CITATION: R. v. Finlay, 2024 ONSC 2096
OSHAWA COURT FILE NO.: CR-22 15808
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty The King
– and –
Devon Finlay
Defendant
N. Trbojevic for the Crown
D. Barrison, for the Defendant
HEARD: March 27, 2024
LEIBOVICH J.
reasons for SENTENCING
1Mr. Finlay was found guilty by myself, sitting without a jury, of procuring three boys, when they were under the age of 18, to have sexual activity with Craig Moffatt for money. He was also convicted of trafficking one of the boys. I acquitted Mr. Finlay of having sexual activity with the boys. My reasons for decision are found at R. v. Finlay, 2023 ONSC 6981. The Crown is seeking a global sentence of ten years while the defence submits that a sentence of five years is appropriate.
2The Crown is also seeking a SOIRA order for 20 years, a DNA order, a s.743.21 non-communication order, a 10-year s.109 order and a s.161 order that would prevent Mr. Finlay from working or volunteering with youth under the age of 16. The defence takes no issue with respect to these ancillary orders, and I agree that they should be imposed.
3Sentencing submissions were heard on March 27, 2024, and the case was adjourned to today for my decision.
Preliminary Issue – Which charges should be stayed pursuant to the Kienapple Principle
4The Kienapple principle, which emanated from R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, states that there ought not to be multiple convictions for the same “delict”, “matter”, or “cause”. For Kienapple to apply there must be both a sufficiently close factual nexus and a sufficiently close legal nexus between the two offences in the circumstances: see R. v. McGuigan, 1982 41 (SCC), [1982] 1 S.C.R. 284; R. v. Krug, 1985 2 (SCC), [1985] 2 S.C.R. 255; R. v. Prince, 1986 40 (SCC), [1986] 2 S.C.R. 480; R. v. Provo, 1989 71 (SCC), [1989] 2 S.C.R. 3; R. v. Langevin (1979), 1979 2999 (ON CA), 47 C.C.C. (2d) 138 (Ont. C.A.); and R. v. R.K. (2005), 2005 21092 (ON CA), 198 C.C.C. (3d) 232 (Ont. C.A.); R. v. Meszaros, 2013 ONCA 682, 309 C.C.C. (3d) 392 at para. 30. The struggle in applying the Kienapple principle “is often of academic interest only, as its outcome has no impact on the actual sentence to be served by the accused.”; R. v. Ramage, 2010 ONCA 488, [2010] 257 C.C.C. (3d) 261 at para. 59. This case is typical in that Mr. Finlay’s sentence will not be affected, irrespective of how I apply the Kienapple principle.
5I found Mr. Finlay guilty of three offences with respect to RC, (counts 5,6,7): human trafficking; procuring; and exercise control, direction or influence for the purpose of facilitating an offence. Both counsel agreed that count 7 should be stayed pursuant to the Kienapple principle and that sentences should be imposed for counts 5 and 6 but that those sentences should be imposed concurrent to each other.
6I found Mr. Finlay guilty of two offences with respect to TC, counts 10 and 11, procuring and exercise control, direction or influence for the purpose of facilitating an offence. Both counsel agree that Mr. Finlay should be sentenced for the offence of procuring and that count 11 should be stayed pursuant to the Kienapple principle.
7I agree with counsel, counts 7 and 11 will be stayed and Mr. Finlay shall be sentenced accordingly.
Circumstances of the Offence
8The circumstances of the offences are set out in detail in my reasons for judgement and I do not intend to repeat them. Mr. Finlay, a friend of the C family, known to RC and TC as Uncle Dev, procured TC and DH and procured and trafficked RC to provide sexual services to Mr. Moffatt for money. I made the following findings:
a. “I am satisfied beyond a reasonable doubt that Mr. Finlay committed the offence of human trafficking and procured RC to provide sexual services to Mr. Moffatt for money. Mr. Finlay abused his position as family friend and as Uncle Dev to influence RC to engage in this conduct.
b. The text exchanges showed that he bought cocaine from Mr. Finlay and that he was asking Mr. Finlay for cocaine. Mr. Finlay, although he denied any responsibility, testified that he understood that RC had a problem with cocaine. While RC may be mistaken about exactly how his cocaine addiction unfolded, there is no doubt that he had an addiction, and there is no doubt that his Uncle Dev was a major reason for it.
c. there is no evidence that Mr. Finlay was paid to arrange for these sexual acts. ……However, the evidence is undisputed that Mr. Finlay had been friends with Mr. Moffatt for a quarter of a century and that Mr. Moffatt was a good drug client. Clearly, Mr. Finlay was much more concerned keeping Mr. Moffatt happy than taking care of RC and shielding RC despite Mr. Finlay’s close relationship with the C family.
d. Mr. Finlay proposed that RC perform the sexual services and persuaded RC to adopt the idea. He was Uncle Dev. He drank alcohol with RC. He smoked marijuana with him. He sold him cocaine. He bought him things, took him to McDonald’s, the CN tower and the Bluffs. He gave RC the price list. He was the main point of contact with Mr. Moffatt. He drove RC to Mr. Moffatt’s house repeatedly. He had a strong influence over RC’s actions.
e. DH was crystal clear in his evidence that it was Mr. Finlay who initiated DH into this world. It was Mr. Finlay who told him how he could make money, gave him the plan and suggested the prices. It was Mr. Finlay who told him that he was coming with him to Mr. Moffatt’s house. I accept DH’s evidence regarding how he came to provide the sexual services.
f. I am satisfied beyond a reasonable doubt that Mr. Finlay was not just facilitating the provision of sexual services, he was influencing DH to do so. Mr. Finlay proposed the idea and persuaded DH to adopt it. Given his relationship with DH, Mr. Finlay had a strong influence over him. He would take DH to the beach, he bought him a Puma suit (to bribe him as DH stated). He drove DH to Mr. Moffatt’s house until December 2020 and Mr. Finlay gave him the plan for dealing with Mr. Moffatt.
g. I am satisfied beyond a reasonable doubt that it was Mr. Finlay who proposed the idea and persuaded TC to adopt it. Uncle Dev was, as described earlier, a family friend. He drove TC to Mr. Moffatt’s house. He gave TC marijuana that night and he used his position of trust to wear down the 14-year-old, who initially refused, into finally agreeing to provide sexual services to Mr. Moffatt for money.”
Victim Impact
9RC, TC and DH have filed victim impact statements along with their parents. DH and DH’s mother have filed the impact statements that they filed for Mr. Moffatt’s sentencing and have asked that those impact statements be applied to these proceedings. Defence counsel takes no issue with this as long as it is understood in the context of the crimes that Mr. Finlay was found guilty of.
10Section 722(8) of the Criminal Code directs a judge to disregard any portion of a victim impact statement that is outside of the scope and purpose of the Criminal Code. There are a couple of references in the victim impact statements to the sentence that Mr. Finlay should receive. Those comments are outside the scope and purpose of the victim impact statement and they will be ignored. RC stated in his victim impact statement that he was physically assaulted by Mr. Finlay and that Mr. Finlay was responsible for RC’s family being kicking out of the motel. There was no evidence led at trial on these two topics and I will not consider them in imposing sentence.
11Mr. Finlay’s crimes had a significant impact on the victims and their families.
12RC noted the following:
Some nights when I reflect back on the crimes committed to me, I become very depressed. I have in the past wanted to self-harm and have noticed an increase in anxieties and anger thinking about what I have gone through.
It has been very painful to reflect back on the childhood that I feel was taken from me at the hands of Mr. Finlay whom I had great trust in as a family friend. I grew up with him and he took so much of my childhood joy when he committed those crimes against me. I had to grow up really quickly and felt I had to be an adult at a very young age considering the harm and length of time the exploitation happened to me.
I have attempted to attend therapy for what has happened to me but bringing up memories and talking about what has happened continues to be very difficult and traumatizing.
13TC wrote that he suffers from depression, and he is no longer comfortable going out with friends or going outside. He is worried about something happening to him or his family.
14RC and TC’s parents wrote that because of Mr. Finlay they cannot trust anyone, even family members. They described their own inability to sleep and their own symptoms of depression and post-traumatic stress.
15DH wrote that he is experiencing feelings of self-disgust, that he cannot sleep, that he is failing in life. DH wrote that he just wants to be happy again, and wishes that the incidents never happened. DH’s mother described her own sadness as a result of the offences. She wrote about DH’s suffering and that he has been broken and damaged. DH used to be a happy fun-loving child but now he is immersed in pain and suffering and talks about suicide. She wrote that it was hard for her to be strong for him because she herself is hurting so badly. DH’s mother wrote about her own guilt in not being able to protect DH from the abuse. She believes that she has failed as a parent. She described the pain caused not to just to her but her entire family.
Circumstances of the offender
16A pre-sentence report was prepared. Mr. Finlay is now just shy of his 61st birthday. He has a dated criminal record. He was last convicted on June 7, 1993 for using a credit card obtained by crime and possession of property obtained by crime. His longest prior sentence was 120 days, and all his prior offences were non-violent and unrelated to the current charges. Mr. Finlay was born in Kingston, Jamaica and came to Canada in 1976. He never met his father. He has a younger maternal half-brother, who is currently missing and has not been in contact with family since they last saw him three years ago and a younger half-sister.
17Mr. Finlay told the pre-sentence report writer that there was no substance abuse in the home, he was not abused mentally, physically or sexually, and that child protective services was not involved with the family. He said it was a good upbringing.
18Mr. Finlay said that growing up in Jamaica wasn't an easy circumstance, “it was rough, the area that we lived in, it was always shoot-outs with gangs and police, whenever election time comes around there was more shootings and killings, I saw it growing up”. Upon arriving in Canada, Mr. Finlay lived in a community housing apartment in the Scarborough area of Midland and Kingston Road, for about 26 years with his mother and both siblings.
19Mr. Finlay had paper routes between the ages of 15 and 17. He then spent four seasons working seasonally in parks and recreation. Between the ages of 35 and 43, he moved to a carpet and upholstery company. He then worked in snowplowing from 2017 until 2020. He was robbed and stabbed 15 years ago and has a piece of knife stuck in his skull. He testified at trial that he suffers from post-traumatic stress disorder, and he lives with his sister and mother at his mother’s house. He is receiving $1400 a month from ODSP. At trial Mr. Finlay testified that he supplemented his disability income by trafficking drugs. Mr. Finlay said that he himself did not have a drug abuse problem.
20His mother is now currently in palliative care. She is 80 and has type 2 diabetes. Mr. Finlay’s sister told the pre-sentence report writer that Mr. Finlay is essential to taking care of their sick mother, “he’s a helping hand with our mom and he helps take care of her, he takes her out of the bed and cleans her, he makes her food, he’s been helping her ever since she got sick”.
21Mr. Finlay added that while growing up he was a secondary parent to his younger siblings while his mother worked two jobs in order to support the family. Mr. Finlay also said that he was involved in the community and has been a coach.
22Mr. Finlay has type 2 diabetes, hypertension, obstructive sleep apnea, chronic depression, and dyslipidemia – high cholesterol. He noted that his chronic depression has been stabilized by antidepressants.
23Mr. Finlay denied any involvement in the offences. The pre-sentence report writer stated:
In further enquires as whether he felt remorseful for his actions the subject said, “these charges that I am up on it’s fabricated it never happened, there’s nothing like that, a mother who can manipulate her kids to say things, even though I have been found guilty I forgive those kids, their just following their mother’s footsteps, I told my lawyer we are appealing this all the way, now I know how it feels to be someone who says I didn’t do it and getting convicted of it, there was nothing sexual assault, but the human trafficking, they got the guy Craig Moffatt, he wants crack, and that’s what the Judge went on”.
24Mr. Finlay stated that the victim’s mother was forcing him to lie and that she was selling the boys.
25When probed as to the impact his behaviour may have had upon the victim, again the accused maintained his innocence:
I feel sorry for what the lies they have to go through in the trial, RC was the main person, they are all saying I took them, because I know RC and TC, it took TC a month-and-a-half to read the statement, I could imagine his mother was beating him and forcing the statement, you guys didn’t investigate with CAS, called CAS saying she’s selling the boys, you can check it out ,yes I was there for moral support for the kids taking RC to therapy”. When this officer enquired as to whether given these concerns why he had not reported this information to police or child protective services, he said, “because I didn’t find out until, I needed evidence, TC said to me Mom and RC said it was okay I made this much money, that’s when I sent the text message I don’t want to get caught up in human trafficking, but it was never brought up I’m getting fucking shafted here, they will have God to answer to.
26The writer concluded that:
In considering therefore the risk of further offending identified risk factors in this authors view would include, lack of victim empathy, poor decision making, access to drugs, emotional awareness and lack of any insight into his behaviour. For the future this officer would encourage the subject to attend all appropriate programs addressing this type of behaviour and it may well be of benefit that a full psychological assessment is undertaken on the subject so as the risk this individual presents can be fully assessed. It is concerning that the subject as yet has been unable to come to terms with the offences he has been convicted of and until he can start to demonstrate some awareness of the damage he has done to this family and the victims, there must, in this author’s view, continue to be concerns about the potential risk of further offending.
Aggravating and Mitigating Factors
27The following are the aggravating factors:
a) Mr. Finlay abused his position of trust in the C family;
b) Mr. Finlay set up 3 vulnerable boys to be abused by Mr. Moffatt;
c) Mr. Finlay was aware of the C’s family’s financial difficulties and exploited them;
d) Mr. Finlay exploited RC’s cocaine addiction and sold him cocaine.
e) RC was exploited over an extensive period of time;
f) The victims were under the age of 18, a statutorily aggravating factor;
g) TC was particularly young, only 14; and
h) Mr. Finlay engaged in grooming behaviour.
28The following are the mitigating factors:
a) Mr. Finlay cares for his mother. He has the support of his family;
b) There is a gap in his criminal record, as he has not been convicted of an offence for 30 years. He does not have a related record. However, he was trafficking drugs at the time of the offences; and
c) Mr. Finlay has some health issues that will have to be address immediately by the institution.
Law and Analysis
29Section 718 of the Criminal Code describes the purpose of sentencing:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
a. to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
b. to deter the offender and other persons from committing offences;
c. to separate offenders from society, where necessary;
d. to assist in rehabilitating offenders;
e. to provide reparations for harm done to victims or to the community; and
f. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
30Section 718.01 of the Criminal Code states that when dealing with offences against children a court shall give primary consideration to the objectives of denunciation and deterrence of such conduct. The principles of denunciation and deterrence were explained by Zarnett J.A. in R.v. T.J., 2021 ONCA 392 at para. 26 as follows:
A sentence expresses denunciation by condemning “the offender for encroaching on our society’s basic code of values”; it expresses deterrence by “discouraging the offender and others from engaging in criminal conduct”. Considerations of general deterrence lead to an offender being punished more severely than he or she might otherwise deserve in order to send a message to others: Lis, at para. 55.
31And as stated by the Court of Appeal in R. v. Wilson, 2022 ONCA 857 at para.51:
Seven years falls within the range for human trafficking and child pornography. The Supreme Court in R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, makes it very clear that offences against children require more severe sentences and that deterrence and denunciation should be the paramount focus on sentencing for those offences: see, for example, paras. 101, 107.
32A court must still consider other sentencing objectives such as rehabilitation but it cannot be given equal or greater priority than denunciation and deterrence. As explained by Zarnett J.A. in T.J. at para. 27:
The provisions of s. 718.01 not only mean that denunciation and deterrence must be the primary objectives of the sentence, but that “it is no longer open to a sentencing judge to elevate other sentencing objectives, for example rehabilitation, to equivalent or greater priority than denunciation and deterrence in determining a proportionate sentence”. These other objectives may be given significant weight, but not priority or equivalency: Lis, at paras. 47-48, 53; Friesen, at paras. 101-4.
33Section 718.2 of the Criminal Code specifies that the following factors are deemed to be aggravating factors:
evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.
34In this case Mr. Finlay has not been convicted of sexually abusing the boys himself. However he set them up to be sexually abused by Mr. Moffatt. Sexual violence against children invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity. A child should be able to grow and develop free from sexual interference and exploitation by adults. Sentences must fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children.
35Harm includes not just physical harm, but the often more pervasive and permanent emotional and psychological harm caused by sexual violence. A court must consider the harm caused and the reasonably foreseeable harm that could result. As stated in R. v. Friesen, 2020 SCC 9 at para. 84:
As a result, courts must consider the reasonably foreseeable potential harm that flows from sexual violence against children when determining the gravity of the offence. Even if an offender commits a crime that fortunately results in no actual harm, courts must consider the potential for reasonably foreseeable harm when imposing sentence (A. Manson, The Law of Sentencing (2001), at p. 90). When they analyze the gravity of the offence, sentencing judges thus must always take into account forms of potential harm that have yet to materialize at the time of sentencing but that are a reasonably foreseeable consequence of the offence and may in fact materialize later in childhood or in adulthood. To do otherwise would falsely imply that a child simply outgrows the harm of sexual violence.
36“A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender – this is the fundamental principle of sentencing.”; T.J. at para. 19, s. 718.1 of the Criminal Code. The offences for which Mr. Finlay has been convicted are extremely serious. They are inherently exploitive; R. v. Joseph, 2020 ONCA 73, at para.99.
37The parity principle, which is required now by s. 718.2(b) of the Criminal Code requires that similar offenders who commit similar offences in similar circumstances be given similar sentences. Past cases, or precedents, create sentencing ranges to help guide the court. But sentencing is an individualized process and sentencing ranges are not meant to handcuff the court. As stated by ACJO Fairburn in R. v. A.J.K., 2022 ONCA 487, 415 C.C.C. (3d) 230 at para. 71:
The Supreme Court recently reiterated that ranges and starting points are malleable products of their time. They are "historical portraits" that provide insight into the operative precedents of the day, but they are not "straitjackets" and can be departed from as societal understanding of offences and the severity of harm arising from those offences deepens: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 57; R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 108. To that end, it is not unusual "for sentences to increase and decrease as societal and judicial knowledge and attitudes about certain offences change": R. v. Parranto, 2021 SCC 46, 436 D.L.R. (4th) 389, at para. 22, citing R. v. Smith, 2017 BCCA 112, at para. 36, citing R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330, at para. 49; Friesen, at para. 108.
38The Crown and defence do not disagree on the above fundamental principles that must be considered by myself in imposing sentence. Rather they disagree agree on what the appropriate sentence is after applying those principles. They have submitted a number of cases in support of their position. I have read all of them. As one can appreciate all cases are different and they have their own aggravating and mitigating factors. I have summarized some of the cases as follows:
R. v. Wilson: The accused was convicted of committing six offences against the complainant when she was 16 to 17 years old: trafficking a person under the age of 18; receiving a material benefit from the commission of an offence under s. 279.011(1) of the Criminal Code; receiving a material benefit from the commission of an offence under s. 286.1(2) of the Criminal Code; making child pornography; distributing child pornography; and procuring. He received a global sentence of seven years in custody to be served consecutively to an unrelated sentence for manslaughter. The accused exploited the complainant's vulnerability, the isolation from her family, her lack of education, troubled background, young age, and romantic attachment to the appellant. The length of time of the trafficking, the high number of clients, the large sums of money taken by the appellant, the simulated rape that the appellant organized without the complainant's knowledge, the use of psychological coercion against the complainant, and his criminal record, were aggravating circumstances.
R. v. Safieh 2019 ONSC 287: The accused received a global sentence of 6 years for two counts of procuring and two counts of making child pornography. The procuring sentences themselves were for 4 years. The accused came into contact with an underage female living in a group home who was 16 years old. He persuaded her to become a child prostitute with promises of drugs and money. He arranged to meet with the minor at a hotel room. Prior to this meeting the complainant advised the accused that there was another underage girl at the group home interested in working for him. The accused invited both underage girls to attend at the hotel room. He explained to them at this meeting that he would rent hotel rooms for them and that they were to immediately turn over all the money to him. He told the two girls about another younger girl who was working as a prostitute and was beaten when she failed to turn all the money over to her pimp. The accused proceeded to take photographs of the two girls in various stages of undress in order to advertise their services on the internet. As the accused was finishing with the photographs, two police officers knocked on the hotel room. The accused was arrested by the police, the photographs of the two girls were never released on the internet, nor were the two young girls actually involved in prostitution. The accused was 20 at the time with no criminal record. He did not plead guilty but was found guilty after an agreed statement of facts was filed.
R. v. Fardshisheh 2023 ONSC 1334: The accused was convicted of procuring a person under the age of 18, luring, obtaining for consideration the sexual services of a person under the age of 18 years. The victim was 17 and responded to the accused’s Instagram invitation to engage in prostitution with him. This occurred on 6 occasions. The accused had no criminal record. A sentence of three years was imposed.
R. v. Chisholm, et al, 2018 ONSC 7802: The victim was 16 and had been kicked out of her house. She met the accused and started working as a prostitute whereby she would share the fees with the accused. She worked for 6 weeks as a prostitute. The victim suffered significant impact. She was assaulted when she tried to escape, and she was wrapped in a sheet, and placed in the bathtub, under a hot water shower. Three accused were charged. One accused who had no criminal record and was 22 received a 40 month sentence. Another accused was 26 and had a significant criminal record. He received a sentence of 48 months.
R. v. Ellis, 2017 ONSC 3812: Mr. Ellis was convicted of a number of procurring offences and assault. The victim was 22. The offences took place over four months. The assault occurred when the victim tried to leave the relationship. The accused had no criminal record. A 20 month sentence was imposed.
R. v. Craig Moffatt: I have not been given the reasons for sentence for Mr. Moffatt. But it is known, based on the trial evidence that Mr. Moffatt pleaded guilty to 8 offences with respect to RC, TC, and DH. He received a sentence of 7 years for the following:
a) Invitation to sexual touching and sexual interference with respect to RC;
b) Sexual interference with respect to TC;
c) Obtaining sexual services from someone under the age of 18 with respect to RC, TC and DH; and
d) Making child pornography with respect to RC and DH.
It does not appear that he had a prior criminal record at the time of sentencing.
The appropriate sentence
39The Crown has sought a total sentence of 10 years, allocated as follows:
a. The offences with respect to RC: 7 years
b. The offences with respect to DH: 2 years
c. The offences with respect to TC: 2 years
The Crown agrees that the sentence should be reduced by one year as a result of the totality principle.
40The defence submits that a total sentence of 5 years is appropriate, allocated as follows:
a. The offences with respect to RC: 4 years
b. The offences with respect to DH: 1 year
c. The offences with respect to TC: 1 year
The defence submits that the sentence should be reduced by one year as a result of the totality principle.
41The totality principle which is codified in s. 718.2(c)) of the Criminal Code was recently explained by the Supreme Court of Canada in R v Bertrand Marchand, 2023 SCC 26 at para. 99 as follows:
The effect of the totality principle is to require a judge to ensure that the series of sentences are, in aggregate, "just and appropriate" (see M. (C.A.), at para. 42; Criminal Code, s. 718.2(c)). This involves taking "one last look at the combined sentence" to assess whether it is "unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender" (Hutchings, at paras. 42 and 84; Laguerre v. R., 2021 QCCA 1537, at para. 43 (); M. (C.A.), at para. 42). If the principle of totality is offended, the sentences can be adjusted by making some concurrent, or if this does not achieve a just and appropriate sentence, by reducing the length of one or more sentences (Desjardins, at para. 34)., 2023 CSC 26, [2023] ACS no 26, 2023 WCB 1529, 91 CR (7th) 221, 431 CCC (3d) 1, 487 DLR (4th) 201, 2023 CarswellQue 15457, 2023EXP-2604, [2023] SCJ No 26
42The proper approach is to first determine the just and appropriate sentence for each offence individually. Next, one must consider whether the sentences ought to be consecutive or concurrent, after that the trial judge must consider the principle of totality in s. 718.2(c); Bertrand Marchand at para. 91.
43Mr. Finlay’s actions contain a high degree of moral blameworthiness. He did not commit a hands-on sexual offence against the three boys. But he procured them to have sexual activity with Mr. Moffatt. He trafficked RC. While TC engaged in one act with Mr. Moffatt and DH only engaged in four acts RC was involved in the world of underage prostitution for an extensive period of time. Any offender who exploits and abuses any youth has a high degree of moral responsibility because, except in the rarest of cases, the offender will usually have at least some awareness of the profound physical, psychological, and emotional harm that their actions may cause the youth.
44But Mr. Finlay’s moral blameworthiness is even higher than in a typical case as he knew the victims. He abused his position of trust with the C family, he knew about their financial difficulties, he knew about RC’s cocaine addiction and contributed to it. Mr. Finlay forever changed the trajectory of the victims’ lives. They would have never come in contact with Mr. Moffatt but for Mr. Finlay.
45The victims and their families have suffered significantly because of Mr. Finlay and of course because of Mr. Moffatt. The harm that the caselaw talks about can be seen in the facts of this case. DH went from a happy young man to one immersed in pain. RC has lost his childhood and been suicidal. TC is suffering from depression. Their parents are suffering as well.
46There are few mitigating factors. Mr. Finlay has a dated criminal record that is unrelated. He takes care of his mother. His family is supportive of him. At one point he was a coach. He has some health issues.
47The cases presented by the Crown, while they call for a significant sentence, they do not support the sentence requested by the Crown, especially having regard to the totality principle. In addition, the cases presented do not support the defence’s position especially having regard to the number of victims.
48In my view having regard to the aggravating factors and the few mitigating factors the following sentences are appropriate:
a. The offences with respect to RC: 5 years:
b. The offences with respect to DH: 2 years: and
c. The offences with respect to TC: 2 years.
49The sentences should be imposed consecutive to each other to reflect the harm to each victim. However, in my view to do so would result in a combined sentence that would offend the totality principle as the sentence would be "unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender.” Therefore I will adjust the sentence and make the sentence with respect to the TC offences concurrent to the DH offences for a total sentence of 7 years.
50I am aware that this is the sentence that Mr. Moffatt received. I find Mr. Moffatt’s moral blameworthiness to be slightly higher than Mr. Finlay’s in that he committed the hands-on abuse of the victims. In addition, he was also convicted of two counts of making child pornography in connection to the victims. However, Mr. Moffatt’s sentence no doubt would have been higher but for his guilty plea and acceptance of responsibility.
51I therefore sentence Mr. Finlay as follows:
Count 5 (human trafficking) – 5 years;
Count 6 (procuring) – 5 years, concurrent to count 5;
Count 10 (procuring) – 2 years consecutive to counts 5 and 7;
Count 12 (procuring) - 2 years concurrent to all the counts.
For a total sentence of 7 years.
52There will also be a:
SOIRA order for 20 years;
DNA order;
S.743.21 non-communication order with respect to the victims and their families;
10 year s.109 order; and
s.161(1)(b) order for 10 years.
The Honourable Mr. Justice H. Leibovich