Indictment No. 21-00000101
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
v.
A.D
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE CONLAN
On October 25, 2023, at Milton, Ontario
APPEARANCES:
A. Stevenson Counsel for the Crown
A. Alawi Counsel for A. D
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
W I T N E S S E S
WITNESSES
Examination in-Chief
Cross-Examination
Re-Examination
E X H I B I T S
EXHIBIT NUMBER
ENTERED ON PAGE:
Reasons for Sentence
1
LEGEND [sic] Indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) Indicates preceding word has been spelled phonetically.
Transcript Ordered: October 26, 2023
Transcript Completed: October 27, 2023
Ordering Party Notified: October 30, 2023
WEDNESDAY, OCTOBER 25, 2023
R E A S O N S F O R S E N T E N C E
Part One: The findings of guilt. On October 4th, 2023, Ms. D entered a not guilty plea to count one aggravated assault, but a guilty plea to the lesser and included offence of simple assault contrary to section 266 of the Criminal Code.
And further, Ms. D entered a guilty plea to count two, being the charge of unlawful confinement. The guilty pleas followed a judicial pretrial conference that I conducted with counsel. On October 4th, the sentencing was adjourned to today's date, October 25th, 2023.
Part Two: The facts. The facts underlying the two findings of guilt are outlined in a very thorough agreed statement of fact that has been filed as an exhibit with the court. Because it is an exhibit, I will not read it verbatim but rather highlight a few portions of the agreed statement of fact.
On the 18th day of March 2021, Halton Police were called to a residence on a street in the Town of Oakville. There were two 911 callers. One caller was a student who heard moaning coming from some garbage bags found in the middle of the road. That caller thought that the sound might be an injured animal. She was worried however that it also sounded human.
Two other good citizens also called 911 after the victim, the woman who had been discarded in the middle of the street, appeared at their door. The victim S.R was injured, half naked and appeared to be in shock. The couple that had contacted 911 brought the victim, Ms. R, inside their home. They covered her with a blanket. They tried to determine what had happened to her. They took cell phone video of her, which video was shown in court and is part of the exhibits filed on the guilty pleas and the sentencing, and that video was ultimately turned over to the police. In that video the victim, Ms. R, can be heard saying the surname "R".
Mr. R was sentenced previously by this court as the main offender involved in the exploitation and victimization of Ms. R. First respondent police officers arrived at the home of the citizens who had called 911. The police officers entered the home and saw Ms. R dressed only in underwear and wrapped in a blanket. She was incoherent at times, mumbling or crying out. Police heard her say a name which included the surname "R" and the words "human trafficking".
Ms. R appeared, to the police, to be heavily intoxicated by alcohol or drugs. Police saw bruises and scratches on Ms. R's arms, legs, torso, head, and neck. Ms. R had a large goose egg over her right eye. She was not coherent enough to explain how she sustained the injuries. Ms. R was transported to the hospital for medical treatment. Her injuries were later photographed by the police.
Police were able to locate video surveillance at a local hotel from the early morning hours of March 18, 2021, that shed some light on how the victim, Ms. R, came to be at the door of the citizens who called 911. In that surveillance video, at 5:26 a.m., Mr. R makes several trips out of the hotel and puts belongings in the trunk of a car. Some of these belongings that Mr. R is seen placing in the trunk of the car were found among other items at the same location that Ms. R was dumped in the middle of the road.
Video surveillance from March 18, 2021, at 5:55 hours show the side door of the hotel opening and Ms. R, who appears to be unconscious and wearing only underwear, being dragged down the stairs to the pavement. Ms. D, the offender before the court, opens the door to the vehicle. Ms. R is thrown into the back of the vehicle by Mr. R.
Mr. R then punches Ms. R numerous times until he is ultimately restrained in some way by Ms. D.
Ms. D then returns to the inside of the hotel while Mr. R drives away in the vehicle with Ms. R in the back.
Ms. D later exits the hotel with some bags, gets in the vehicle and the vehicle leaves the hotel lot, with Mr. R driving.
In that video surveillance when Ms. R is dragged out of the hotel and down the stairs to the parking lot, it is Ms. D who is assisting in the dragging of Ms. R down the stairs. In the video, if one did not know better, one might think that Ms. R was either deceased or in some sort of comatose state, because she does not appear to move at all in the video, and looks like, as I have said in the past, a doll.
Aside from the victim Ms. R, Mr. R had arranged for one named S. W, a friend of Ms. R, to accompany Ms. R on an overnight call in March of 2021. Ms. W was living in Lindsay Ontario at the time. Mr. R elicited the assistance of Ms. D in the attempt to get Ms. W involved in this sex worker activity and, in fact, video surveillance was obtained showing Mr. R and Ms. D attending at Ms. W's residence in Lindsay on March 18, 2021.
On March 20, 2021 Mr. R was located at a hotel in Barrie, he was arrested, he was permitted by the Barrie Police to turn his phone over to a female that was with him, and that female was the offender before the court, Ms. D, consequently any evidence that was on R's phone was not available to the police. Ms. D did advise the police of her name. The police released Mr. R's property to Ms. D including the cell phone, the vehicle and its contents. Ms. D was picked up by another person named R. That is a very brief summary of the facts underlining the findings of guilt on the simple assault and the unlawful confinement.
Part Three: Circumstances of the offender. Ms. D is currently 30 years old. She is a Canadian citizen. She is the eldest of 5 children. She is, to her credit, a college graduate, having completed an animal care program at Sheridan College in 2019.
Ms. D has a lengthy history of mental health issues going back to when she was in her teens, serious enough issues that she was previously apprehended and confined under the authority of the Mental Health Act. She was prescribed medication and has been prescribed medication over the years for depression, anxiety, and grief. Ms. D also has a history of substance abuse, mainly alcohol. Tragically, Ms. D suffered the devastating loss of her younger brother. Ms. D's younger brother drowned when Ms. D was only 20 years old.
Ms. D has also experienced very strained familial relationships over her lifetime including with both of her parents at different times, and Ms. D has been a sex trade worker on and off since she was only 19 years old.
Part Four: The positions of the Crown and defence. Both sides have put forward reasonable positions on sentencing. This is a very unique case and a difficult one to decide. The Crown's position on sentencing is as follows: four to six months in custody, two years' probation, a section 109 Criminal Code firearms and weapons prohibition order for 10 years, a DNA order, and in terms of the probation order, the Crown has suggested terms that include, reporting, counselling, the signing of releases, and no contact with Mr. R and Ms. W.
Defence counsel has not taken issue with the ancillary orders requested by the Crown. Mr. Alawi submits that this court ought to seriously consider a sentence that does not include any custody for Ms. D, but that does include lengthy probation. Two years was the duration suggested by Mr. Alawi, including the terms sought by the Crown and the additional term of community service. Part Five: The mitigating factors. I consider the chief mitigating factors in this case to be Ms. D’s guilty pleas, her lack of any criminal record, the fact that she has been a sex trade worker and a victim herself, in particular, at the hands of Mr. R, in that Mr. R not only contributed to the destruction of the life of Ms. R but he exploited and victimized Ms. D. As well, in terms of mitigating factors, Ms. D is a statutorily recognized vulnerable person under the provisions of the Criminal Code as a black female, and she has undoubtedly experienced racism in her lifetime.
As well, in mitigation, Ms. D restrained Mr. R to the best of her ability on the video surveillance that I mentioned previously, when outlining the facts. Further, in mitigation, Ms. D has shown genuine expressions of remorse and full acceptance of responsibility, and in my view, a mature recognition of the tragic death of Ms. Rs and what that means for Ms. Rs' family. In the latter regard I am referring in particular to Ms. D's comments in the letter that was filed with the court marked exhibit 12, written by Ms. D. As well I note the letters from Ms. D's family members, exhibits 9 through 11, written by her father, her stepmother and her stepsister. I think those letters confirm that Ms. D has had a very difficult life and is hopefully on the road to a brighter future. As well, I take into consideration that Ms. D has been on fairly strict bail for more than two years with no issues.
In terms of Ms. D's status as a vulnerable person, a black female who has experienced racism in her lifetime, I would like to quote from paragraph 87 of the decision of the Court of Appeal for Ontario in the case of R.v.Morris 2021 ONCA 680, where the Court said that:
Evidence of anti-Black racism and its impact on the specific offender can be an important consideration when determining the appropriate sentence to be imposed.
Part Six: The aggravating factors. I consider the most significant aggravating factor in this case to be what can only be described as the shocking and callous treatment of Ms. R, a vulnerable Indigenous woman, to the point where Ms. R was treated like bags of discarded trash.
Ms. D was a party to the shocking maltreatment of Ms. R. I appreciate Ms. Stevenson’s submissions; I do, however, place less weight on Ms. D's lack of co-operation with the police during the investigation and less weight on her rather callous comments made to the police about Ms. R because I do think that those items where likely influenced by Ms. D's fear of and her exploitation at the hands of Mr. R.
Part Seven: The principles of sentencing. In my view the most significant principles of sentencing relevant in this case are denunciation, general deterrence and rehabilitation. This court is not so concerned about specific deterrence because I think that Ms. D has turned a corner in her life and is unlikely to be back in this same position again in the future. I certainly hope not. Sentencing is a highly discretionary and individualized process. No two cases are alike, and no two offenders are alike. The penultimate objective is to craft a sentence that is commensurate with the facts and with the degree of responsibility or moral blameworthiness of the offender. That is what I have tried to do in this case. It has not been an easy task because of, quite frankly, the court's desire to not minimize the seriousness of what happened but also my feelings of some compassion for Ms. D and my recognition that Ms. D is both an offender and a victim in this case.
Part Eight: The sentence of the court. Beginning first with the ancillary orders, on each of the two convictions I impose a victim fine surcharge. I recognize that Ms. D is not currently working but she is an able-bodied person who can get herself to work in the months ahead and who can give something back to society by way of paying the victim fine surcharges. Ms. D is granted 12 months to pay the victim fine surcharges. Next, this court imposes a section 109 Criminal Code firearms and weapons prohibition order. In accordance with the two subsections, certain items are prohibited for 10 years, and other items are prohibited for life. Next, this court imposes a primary DNA order on the conviction for unlawful confinement. And finally, although perhaps most importantly for Ms. D and her family (Ms. D's father is with her here today), on the issue of imprisonment I have decided, after careful reflection, and on the unique facts of this case and the circumstances of this offender, there can be a fit sentence without any jail.
A.D: Thank you, Your Honour.
THE COURT: The court imposes a sentence of three years of probation, which is the maximum length permitted under the Criminal Code. All of the statutory terms of the three-year probation order apply, plus these optional conditions:
Ms. D shall report to a probation office within 24 hours of the passing of this sentence and thereafter on such schedule and in the manner directed by the probation officer.
Ms. D shall attend for any counselling or treatment directed by the probation officer and not leave that counselling or treatment without the prior written permission of the probation officer, and such counselling or treatment shall include grief counselling, trauma counselling, and substance abuse counselling.
further, in order to monitor her progress with counselling and treatment, Ms. D shall sign all releases of information demanded of her by either the probation officer or the provider of the counselling or treatment service.
As well, Ms. D shall have no contact or communication directly or indirectly with Mr. R and Ms. W. Their full names will appear in the probation order.
And finally, Ms. D shall perform 180, 1-8-0 hours of community service work. The place or places where Ms. D performs the community service work shall be approved by the probation officer. The schedule under which Ms. D shall perform the community service work is in the discretion of the probation office. In my view, although 180 hours is a significant amount of community service work, Ms. D is a fairly young person still and she is more than able to perform the 180 hours. It is a probation order that applies to both convictions.
That is the sentence of the court subject to counsel advising me if there is anything that I have left out.
THE COURT: Okay, that completes this matter. Ms. D, I wish you the best going forward. There is no excuse or justification for what happened with Ms. R, but you can't change that now. What you should focus on is yourself and your family going forward. I do not mean this as a remark that you should consider threatening,
I'm simply saying, if you ever come back to court for something like this, the sentence that was imposed today will not have any precedential value. The court will say, well the judge went out of his way to give Ms. D a break the last time, you can tell from the judge's reasons, so the sentence this time will be a number of years in the penitentiary. There will be a huge jump in the sentence the next time. I know you won't be back but I am just advising you. Okay?
A.D: Thank you so much Your Honour.
THE COURT: Thank you.
...END OF EXCERPT AS REQUESTED
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
Evidence Act
I,
Mary Thompson
(Name of authorized person)
certify that this document is a true and accurate transcript of the recording of
R. v. A.D
in the
Superior Court of Justice
(Name of case)
(Name of court)
held at
491 Steeles Ave E, Milton Ontario
(Court address)
taken from Recording
1211_4_20231025_085753__10_CONLANC.dcr
, which has been certified in Form 1.
30-Oct-2023
(Date)
(Signature of authorized person)
2489985360
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Ontario
, Canada.
(Province of signing)
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