarceration. He took courses as they were offered and obtained his high school diploma. He expressed a desire to further his education upon his release.

[38] Mr. Taylor also described how difficult it was to watch his brother and father waste away from diabetes. He ascribes some of his behaviour to his inability to deal with his grief following their deaths.

[39] He described feeling intense shame and regret for his actions. He said he was incredibly sorry, and that he should have treated the young women he hired with greater respect. He also should have empathized with their circumstances. Tellingly, he articulated how the sex trade industry uses people up and discards them cruelly.

[40] Two letters of support for Mr. Taylor were submitted, one from a family friend, the other from his son’s aunt.

[41] Mr. Taylor believes he is on the path to rehabilitation, but does not think that further carceral time will assist him with this journey.

Impact on the Victims

[42] Five of the seven women gave victim impact statements. MCP, CM and NE read theirs in Court; the Crown read in those of VT and SD. While ODC did not give a statement, her evidence at trial spoke to the harm caused by Mr. Taylor. The seventh complainant, AM, did not consider herself to be a victim of Mr. Taylor.

[43] What was striking in each statement was the depth of despair, rage and anger harboured against Mr. Taylor. Wave after wave of emotion, their collective statements created a tsunami, with each woman railing at what Mr. Taylor extracted from her.

[44] Words used to describe their experience of Mr. Taylor included:

damaged, degraded, changed, isolated, object, exploited, manipulate, alone, burnt out, drugs, fear (of intimacy, of exposure, of retaliation), disease, suffering, PTSD, depression, anxiety, eating disorder, distrust, paranoid, trauma, monster, STD, financial stress, addiction.

[45] There was also courage and determination, as the women described the challenges of coming to terms with what they had suffered, and their journey toward healing.

[46] It is clear that the impact of the offences on each of them has been overwhelming.

Principles of Sentencing

[47] The fundamental principles and purposes to be considered by courts in sentencing are set out in ss. 718 to 718.2 of the Criminal Code.

[48] Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society.

[49] As set out in s. 718, the objectives of sentencing include: the denunciation of unlawful conduct; deterrence of the offender and others from committing further offences; separation of the offender from society where necessary; rehabilitation of the offender; reparation for harm done; and the promotion of a sense of responsibility in the offender, including acknowledgment of the harm done.

[50] Section 718.1 of the Criminal Code speaks to the overarching principle of sentencing, namely that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[51] In R. v. Bissonnette, 2022 SCC 23, at para. 50, the Supreme Court of Canada held that sentencing must in all circumstances be guided by the cardinal principle of proportionality. The sentence must be severe enough to denounce the offence but must not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence.

[52] Section 718 of the Criminal Code sets out a number of specific principles that a court must consider when imposing sentence, including:

(a) the principle that a sentence should be increased or reduced to take account of any mitigating or aggravating circumstances the court finds to exist in respect of the matter before it;

(b) the parity principle, which requires that a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances;

(c) the restraint principle, which requires that an offender should not be deprived of liberty if a less restrictive sanction is appropriate; and

(d) the principle that all available sanctions other than imprisonment should be considered if they are reasonable and consistent with the harm done to the victim and the community.

[53] While all principles of sentencing are of equal import, for crimes involving personal violence, the objectives of denunciation and general deterrence gain prominence: R. v. Ijam, 2007 ONCA 597, at para. 56, R. v. Augustin, 2022 ONSC 5901, at para. 86, and R. v. McEwan, 2023 ONSC 1608, at para. 76.

[54] Rehabilitation and restraint are also relevant considerations.

Human Trafficking – The Silent Scourge

[55] In R. v. Lopez, 2018 ONSC 4749, at para. 52, Campbell J. captured the essence of human trafficking, describing it as “inherently exploitive, coercive and controlling actions of pimps in relation to prostitutes”:

The unfortunate contemporary reality of the sex trade is that male pimps typically are involved in the exploitation, degradation and subordination of women. At its most basic level, it is a form of slavery, with pimps living parasitically off the earnings of prostitutes. Pimps exercise their control over prostitutes by means of a variety of tactics including emotional blackmail, verbal abuse, threats of violence and/or pure physical violence and brutality. The prostitutes that are the subject of this coercive exploitation are typically vulnerable and disadvantaged women, who have been manipulated and taken advantage of by the pimp. Even in cases where their initial participation in the sex trade is voluntary, including perhaps their business association with the pimp, and adopted for reasons of perceived increased security and safety in an inherently dangerous line of work, the relationship invariably becomes one-sided and exploitive. Prostitutes are ultimately forced, in one way or another, to provide sexual services for money in circumstances where they would not otherwise have agreed to such services, and the money earned from those sexual services is collected by the pimp. Accordingly, in a very real and practical sense, pimps traffick (sp) in the human resources of prostitutes, callously using their sexual services as an endlessly available commodity to be simply bought and sold in the marketplace. Accordingly, pimps have been aptly described as a ‘cruel, pernicious and exploitive evil’ in contemporary society.

[56] Sex trade workers are considered a vulnerable class of individuals. This is illustrated in Canada (Attorney General) v. Bedford, 2013 SCC 72, Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, and R. v. Barton, 2019 SCC 33. For many in the sex trade, prostitution is not necessarily a free choice, as explained in Bedford 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).

[57] In R. v. Miller, [1997] O.J. No. 3911 (Ont. C.J.), Hill J. noted, at paras.36-37:

The relationship between a pimp and a sex trade worker is almost inevitably inherently coercive and exploitative. The degrading domination of the pimp perpetuates the sex workers lack of self esteem and self worth. Street pimps promulgate violence as their primary control mechanism. Other pimps, particularly those administering adult entertainment or escort service operations, employ more subtle pressure including preying upon economic dependence of the sex workers employed. In other words, the demonstration of domination varies from case to case….

Quite appropriately, in Attorney-General’s Reference (No. 2 of 1995) [1997]. I Cr. App. R. 72 C.A.) at 76-77, the court held that a pimp operating an agency offering sexual services can exert influence upon a sex trade worker without compulsion or persuasion.

[58] In R. v. Antoine, 2020 ONSC 181, at para. 29, Lemay J. cites Wein J. in R. v. A.A. [2012] O.J. No. 6256, at paras. 32 and 33, who described the perpetrators of human trafficking 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.

[59] In Lopez, at paragraph 53, Campbell J. provided a non-exhaustive list of factors, often referred to as the Tang/Miller factors, garnered from the sentencing jurisprudence, that are to be considered in arriving at an appropriate sentence befitting the circumstances of the case. Those factors include:

(1) The degree of coercion or control imposed by the pimp on the prostitutes' activities;

(2) The amount of money received by the pimp and the extent to which the pimp allowed the prostitutes to retain their earnings;

(3) The age and number of the prostitutes;

(4) Any special vulnerabilities of the prostitutes;

(5) The working conditions in which the prostitutes were expected or encouraged to operate, including their physical surroundings in terms of soliciting and servicing customers;

(6) The degree of planning and sophistication, including whether the pimp was working in concert with others;

(7) The size of the pimp’s operations, including the number of customers the prostitutes were expected to service;

(8) The duration of the pimp’s exploitive conduct;

(9) The extent of the violence, if any, apart from that inherent in the pimp’s parasitic activities;

(10) The extent to which inducements such as drugs or alcohol were employed by the pimp;

(11) The effect on the prostitutes of the pimp’s exploitation;

(12) The extent to which the pimp demanded or compelled sexual favours for himself from the prostitutes;

(13) The age of the customers attracted to the services of the prostitute;

(14) Any steps taken by the pimp to avoid detection by the authorities; and

(15) Any attempts by the accused to prevent the prostitute from leaving his employ.

Range of Sentences

[60] It is not lost on me that the range of sentences for human trafficking-related offences has been trending upward in recent years. This increase is in lockstep with the enactment of Bill C-36 (Protection of Communities and Exploited Persons Act, S.C. 2014, c. 25), and the “paradigm shift” from viewing prostitution as a nuisance-based offence, towards treating it as a form of sexual exploitation: Lopez, at para. 54.

[61] In R. v. S.M., 2023 ONCA 417, at para. 28, the Court of Appeal held that five and a half years is at the lower end of the range for this type of offence (human trafficking and assault in respect of one complainant).

[62] In R. v. McEwan, 2023 ONSC 1608, Di Luca J. examined a number of cases in assessing the range of sentence for the offence of human trafficking. I agree with and adopt his conclusion that the range is between four to eight years. A number of considerations informed where a sentence fell, with guilty pleas and mitigating factors at the lower end, and related criminal records and violence at the higher end: McEwan, at para. 80.

[63] The Supreme Court of Canada has observed that the principle underlying the notion of a sentencing “range” is to ensure parity of sentences between offenders who have committed similar crimes in similar circumstances: R. v. Lacasse, 2015 SCC 64, at paragraph 57.

[64] The Court in Lacasse emphasized, however, that a sentencing range is simply a guide for the application of the relevant sentencing principles and objectives. A sentencing range should be seen as a historical portrait for the use of the sentencing judge, who must still exercise her discretion in each case. This reflects the individualized nature of the sentencing process: the consideration and balancing of the factors related to the offences, the personal circumstances of the offender and the applicable principles set out by Parliament in the Criminal Code. Sentencing has thus been described as a process that is “far from being an exact science or an inflexible predetermined procedure”: R. v. L.M., 2008 SCC 31, at para. 17.

Concurrent versus Consecutive Sentences

[65] The Criminal Code states that all sentences are concurrent unless the trial judge specifically orders the sentence to be served consecutively.

[66] Section 718.2 of the Code states that “when consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.”

[67] In deciding whether to impose consecutive or concurrent sentences, the general rule is that offences which are so closely linked to constitute a single criminal venture may, but will not always, receive concurrent sentences.

[68] When consecutive sentences are imposed, the principle of totality requires that the sum of the consecutive sentences does not exceed the offender’s overall culpability: R. v. Friesen, 2020 SCC 9, at para. 157.

[69] As Boswell J. held in R. v. A.E., 2018 ONSC 471, at para. 40 (citations omitted):

Whether sentences are imposed concurrently or consecutively is a matter of judicial discretion. As Durno J. observed in R. v. McFarlane, concurrent sentences have been imposed in cases where the offences are “closely linked together”, “part of the same transaction or endeavour” or “part of the same course of conduct”. The Court of Appeal has held, however, that “the rule that sentences for offences arising out of the same transaction or incident should normally be concurrent”, does not necessarily apply “where the offences constitute invasions of different legally protected interests”.

[70] In R. v. Moazami, 2015 BCSC 2055 [1], the accused was sentenced to 23 years imprisonment for 30 counts of human trafficking-related offences involving 11 complainants. The Court stated, at paras. 42 and 137:

In my view, the most appropriate way to determine a fit sentence in this difficult case is to address each complainant separately, taking into account the mitigating and aggravating circumstances applicable to each complainant and in respect to [the accused’s] circumstances. While many of these factors are the same for all or most of the complainants vis-à-vis the offender, there are significant differences in terms of the nature of the offences, the vulnerability and ages of the victims, the duration of the offences, and the moral culpability of [the accused].

… [the accused’s] total sentence should not be calculated by imposing the sentences with respect to offences against some or all of the complainant’s concurrently. To do so would be the equivalent of giving [the accused] a reduced sentence because he inflicted harm on many young girls rather than only one or two. As the Court of Appeal has noted, crime should not be “cheaper by the dozen”. However, the totality principle demands that some reduction of the entire sentence imposed occur because otherwise it amounts to a harsh and oppressive jail term that is not befitting of [the accused’s] past criminal record, and would crush his prospects for any rehabilitation.

[71] Consecutive sentences can be handed down even where the offences are closely connected, because they constitute invasions of different legally protected interests: R. v. Boyd, [2016] O.J. No. 2584, at para. 3.

[72] In these circumstances, I find that the test for consecutive periods of imprisonment has been met, which will of course be subject to the overreaching principle of totality. Each of the complainants was recruited separately. Each was employed by Nite Candy at different times during the relevant offence period. With the exception of ODC and CM, the women did not know one another. Aside from “party calls,” where more than one sex worker was hired to provide services, each woman worked individually. Mr. Taylor charged different rates depending on the sex worker’s rank in the Nite Candy system.

Consideration of the Lopez Factors

[73] What follows is my analysis of the Lopez factors.

Degree of Control or Coercion

[74] The degree of control imposed by Mr. Taylor varied, but was significant in respect of MCP, ODC, VT, NE, and CM for a much shorter duration. Mr. Taylor controlled everything about the business. His position as “boss” gave him a significant amount of power over the women he hired. He took advantage of those with drug addictions by being their supplier. He encouraged VT’s drug abuse to increase her dependency on him. He threatened exposure to family and friends as a form of control. He threatened to expose MCP and VT as sex workers to CAS. He manipulated CM, VT and NE into having sex with him, and he forced himself on MCP and ODC. Aside from AM, and occasionally ODC, Nite Candy drivers would take the sex workers to the call, and wait for them to be finished so they could be taken to their next call. Drivers also took the sex workers to get their supplies (alcohol, lingerie, condoms, etc.).

Money Received

[75] Mr. Taylor set the rates for clients. The sex workers were able to retain a portion of their earnings, any tips, and any money they earned if they performed additional services. As noted at the outset, Mr. Taylor received $55 from every call.

Age and Number of Sex Workers

[76] Aside from AM, the complainants were all very young when they first started working for Nite Candy.

Special Vulnerabilities

[77] Each complainant had her own individual vulnerability. VT is indigenous, although there is no evidence that Mr. Taylor was aware of this. ODC, CM and NE have mental disabilities. VT, MCP and NE had substances abuse issues that Mr. Taylor took advantage of. VT and MCP were single mothers who had children at a very young age. Mr. Taylor was aware of all of each woman’s particular frailty.

Working Conditions

[78] This was some of the hardest evidence to listen to. MCP, ODC, CM, VT, and NE described at length the degrading conditions they were subjected to. Mr. Taylor sent the women out to the calls, but would not tell them where they were going unless they were acting as their own driver. There was no advance vetting of new clients. Mr. Taylor could blacklist clients at his discretion, but only after the girl had gone on a call and reported the client’s behaviour. Mr. Taylor created and nurtured situations that were extremely dangerous. For example, he knowingly sent NE into a gang club house to perform for a group of men, and would not let her leave when she called and asked to. He then sent her back another time, showing disregard for her safety. He sent VT back to a client after she told him that client had open sores and sexually transmitted diseases. The sex workers had to provide their own condoms. Mr. Taylor did not follow any labour or employment laws, nor did he educate the sex trade workers on their rights in the workplace.

Degree of Planning and Sophistication

[79] The scale of Mr. Taylor’s operation is difficult to quantify. It was a sophisticated, well organized business that operated for over a decade. He led the sex workers to believe it was a legitimate business, and that they needed him to operate. He created referral systems to encourage the women to recruit friends and family. The drivers were required to submit daily logs, and the dispatchers kept logs of calls.

Size of the Operation

[80] The exact number of clients is unknown, but the banking records show earnings of over $800,000. All electronic payments (e-transfers and credit card payments) went into Mr. Taylor’s bank accounts. Mr. Taylor did not have another source of income, although in the early years of Nite Candy he ran a gaming company that sold used video games and repaired electronics.

[81] Nite Candy had a system whereby dispatchers made more money if they booked more calls. Ms. Asmann-Brown, one of the Nite Candy dispatchers, testified that she would get a $50 bonus if she booked more than 20 calls in a shift, and a $100 bonus if she booked more than 30 calls. The business was lucrative enough for Ms. Asmann-Brown to leave her full-time job and work solely for Nite Candy, first as a dispatcher, and then as a manager. Mr. Buccellato, a driver for Nite Candy, testified that he worked 7 days a week, and would get 20 calls in any seven-day period. The evidence established he was not the only driver working every night.

Duration of the Operation

[82] Mr. Taylor exploited the women who worked for him for almost a decade based on the offence time periods. Nite Candy was a longstanding operation.

Degree of Violence

[83] The violence perpetrated by Mr. Taylor was covert. He created a culture of fear and dependency, yelling, belittling, name calling and berating many of the complainants. While he did not physically assault them, some witnessed physical abuse directed toward other sex workers. He sexually assaulted both MCP and ODC.

Drugs or Alcohol

[84] Mr. Taylor actively encouraged the use of drugs and alcohol amongst the sex workers, despite knowing some had substance dependency. However, the women walked a thin line, because Mr. Taylor would not tolerate excessive impairment, yet that was what some of the workers needed to get through their calls. When VT was in the depths of a full-blown methadone withdrawal at his home, instead of helping her get methadone [2], Mr. Taylor put an oxycontin pill in front of her, knowing she was so sick she would take it.

Victim Impact

[85] It is readily apparent, through the evidence at trial and the statements provided, that the complainants have been profoundly, and perhaps permanently, impacted by Mr. Taylor’s actions.

Personal Sexual Favours

[86] Mr. Taylor compelled, and even forced, sexual acts on the complainants. He callously used their bodies for financial gain and his own sexual gratification. The unspoken understanding amongst the sex workers was that if you slept with Mr. Taylor, you would get better calls.

Age of the Customers

[87] There was no evidence on this factor.

Steps Taken to Avoid Detection

[88] Mr. Taylor placed disclaimers on his advertising. He testified that the customer understood Nite Candy was simply selling time, and it was up to the individual girl whether she was prepared to do anything sexual. [3] Mr. Taylor used multiple cell phones. The vast majority of calls were performed at the clients’ home, providing a level of separation from the business itself. Mr. Taylor filed tax returns. His receipts often said the service provided was “technology servicing.” Large amounts of money were disguised as computer repairs.

Preventing the Sex Workers from Leaving

[89] Mr. Taylor used a variety of techniques to keep the women working for him. He would overtly threaten to expose them to family and friends, and specifically threatened to expose MCP and VT to CAS.

Mitigating and Aggravating Factors

[90] Section 718.2 (a) of the Code provides that a sentence should be reduced or increased for any relevant aggravating or mitigating circumstances.

Mitigating Factors

[91] Mr. Taylor comes from a pro-social family that experienced some hardships when certain members fell ill. However, these challenges did not lead Mr. Taylor down a path into criminality. His business was running before those issues came to light.

[92] Mr. Taylor has a short, dated, and unrelated criminal record.

[93] The PSR indicates that Mr. Taylor regretted being intimate with the women he hired.

[94] While in custody Mr. Taylor obtained his high school diploma, and participated in all 13 of the institution’s Educational Session booklets, including “Recognizing Healthy Relationships”, “Changing Habits”, and “Problem Solving”. This suggests Mr. Taylor may be rehabilitative.

[95] Mr. Taylor has some limited support in the community.

[96] Counsel for Mr. Taylor submits that Mr. Taylor did not know that the material benefits, procuring, and advertising counts were not offences in the Criminal Code when Nite Candy started. This, coupled with the fact that the lawful authority of said provisions has been ongoing since they were found to be unconstitutional (R. v. Anwar, 2020 ONCJ 103 and R. v. N.S., 2021 ONSC 1628 before N.S. was reversed (R. v. N.S., 2022 ONCA 160, 160 O.R. (3d) 401)), can be considered when reviewing the moral culpability for those offences.

[97] It cannot be strenuously argued that Mr. Taylor was ignorant of the law. In the PSR, Mr. Taylor acknowledges that he knew what he was doing was illegal when the new legislation was introduced, but he continued to operate Nite Candy despite this.

[98] I accept that the level of violence experienced by some victims in the sex trade is not a factor in this case: see, for example, R. v. Crosdale, 2019 ONCJ 3; R. v. H-O., 2022 ONSC 4900; Lopez; Vera Camacho c R., 2021 QCCA 683.

[99] Finally, the sex workers were permitted to keep a portion of their earnings, unlike some victims in the sex trade: see, for example, R. v. Downey, 2023 ONSC 3776, R. v. Burton, 2016 ONCJ 153. While this is a mitigating factor, in light of the vast amount of money Mr. Taylor made as the operating mind of Nite Candy, this moves the needle only marginally.

Aggravating Factors

[100] Many of the aggravating factors are highlighted in the Lopez analysis. Of particular note is the well-organized machine that was Nite Candy. Flourishing for at least a decade, it was a revolving door of desolation.

[101] The following additional factors must also be considered:

• The sheer number of victims and the extent to which Mr. Taylor exercised control over them. [4]
• Mr. Taylor’s use of a firearm to threaten ODC into delivering drugs to a client.
• As the pinnacle of Nite Candy’s food chain, Mr. Taylor bears a high degree of blameworthiness.
• Mr. Taylor abused his position as the “boss”.

[102] I acknowledge that Mr. Taylor expressed some regret. However, he shows no authentic understanding of the pain he wrought upon the complainants, the sexual violence he inflicted on them, or his wanton exploitation of them.

[103] Mr. Taylor was not a young man in his late teens or early twenties. He was in his forties during the relevant time period. Nor was he motivated by addictions or substance abuse. Nite Candy’s entire operation was profit-driven, centered around the commodification of women’s bodies.

[104] In Sentencing, 8th ed. Markham, Ont.: LexisNexis, 2012, Clayton Ruby notes that the courts will be less inclined to show leniency where there is a history of continued criminality:

The fact that criminal activity can be shown to have continued over a lengthy period of time will, in many cases, indicate that there has been a conscious and deliberate choice to engage in criminality.

Pre-Trial Custody Credit

[105] Mr. Taylor spent two days in custody before being granted bail. He was re-arrested on September 26, 2020, and as at the date of sentencing submissions, had remained incarcerated for 1,021 days, for a total of 1,023 days. To this must be added the period of time from sentencing submissions to the imposition of sentence today, or 79 days. Cumulatively, Mr. Taylor has been incarcerated for 1,102 days. Pursuant to R. v. Summers, 2014 SCC 26, he is entitled to receive a 1:5 to 1 credit for this period, which I calculate to be 1,653 days, or almost 4.5 years.

Duncan /COVID-19 Credit

[106] Mr. Taylor also asks that his sentence be reduced to reflect the harsh conditions he experienced while in pre-trial custody.

[107] As the Court of Appeal held in R. v. Marshall, 2021 ONCA 344, at para. 50:

…I propose to make some observations about the calculation of the “Duncan” credit. A “Duncan” credit is given on account of particularly difficult and punitive presentence custody conditions. It must be borne in mind the 1.5:1 “Summers” credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody: Summers, at paras. 28-29. The “Duncan” credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody. The very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a “Duncan” credit: R. v. Morgan, 2020 ONCA 279.

[108] The Court of Appeal further held that, rather than treating a Duncan credit as a quantified, numeric reduction of an otherwise appropriate sentence, it is better considered as one of the factors that ground an appropriate sentence’s determination: “particularly punitive pre-trial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors”: Marshall, at para. 52.

[109] Mr. Taylor has been imprisoned for virtually the entire pandemic. It is not a stretch to conceive of the struggles COVID-19 posed in a carceral setting. Indeed, this has been the subject of judicial commentary. For example, Quigley J. described the conditions during lockdowns as “shocking, unconscionable, and inhumane”: H-O. at para. 90.

[110] Mr. Taylor filed an affidavit describing the conditions he was subject to. During lockdowns the inmates were confined to their cell and only allowed out for short periods of time, to shower or make a phone call. This made access to basic hygiene and the outside world difficult. Lockdowns also fostered increased violence among the inmate population. Mr. Taylor was attacked over his position as a server.

[111] Precautions were implemented to prevent the spread of infection, including droplet protection, but this limited movement and reduced, or at times cancelled, yard time. Despite the precautions, Mr. Taylor contracted COVID-19 three times.

[112] According to Central North Correctional Centre’s records, and the calculations of counsel, Mr. Taylor was subjected to 371 lockdown days.

[113] Quigley J. reduced H.-O.’s sentence by 1.5 years. Justice Di Luca granted 180 days’ credit when McEwan was subjected to 147 lockdowns during the pandemic.

[114] Notwithstanding the Court of Appeal’s edict in Marshall, I have decided to assign a numeric value to the Duncan credit of 371 days. I do so to ensure Mr. Taylor is aware of the precise credit he is receiving, given the sheer number of guilty verdicts, each of which will be assigned an individual sentence, and the ultimate reduction when the totality principle is factored in.

Restitution Orders

[115] The Crown seeks the following standalone restitution orders pursuant to s. 738:

1. $20,000 for VT
2. $20,000 for NE
3. $15,000 for MCP
4. $5,000 for ODC
5. $5,000 for SD
6. $2,500 for CM

[116] Defence resists such an order, submitting that the amount of restitution is not readily quantifiable, and Mr. Taylor has limited means to pay. In support of his position, Mr. Taylor relies on Downey, where the Court was asked to infer that because he was on a legal aid retainer, Mr. Downey had limited funds (in that case, a victim surcharge fine).

[117] In R. v. Zelensky, [1978] 2 SCR 940, the Supreme Court of Canada adopted a non-exhaustive list of considerations when the Court is asked to include a restitution order. In particular, the sentencing judge must take into account the present and future means of an offender to make restitution, although that factor will not be controlling in every case. As s. 739.1 states, “the offender’s financial means or ability to pay does not prevent the Court from making an order under section 738 or 739.”

[118] One of the primary goals of restitution orders is to deprive the “offender of the fruits of his or her crime”: R. v. Devegan, para. 26.

[119] Before a restitution order is made, there should be some evidence the offender has the ability to pay. This evidence is missing. While the evidence produced at trial clearly demonstrates that Mr. Taylor made significant amounts of money during his reign at Nite Candy, the police have been unable to locate any funds in his name. We do know that Mr. Taylor became aware the police were investigating him in 2019, thus it is possible Mr. Taylor has squirreled his money away. But we will never know for certain.

[120] Restitution orders ought not to be imposed mechanically, particularly where the term of imprisonment is, in itself, a fit punishment: R. v. Castro, 2010 ONCA 718, at para. 23.

[121] Finally, restitution is meant to pay for pecuniary damages. There is no evidence before me quantifying any losses sustained by the complainants as a result of the harm imposed by Mr. Taylor (ie: loss of income or support): s. 738(1)(b) of the Criminal Code.

[122] While I believe that the complainants deserve to be compensated for the treatment they suffered at the hands of Mr. Taylor, restitution orders are not the appropriate vehicle to fulfil this purpose. As the majority held in Zelensky, restitution orders are not a substitute for a civil proceeding.

[123] There are civil avenues open to the complainants, two which come to mind. The first is a claim for damages for the tort of sexual assault, to which no limitation period attaches. The second is a claim for damages in relation to the statutory tort of human trafficking, pursuant to Part III of the Prevention of and Remedies for Human Trafficking Act, 2017, S.O. 2017, c 12, Sch 2. The two-year limitation period as set out in s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. may be applicable, subject of course to discoverability pursuant to s. 5.

Analysis

[124] I am satisfied, on these particular facts, having considered the aggravating and mitigating factors, that only a significant penitentiary term will satisfy the principles and purposes of sentencing.

[125] Those who profit from the commodification of women must be sent a message that their predatory behaviour is abhorrent. One way this message can be imparted is through a meaningful sentence.

[126] I have adopted the following chart, created by the Crown, adapting it to reflect both the fit sentence for each charge, and the final sentence adjusted for the totality principle.

VICTIM: MCP

• Count 5: Human Trafficking (279.01(1))
  • Fit and Appropriate Sentence: 8 years
  • Final Sentence Adjusted for Totality Principle: 4 years
• Count 6: Procuring (286.3(1))
  • Fit and Appropriate Sentence: 3 years
  • Final Sentence Adjusted for Totality Principle: Conditionally stayed on the basis of Kienapple
• Count 4: Sexual Assault (271)
  • Fit and Appropriate Sentence: 3 years
  • Final Sentence Adjusted for Totality Principle: 1 year (Concurrent)
• Count 7: Obtain for Consideration (286.1(1))
  • Fit and Appropriate Sentence: 6 months
  • Final Sentence Adjusted for Totality Principle: 6 months (Concurrent)

VICTIM: ODC

• Count 9: Human Trafficking (279.01(1))
  • Fit and Appropriate Sentence: 4 years
  • Final Sentence Adjusted for Totality Principle: 1 year (Consecutive)
• Count 8: Sexual Assault (271)
  • Fit and Appropriate Sentence: 3 years
  • Final Sentence Adjusted for Totality Principle: 1 year (Concurrent)
• Count 10: Procuring (286.3(1))
  • Fit and Appropriate Sentence: 3 years
  • Final Sentence Adjusted for Totality Principle: Conditionally stayed on the basis of Kienapple
• Count 11: Obtain for Consideration (286.1(1))
  • Fit and Appropriate Sentence: 6 months
  • Final Sentence Adjusted for Totality Principle: 6 months (Concurrent)

VICTIM: CM

• Count 13: Procuring (286.3(1))
  • Fit and Appropriate Sentence: 3 years
  • Final Sentence Adjusted for Totality Principle: 2 years (Consecutive)
• Count 14: Obtain for Consideration (286.1(1))
  • Fit and Appropriate Sentence: 6 months
  • Final Sentence Adjusted for Totality Principle: 6 months (Concurrent)

VICTIM: NE

• Count 16: Procuring (286.3(1))
  • Fit and Appropriate Sentence: 5 years
  • Final Sentence Adjusted for Totality Principle: 2 years (Consecutive)
• Count 17: Obtain for Consideration (286.1(1))
  • Fit and Appropriate Sentence: 6 months
  • Final Sentence Adjusted for Totality Principle: 6 months (Concurrent)

VICTIM: VT

• Count 19: Human Trafficking (279.01(1))
  • Fit and Appropriate Sentence: 8 years
  • Final Sentence Adjusted for Totality Principle: 4 years (Consecutive)
• Count 20: Procuring (286.3(1))
  • Fit and Appropriate Sentence: 3 years
  • Final Sentence Adjusted for Totality Principle: Conditionally stayed on the basis of Kienapple

OTHER OFFENCES

• Count 1: Material Benefit from Trafficking (279.02(1))
  • Fit and Appropriate Sentence: 4 years
  • Final Sentence Adjusted for Totality Principle: 2 years (Consecutive)
• Count 2: Material Benefit from Sexual Services (286.2(1))
  • Fit and Appropriate Sentence: 4 years
  • Final Sentence Adjusted for Totality Principle: 2 years (Concurrent to Material Benefit from Human Trafficking)
• Count 3: Advertising Sexual Services (286.4)
  • Fit and Appropriate Sentence: 1 year
  • Final Sentence Adjusted for Totality Principle: 1 year (Concurrent)
• Count 23: Breach of Recognizance (145(5)(a))
  • Fit and Appropriate Sentence: 1 year
  • Final Sentence Adjusted for Totality Principle: 6 months (Concurrent)

Total

• Fit and Appropriate Sentence: 59 Years
• Final Sentence Adjusted for Totality Principle: 15 years less pre-trial custody adjusted for totality principle

[127] Mr. Taylor is sentenced to a global custodial term of 15 years. From this shall be deducted 1,653 days for pre-sentence custody, and 371 days for a Duncan credit.

Ancillary Orders

[128] The following ancillary orders are also issued:

1. DNA Order: a. Primary designated offences: Counts 1, 4, 5, 6, 8, 9, 10, 13, 16, 19, and 20 b. Secondary designated offences: Counts 23 and 3;
2. s. 109 Weapons Prohibition for 10 years on Counts 4, 5, 6, 8, 9, 10, 13, 16, 19 and 20;
3. s. 743.21 Non-Communication Order for all seven complainants, and KK [5];
4. SOIRA on counts 4 and 8 for 20 years; and
5. Forfeiture Order, solely in respect of any devices used in Nite Candy’s operations.

Restitution Orders and Victim Fine Surcharge

[129] The Crown’s application for standalone restitution orders is dismissed.

[130] In the circumstances of this case, I decline to waive the victim surcharge fine.

CASULLO J.

Released: September 29, 2023

NOTE: The written version of these Reasons released this day is to be considered the official version and takes precedence over the oral Reasons read into the record. If there are any discrepancies between the oral version and the written version, it is the written version that is the official record to be relied upon.

Footnotes:

[1] I appreciate that this decision out of British Columbia is of no binding effect in Ontario. However, in my view it is the most analogous to the case at bar, given the large number of both complainants and charges laid.

[2] VT asked if one of the drivers could take her back to the clinic in Orillia. Mr. Taylor told her if she went back to Orillia, she would not get any more calls.

[3] See para. 316 of my reasons, where I found this narrative to be incongruous.

[4] For the purposes of clarity, “sheer number of victims” is meant to encompass only the seven complainants before me, not the many women who worked for Nite Candy over the years.

[5] KK was the eighth complainant, but she could not be located for trial. The Crown withdrew the charges laid in respect of KK, given there was little reasonable prospect of a conviction in her absence.