Court File and Parties

COURT FILE NO.: CR-22-30000024-0000 DATE: 2024-11-25 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – JAMAAL KOEHLER

Counsel: Monica Gharabaway, for the Crown Bella Petrouchinova, for Mr. Koehler

HEARD: September 23 and October 24

R.F. GOLDSTEIN J.

[1] Jamaal Koehler trafficked, controlled, drugged, assaulted, and sexually assaulted N.F. in late 2019 and early 2020. He pleaded guilty to six counts as follows:

• Human trafficking of N.F. between November 1, 2019, and January 23, 2020.
• Receiving a financial benefit from human trafficking between November 1, 2019, and January 23, 2020.
• Sexual assault of N.F. between November 1, 2019, and January 23, 2020.
• Assault causing bodily harm to N.F. between November 1, 2019, and January 23, 2020.
• Unlawful confinement of N.F. between November 1, 2019, and January 23, 2020.
• Administering a noxious substance to N.F. between November 1, 2019, and January 23, 2020.

[2] He now comes before the court for sentencing.

Facts

[3] Mr. Koehler met N.F. when she was working as a food delivery person in October 2019. They exchanged telephone numbers and began to spend time together. In November 2019 Mr. Koehler proposed that N.F. begin working for him as an escort. He proposed that she would provide the sexual services while he provided transportation and protection. They would split the earnings 50/50. Mr. Koehler took sexualized photographs of N.F. She then posted the advertisements on adult websites. N.F. then began to see customers. Mr. Koehler drove her to appointments and picked her up after she provided sexual services. She gave him 50% of her earnings at first. Later, he took all her earnings. Over the time she escorted for him she earned about $4000.00. He kept $3000.00 of it.

[4] In December 2019, while at his apartment, Mr. Koehler held N.F. down and put what he said was cocaine in her nose. She lost consciousness. When she awoke, she saw she had vomited. Mr. Koehler then told her that he gave her fentanyl and administered a “narcon” kit on her to revive her. Mr. Koehler then began to provide fentanyl to N.F. to keep her addicted so that she needed him.

[5] Mr. Koehler assaulted and sexually assaulted N.F. on several occasions while they were together. Prior to Christmas, 2019, Mr. Koehler became angry with N.F. He punched her and scratched her. Her face and body were bruised. Mr. Koehler held her in a closet for a week while the marks healed. He later used a lighter to burn her and cut her leg. He locked her in his condo for a week after that, again to conceal her injuries.

[6] Mr. Koehler sexually assaulted N.F. regularly, using his penis and his fingers – which caused her to go to the hospital on one occasion to seek medical attention. He even asked how could be raping her if he was her boyfriend. He sexually assaulted her both vaginally and anally.

[7] In January 2020 N.F. told Mr. Koehler that she wanted out. Mr. Koehler began to take all her earnings. He told her that she now owed him a headache fee. He also showed her a firearm. He dug it up from a backyard, loaded it, and fired it out the window of his car while driving to determine if it still functioned.

[8] On January 22, 2020, N.F. saw customers at a motel in Scarborough. While she was there Mr. Koehler gave her a mixture of Percocet and fentanyl to snort. He then drove her around, and in a fit of jealousy about another man, assaulted her again by choking her and biting her. He then used zip-ties to tie N.F.’s hands together and zip-tied her to the door of his car. He said, “this is real human trafficking, isn’t it?” N.F. was eventually able to break the zip ties and escape. She ran into the motel. The motel staff called 911 for her. N.F. was taken to the hospital. She sustained bruising, cuts, burns, and bites on her body. Photographs and diagrams of N.F.’s injuries were entered into evidence.

[9] Mr. Koehler had threatened to kill N.F. and kidnap her brother. N.F. advised the police of this. The police attended N.F.’s home. N.F.’s mother told the police that Mr. Koehler had been there and said he would be back. The police intercepted him driving back to N.F.’s home. The police found several items described by N.F. in the car, including cut zip ties, a package of zip ties, condoms, and a receipt for zip ties from the Home Depot. Photographs of items seized from Mr. Koehler’s car included zip ties, a debt list, and a folding knife as described by N.F.

[10] Mr. Koehler’s vehicle was subsequently examined by the Centre of Forensic Sciences. The investigators found gunshot residue in it, confirming N.F.’s account that Mr. Koehler had fired a gun from it.

Impact on the Victim

[11] N.F. provided a victim impact statement. Her relationship with Mr. Koehler has had a tremendous impact on N.F. She will be forever physically and emotionally scarred. She described how Mr. Koehler abused her. He essentially kept her captive for two months. She was not allowed to eat, use the washroom, or do anything without his permission. He manipulated her with a combination of pretend romance, drugs, physical abuse, and sexual abuse. N.F. suffered physical injuries that she still deals with, including a brain injury. The brain injury has caused her difficulties at work, at school, and in her ability to concentrate. The brain injury continues to impact memory and cognitive function. She will require lifelong treatment for it. She has had to pay for therapy. The experience has affected her ability to relate to and love the members of her family, including her husband and her daughter. She has intimacy issues, trust issues, and panic attacks. She fears that Mr. Koehler will seek her out for revenge.

Background of Mr. Koehler

[12] Mr. Koehler provided an affidavit to the court, setting out some of his background. I also gleaned information from a letter written by his mother. He was born and raised in Canada. He is now 30 years old. He grew up living with his mother. Mr. Koehler says that he ever went to bed hungry, and never lacked for clothing. His mother worked hard and worked long hours. She was frequently at work when he got up, and she often was still at work when he came home. Although his mother was able to provide for him, they were not wealthy. I think his family is best described as “working poor”. Mr. Koehler grew up in areas where crime and violence were present. His mother had an abusive partner at one point. He left the home and was homeless for a short time. His father was often absent from his life when he was growing up. He has a better relationship with his father now.

[13] Mr. Koehler says that his upbringing led him to use and sell drugs. By age 25, he says, he was addicted to hard drugs and used drugs daily. There is some corroboration for that assertion. Mr. Koehler has a criminal record. In 2018 he was convicted of possession of a schedule I drug for the purpose of trafficking. He received a $50 fine in light of six months pre-sentence custody. He was also placed on a weapons prohibition.

[14] Mr. Koehler stated in his affidavit that he has been the victim of systemic racism by the police. He says that the police targeted him. He believes that police officers always assumed that he was involved in drugs or criminal activity. His mother corroborated that claim in her letter to the court.

[15] Mr. Koehler also became involved in competitive hockey and played at a high level but felt that he was exposed to degrading and racist comments. He became discouraged and did not want to play hockey anymore although that had been his passion. He was suspended for life from the Greater Toronto Hockey League – although he claims he was not at fault, something his mother also agrees with. Mr. Koehler also described how he developed anxiety and learning disabilities.

[16] I accept that Mr. Koehler may well have been the victim of systemic and overt racism as he describes it in both hockey and from the police. Such things have been well-documented in other cases (at least as far as the police are concerned) and there is no evidence to contradict him. That said, it is important to note that the police, and the competitive hockey authorities, are not in a position to respond to these allegations. Nonetheless, I agree that I can take into account what have come to be called the “Morris” factor: R. v. Morris, 2021 ONCA 680. The real question, as Morris teaches, however, is whether there is some connection between systemic racism suffered by the accused and the offence. With respect, I struggle to find any connection. Mr. Koehler pretended to start a romantic relationship with N.F., abused her, trafficked her, raped her, and administered fentanyl to her. He did it for profit and for his own gratification. It is not clear to me the role that institutional and overt racism played in his decision to commit these crimes.

Legal Parameters

[17] Human trafficking in this case contrary to s. 279.01(1)(b) of the Criminal Code carries a maximum penalty of 14 years imprisonment, as does administering a noxious substance contrary to s. 245(1)(a) of the Criminal Code. The other offences that Mr. Koehler pleaded guilty to all carry a maximum penalty of ten years.

Positions Of The Parties And Cases In Support

[18] Two main cases set out the ranges for the offences at issue here: R. v. A.J.K., 2022 ONCA 487, dealing with penetrative sexual assaults; and R. v. A.E., 2018 ONSC 471, dealing with the range of sentence for human trafficking. Ranges, of course, are not straightjackets. Sentencing judges must impose sentences that are fit, and sentencing ranges are a tool to assist judges in reaching proportionate sentences. They are “navigational buoys” that ensure sentences reflect the appropriate sentencing principles: R. v. Parranto, 2021 SCC 46, at paras. 3 and 16. Sentencing is an individual process, and the application of the principles in a particular case may render a sentence at a particular place within the range – or, under the right circumstances, outside the range.

[19] In R. v. A.J.K., the Court of Appeal found that the starting point for penetrative sexual assaults is generally 3-5 years in the penitentiary. In R. v. A.E., supra, Boswell J. noted that the range of sentence for human trafficking is very wide, but the range has been rising. The usual range is now four to eight years. This range has been accepted by many judges of this court: R. v. H-O., 2022 ONSC 4900; R. v. Abedini, 2019 CarswellOnt 24260, [2019] O.J. No. 6947 (Sup.Ct.); R. v. K.P., 2023 ONSC 676; R. v. S.L., 2024 ONSC 2263; R. v. Swaby, 2024 ONSC 6141.

[20] Crown counsel’s position is that I should impose a sentence of ten years imprisonment, as well as a lifetime Sex Offender Information Registry Act order (“SOIRA”), a s. 109 order, a no-contact order, and a DNA order (which is mandatory for some of the offences) as well as a restitution order and a forfeiture order.

[21] The Crown’s position is that I should impose the following sentences:

• Human trafficking: 6 years.
• Receiving a material benefit from human trafficking: 5 years concurrent.
• Sexual assault: 4 years consecutive.
• Assault causing bodily harm: 3 years concurrent.
• Forcible confinement: 3 years concurrent.
• Administering a noxious thing: 2 years concurrent.

[22] I will mention a few of the cases that Crown counsel relies on.

[23] The Crown relied on R. v. Dak, an unreported decision of Justice Kennedy of the Superior Court in Kitchener dated December 12, 2023. I recently reviewed this case in R. v. Swaby, supra. Dak pleaded guilty to possession of a loaded restricted firearm and possession of cocaine for the purpose of trafficking. He was convicted after a trial of human trafficking and threatening in relation to one complainant, his partner. Dak was a youthful first offender with difficult personal circumstances. He introduced his partner to sex work. He used emotional manipulation and physical violence at least once to enforce compliance. He kept all her earnings and controlled her work in the sex trade for about 9 months. After reviewing the cases Kennedy J. agreed that 4-8 years is the range for human trafficking offences. Kennedy J. would have sentenced Mr. Dak to 5 ½ years on the human trafficking offence alone and would have imposed a global sentence of 12. After considering the principle of totality, however, he imposed a global sentence of 9 years before reductions for pre-sentence custody. He imposed a restitution order of about $48,000 and gave Mr. Dak 10 years to pay after release from custody.

[24] The Crown also relied on R. v. A.S., 2017 ONSC 802. My colleague Quigley J. convicted the offender of one count of sexual assault; two counts of procuring; one count of receiving a material benefit from human trafficking; one count of aggravated assault; one count of assault with a weapon; three counts of assault; and one count of choking. The human trafficking took place over the course of 5 ½ years, with a long break while A.S. was in jail. The offender introduced the complainant to stripping and escorting. He groomed her and used violence and intimidation to control her. The violence included burning her, choking her, and cutting her with a piece of glass. He forced her to work both as an escort and a stripper. The offender had a lengthy criminal record and was 35 years old. A pre-sentence report described him as a career criminal who was reasonably likely to re-offend. Quigley J. sentenced the offender to a global thirteen-year sentence (after taking totality into account) less pre-sentencing custody.

[25] The Crown also relied on R. v. Ferguson, an unreported decision of the Superior Court dated June 21, 2023. The offender pleaded guilty to one count of assault causing bodily harm; one count of procuring; and one count of human trafficking. The victim was 17 when she met the offender. They commenced a romantic relationship, but he told her that if she wanted to be with him, she had to work in the sex trade. She had no previous experience. He took her to Edmonton, where she immediately began escorting under the offender’s control. He took photos of her and posted advertisements of her, set prices, set the rules, and forced her to provide some sexual services against her wishes. He kept all her earnings. The victim worked all over Canada for a short period in October 2018 and then again for about a month in November 2019. The offender used violence and intimidation to control the victim, including assaulting her, choking her to unconsciousness, and burning her in the shower without letting her seek medical help. She suffered a concussion and cuts and bruising because of his abuse. The offender sexually assaulted her vaginally and anally. He also forced objects into her vagina. Durno J. sentenced the offender to a global sentence of 8 years, based on a joint submission, less pre-sentence custody and credit for harsh conditions of custody.

[26] In R. v. T.T., 2022 ONSC 722, the offender was convicted after a jury trial of 9 offences, including one count of human trafficking; two counts of receiving a material benefit from sexual services; one count of procuring; one count of advertising sexual services; one count of sexual assault; and three counts related to making, possessing, and possessing for publication child pornography. The victim was 17 and living in a group home when she met the offender and his co-accused. She was persuaded to begin escorting. Photos were taken and advertised on a website. The offender and his co-accused provided alcohol and drugs to the victim and took all her earnings. The abuse lasted three days and included a sexual assault by the offender of the victim. The offender was 40 years old. He had community support and took educational courses while in jail to improve himself. He apologized to the victim and asked for forgiveness (which did not quite square the fact that he had a jury trial). My colleague Kelly J. sentenced the offender to a global sentence of 8 years, less pre-sentence custody, and after considering time spent on house arrest and harsh conditions of custody.

[27] I turn now to the defence position. Mr. Petrouchinova argues that the appropriate range for this offence is 5-7 years. Mr. Koehler has already spent over five years in custody on an enhanced basis: Criminal Code, s. 719(3.1). That is before accounting for harsh conditions of custody. He has a strong plan of action in place for when he is released. Given his time in custody, the proper range of sentence, the mitigation of his guilty plea, and the good plan, Ms. Petrouchinova’s submission is that Mr. Koehler is in a time served position.

[28] I will briefly review two of the cases relied on by the defence in relation to human trafficking.

[29] In R. v. M.E.D., 2022 ONSC 1899, the offender was convicted of multiple human trafficking and sexual services offences regarding A.M. over the course of about 1 ½ months. A.M. was a university student who was kicked out of her house. M.E.D. persuaded her to meet expenses by working in the sex trade. M.E.D. had a challenging upbringing, living some of his time with his father after his mother was involved in an abusive relationship. He had difficulties in school. He was 28 years old at the time of sentencing. He had been on welfare. And appears to have not held steady employment. He said he regretted the “situation”. He had a minor criminal record. He exercised significant control over A.M. and kept all of her earnings, which amounted to about $5000. A.M. was 22 years old and vulnerable emotionally and financially. He used some violence and demanded sexual favours from A.M. Ultimately, she had to “buy” her freedom from M.E.D. for $10,000. My colleague Justice Kelly would have sentenced M.E.D. to ten years incarceration but after accounting for his terms of release and harsh conditions of custody, she imposed a global sentence of seven years, less pre-sentence custody.

[30] In R. v. Gordon, 2023 ONSC 1036, the offender pleaded guilty before me to five counts including pointing a firearm, unlawful confinement, receiving a financial benefit from human trafficking, human trafficking, and assault causing bodily harm. The complainant was a dancer at an adult entertainment establishment. The offender engaged in classic pimping behaviour, controlling the victim using violence and intimidation – including pointing a firearm. He suffered significantly harsh conditions of custody. He was at the high end of the range, and I would have sentenced him to a sentence of 9 years in the penitentiary but after accounting for mitigating factors, including harsh conditions of custody, I sentenced him to 7 years less time served.

Aggravating Factors

[31] The most important aggravating factor in this case is the nature of the offence. Mr. Koehler brutalized and manipulated N.F. for his own sexual and financial gratification. His treatment of her was unspeakable.

[32] It is highly aggravating that when Mr. Koehler administered a noxious substance to N.F., he administered fentanyl. This was not a “date rape” drug where the victim experienced no lasting side effects – not to trivialize date-rape drugs. Fentanyl is in a significantly more lethal category of noxious substances. Mr. Koehler had to revive N.F. with a “narcon” kit. No expert evidence is required to know that fentanyl can be deadly – it is the source of thousands of overdose deaths in Canada each year: R. v. Parranto, supra. It is extremely fortunate for everyone – including Mr. Koehler – that N.F. did not die. Although Mr. Koehler will be sentenced separately on this charge – meaning it is not aggravating to the other charges – the nature of the substance that he administered is an aggravating factor on the charge of administering a noxious substance.

[33] It is also aggravating that N.F. was Mr. Koehler’s domestic partner. She felt that they were in a romantic relationship. In addition to this being a case of human trafficking, it is also a case of intimate partner violence. That is a statutory aggravating factor: Criminal Code, s. 718.2(a)(ii). There was a very significant impact on N.F. For her, the experience has been life changing. This, too, is a statutory aggravating factor: Criminal Code, s. 718.2(a)(iii.1).

[34] It is aggravating that Mr. Koehler threatened to kill N.F.’s family. That must have been terrifying to N.F., as she knew he had a gun and had seen him fire it. Mr. Koehler in fact went to N.F.’s home, spoke to her mother, and was heading back there when he was arrested.

[35] Finally, Mr. Koehler’s criminal record is aggravating. As noted, he has a conviction for drug trafficking.

Mitigating Factors

[36] The chief mitigating factor in this case is that Mr. Koehler pleaded guilty. By pleading guilty Mr. Koehler took responsibility for the offence. Mr. Koehler also wrote a letter of apology to N.F. In the letter, he apologized for lying to her, deceiving her, hurting her, and betraying her trust. He also apologized for betraying and abusing the trust of N.F.’s mother and brother.

[37] It is also mitigating that by pleading guilty Mr. Koehler spared N.F. from having to testify. Many complainants say that testifying, especially during cross-examination, can be just as traumatizing as the actual events. By sparing N.F. from testifying Mr. Koehler not only saved court resources, he did one of the very few things he could do for N.F.

[38] A mitigating factor is that Mr. Koehler has been productive while in custody. He has taken a number of Ministry courses including: Problem Solving; Substance Use; Supportive Relationships; Goal Setting; Recognizing Healthy Relationship; Life Skills Workshop; Communication Skills; Money Management; and Anger Management.

[39] Mr. Koehler also filed several letters of support:

• His uncle, Barry Boothe, is willing to provide Mr. Koehler with a job at his business, Music System Warehouse, which he has been operating for over 30 years.
• Mr. Koehler’s mother, Linda Koehler wrote a letter outlining his upbringing, his problems, and his plan of action. She described how, unfortunately, Mr. Koehler grew up seeing crime and drugs and was drawn into gang activity. He became involved in guns, drug dealing, and substance abuse. She descried her fear that Mr. Koehler could be dragged into encounters with the police. She corroborated some of Mr. Koehler’s claims of police intimidation. She stated that Mr. Koehler experienced bullying at school. She also described his claims of racist treatment and abuse while playing competitive hockey. He ultimately received a life suspension from the Greater Toronto Hockey League. It discouraged him and he gave up hockey. Linda Koehler currently has custody of Anthony, Mr. Koehler’s 9-year-old son. She says that since he has been charged, there has been a significant change in her son (presumably she means the latest round of incarceration). His incarceration has greatly affected the rest of the family. She described some of the support systems that will be available when he is released.
• Mr. Koehler’s father, Lucky Boothe, also wrote a letter of support. Mr. Boothe is an employee of the City of Toronto where he is a project manager. He descried some of his son’s challenges, including ADHD and a learning disability. He also described some of the support systems that will be available on release.
• Nadene and Nadeka Boothe, Mr. Koehler’s sisters, also wrote a joint letter of support.
• Abdi Mohamud was a mentor and counsellor to Mr. Koehler at the Child Development Institute’s (“CDI”) preventive mental health services. He is available to continue counselling Mr. Koehler and will remain supportive if he is able to do the work of attempting to right himself, even though Mr. Koehler has aged out of CDI’s services.
• Family friends Rohani Seddiq (who is a youth community worker) and Ronda Murphy (a community recreational supervisor in Parkdale) also provided letters of support.
• A letter of support was written by Maya Semila, an addiction counsellor at the Toronto East Detention Centre. She described the counselling that Mr. Koehler has been taking regarding substance abuse. She says that he has shown initiative and diligence in following up and taking counselling.

[40] Mr. Koehler described his plan upon release from custody. The fact that he has a plan is mitigating. The focus of Mr. Koehler’s plan is to work with his uncle at his business, Music System Warehouse, from Tuesdays to Saturdays. He intends to enrol in and actively attend Narcotics Anonymous five days per week. He intends to enroll in a business management course at Humber College as well as an apprenticeship program to become a plumber.

[41] The mitigation represented by the plan of action is tempered, unfortunately, by the fact that Mr. Koehler has not done well on bail. Mr. Koehler was arrested on January 23, 2020. He was released on a surety bail on April 1, 2020. His father was his surety. He was placed on house arrest with a GPS monitor. On March 1, 2021, 11 months later, Mr. Koehler’s father revoked his bail after an “assault radio call” to the police. His father denied that there had been an assault but wanted his son removed from the house. On March 15, 2021, Mr. Koehler was released on another surety bail to his mother and his aunt. He was to wear an ankle monitor. On April 5, 2021, about three weeks after his second release, Mr. Koehler was driving with his mother when he became violent. He ripped his ankle monitor off and threw it out of window of the car. He also took his mother’s phone and threw that out of the car. He took the car and disappeared. On May 3, 2021, Mr. Koehler’s lawyer asked to be removed from the record as she could not reach her client. Mr. Koehler was arrested on May 13, 2021. He has been in custody ever since.

[42] Mr. Koehler’s behaviour while on bail is obviously not an aggravating factor and I do not treat it as an aggravating factor. It does, however, give me some pause when I consider his prospects for rehabilitation. While I accept his assertion that the last 3 ½ years that he has spent in custody has significantly affected him, I think his prospects are uncertain. I believe that he is sincere when he says that he wants to change, and I accept that he has matured, but his behaviour on bail tells me that it will be a difficult road for him. Accordingly, while the plan of action is a reasonable one and I treat it as a mitigating factor, the mitigation is limited.

The Appropriate SOIRA Order

[43] Ms. Gharabaway argues that Mr. Koehler should be subject to a lifetime SOIRA order due to the multiple counts that give rise to such an order.

[44] Sexual assault is a primary offence under the SOIRA provisions: Criminal Code, s. 490.011(1)(xvii). Where a court convicts an offender of a primary offence, it shall make a SOIRA order unless it is satisfied that there is no connection between the making of the order and the purpose of assisting law enforcement; or, that the making of the order would be grossly disproportionate. Where a court makes a SOIRA order it ends 20 years after it is made if the offence carries a maximum sentence of 10 or 14 years: Criminal Code s. 490.013(2)(b). The maximum penalty for sexual assault is ten years.

[45] Mr. Koehler has not satisfied me that there would be no connection between the making or the order and the purpose of assisting law enforcement in the investigation of sex crimes. Mr. Koehler is a repeat offender. With his experience he is now well-versed in the ways of human trafficking, the sex trade, and the use of sexual violence to control his victim. I am not saying that he will repeat his behaviour, but should he do so the consequences to the next victim could be just as, or more devastating as they were to N.F. I am also not satisfied that the impact of the making of the order on Mr. Koehler’s privacy or liberty is grossly disproportionate to the public interest in protecting society. Although Mr. Koehler need only satisfy the court on one ground, I find that he cannot satisfy either. In coming to this conclusion, I apply the factors set out in s. 490.012(4). The sexual assaults included vaginal and anal penetration. They were committed in the context of Mr. Koehler pimping N.F. The relationship involved intimate partner violence. All the circumstances point towards the making of an order.

[46] What is the appropriate length of the SOIRA order? To make a lifetime SOIRA order, the offender must be convicted of more than one designated offence: Criminal Code, s. 490.013(3)(a). The court must also be satisfied that the offences demonstrate or form part of a pattern showing that the offender is at an increased risk of committing a sexual crime.

[47] Administering a noxious thing, human trafficking, and receiving a material benefit from human trafficking are all secondary offences: Criminal Code, s. 490.011(1)(vi), (xi), and (xii).

[48] Pursuant to s. 490.012(5), the court shall make an order in respect of a secondary offence only if satisfied beyond a reasonable doubt that the offender committed the secondary offence with intent to commit a primary offence. In other words, for me to make an order in respect of the secondary offences I would need to find that they were committed with the intent to commit sexual assault. Respectfully, I do not think I can make that finding. Mr. Koehler was first and foremost a pimp who used sexual violence in the context of an intimate partner relationship where his intimate partner was also his employee. The violence was part of the control. Prior to involving N.F. in the sex trade, they were involved in a consensual relationship. I see no evidence that he committed human trafficking or administered a noxious thing in order to sexually assault N.F. It was the other way around: he sexually assaulted N.F. after he began to exploit her and use her for his own financial and sexual purposes.

[49] Accordingly, I decline to find that a lifetime SOIRA order should be made in respect of multiple offences. The length of the order will be 20 years.

“Summers” Credit For Time Spent In Custody

[50] Mr. Koehler was initially in custody on these charges from his arrest on January 24, 2020, until March 31, 2020, a period of 68 days. He was then in custody from March 1, 2021, to March 15, 2021, a period of 14 days. He has now been in custody since May 13, 2021, until sentencing today, a period of 1287 days. The total is thus 1369 days. That is about 45.6 months. At the rate of 1.5:1 as set out in s. 719(3.1) of the Criminal Code, that works out to 2053.5, or rounded up to 2054 days. That is the equivalent of just about 68.45 months.

“Duncan” Credit For Time Spent In Custody

[51] Mr. Koehler has spent all his time in custody at the Toronto East Detention Centre. The incarceration summary indicates that he was locked down for 361 days. He was in custody during much of the Covid-19 pandemic. He was also on droplet protection for 43 days.

[52] Mr. Koehler filed an affidavit describing some of the conditions of his stay at Toronto East. He made numerous allegations of poor treatment. John Lawson, the Toronto East Detention Centre Security Manager, responded to some of the allegations in Mr. Koehler’s affidavit.

[53] In his affidavit Mr. Koehler described some of the conditions of his stay. During his first stay in custody, a period of 68 days, he was threatened due to the nature of his charges. He was assaulted on his range and at one point moved to a special handling unit for his own safety. He had only a limited amount of exposure outside his cell. He says that he was generally in his cell for 23 hours per day. He had limited access to fresh air or showers.

[54] Mr. Koehler was released on March 31, 2020, but went back into custody on March 1, 2021. He was initially placed in an isolation unit for Covid purposes. He was released on March 15, 2021 but went back into custody again on May 13, 2021.

[55] When he went back into custody in May 2021, Mr. Koehler was again placed in a Covid isolation unit. He had multiple days where he was not let out of his cell. He was then placed on a regular range. He says that he had to be moved when other inmates discovered his sexual assault charges. He then spent time in a special housing unit and a maximum security unit. He was very secluded in that unit, and terrified of the other inmates. He says that no cleaners came in to sanitize the range. He says that he asked to be transferred, but the correctional officers ignored that request. Mr. Lawson responded that he has searched the records and could find no record of any written request to change units.

[56] Mr. Koehler asserted that correctional officers constantly woke him up at night, searched his cells numerous times, and took his sheets, forcing him to sleep without a blanket or a cover. Mr. Koehler also stated that clean sheets are rarely given at the Toronto East – he often had to sleep on the same sheets for 3 or 4 months at a time. In his response, Mr. Lawson disputed both assertions. He stated that inmates are provided with two bedsheets and a blanket. In the winter they are allocated two blankets. He states that sheets are never removed unless they are replaced with laundered sheets and blankets at the end of the search, and inmates are never left without blankets or sheets. He also stated that bed sheets are exchanged bi-weekly with laundered sheets and that inmates are never left for months without a sheet exchange.

[57] Mr. Koehler asserted that due to the extensive lockdowns he only accessed the yard once or twice per month and has had rare access to the shower. In July 2023 was transferred to a regular unit and forced to triple bunk. He contracted covid in the institution and was very sick for two weeks. It was very difficult to access programs, have a haircut, or get into the gym. He stated that correctional officers have taken away his hygiene products or tossed his hygiene products into the toilet.

[58] Troublingly, Mr. Koehler told correctional officers that he was having stomach pain. He says that they ignored that. He states that when he was taken to see a doctor outside the institution, that doctor said that he had had a stomach infection for two years. He was eventually taken to a hospital where he was diagnosed with H-pylori infection and given special anti-biotics.

[59] Mr. Koehler also described trouble with his shoes. He complained of ankle and knee problems and often had to walk around the range barefoot. Eventually he received new shoes. In his response, Mr. Lawson recalled speaking to Mr. Koehler about this issue in July 2024 and advised him to speak to the doctor. Mr. Lawson did not receive a note from a doctor about this issue but made an exception and issued new shoes to Mr. Koehler.

[60] It is very difficult to assess the impact of jail on Mr. Koehler. He has legitimate complaints: there have been a significant number of lockdowns, and triple bunking is a problem at the Toronto East Detention Centre. Being on droplet protection during the Covid pandemic was undoubtedly a hardship, as judges of this Court and the Ontario Court of Justice have regularly observed. Triple bunking and lockdowns are especially harsh. In particular, the untreated medical issue is especially troubling. It is utterly unacceptable that Mr. Koehler had a long-running untreated stomach infection.

[61] That said, I cannot accept at face value those assertions that are disputed by Mr. Lawson, and I do not accept them. As I have said, I do not doubt that Mr. Koehler has experienced harsh conditions of custody and is entitled to mitigation: R. v. Duncan, 2016 ONCA 754. As Doherty J.A. stated in R. v. Marshall, 2021 ONCA 344, however, at para. 53, the Duncan credit is not a deduction from an otherwise appropriate sentence, but rather a factor to be taken into account. Duncan credit can not justify an unfit sentence. As my colleague Kelly J. stated in R. v. T.T., supra, at para. 34:

In light of Marshall, the practice of assigning a credit of a specific number of days or months to punitive conditions of presentence custody is not to be encouraged. The reason? It may skew the fact that the harshness of pre-trial custody is only one of many factors that go into the determination of an appropriate sentence. That said, presentence custody is a relevant consideration on sentencing.

[62] Accordingly, I treat the harsh conditions of custody as an important mitigating factor, especially the untreated stomach infection, but I decline to credit a specific number of days or use a mathematical formula.

Principles Of Sentencing And Sentence Imposed

[63] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principles of denunciation and deterrence are paramount in crimes of human trafficking and exploitation, but those principles must be balanced by rehabilitation and totality. At the end of the day, the goal is a fit and proportionate sentence, but the challenge in any sentencing is to balance all the relevant principles. On the one hand, Mr. Koehler committed terrible crimes against N.F., abused her, sexually violated her, controlled her with drugs, and administered fentanyl to her. On the other hand, Mr. Koehler appears to be genuinely remorseful, is relatively young, has apologized and taken responsibility for his actions, and has at least some rehabilitative potential. The sentencing objectives of denunciation, deterrence (general and specific), restraint, and rehabilitation must all be balanced. As well, the principle of totality must be applied – a sentence must not be so severe that it crushes all hope of rehabilitation.

[64] One way to assess Mr. Koehler’s actions is to apply the “Tang” principles: R. v. Tang, 1997 ABCA 174, [1997] A.J. No. 460 (C.A.). See also: R. v. Lopez, 2018 ONSC 4749 at para. 64; and R. v. A.E., supra, at para. 56. I make the following observations:

• Mr. Koehler exercised a very high degree of control over the activities of N.F.
• Of the $4000 earned by N.F. while she was under Mr. Koehler’s control, he kept $3000.
• The pimping scheme involved one complainant, N.F.
• N.F. was not underage but she was young, and working as a fast-food delivery person when they met.
• The working conditions for N.F. were exploitive: she was required to service customers at Mr. Koehler’s direction, provide services as directed by Mr. Koehler, and had no personal autonomy – Mr. Koehler directed almost every aspect of her life.
• The exploitive conduct lasted for just under three months. While that may not seem long, it was undoubtedly a lifetime for N.F.
• Mr. Koehler used a significant amount of violence on N.F., and caused her a lasting brain injury.
• Mr. Koehler supplied and administered drugs to N.F.
• The exploitation had a long-lasting and significant effect on N.F.
• Mr. Koehler did not just compel sexual favours from N.F., he sexually assaulted her.

[65] When I consider cases set out by both counsel and look at the range of sentence, I find that the ten-year sentence suggested by Ms. Gharabaway is well within the global range when all factors are taken into account, although it is at the high end considering the guilty plea and the harsh conditions of custody. I find that the low end suggested by Ms. Petrouchinova, 5 years, or just under a time-served sentence, is simply too low. It would result in an unfit sentence and would not reflect the gravity of these offences. The higher end of the range she suggests, 7 years, is closer to the mark, but in my respectful view still not sufficiently denunciatory.

[66] When I consider all of the factors, I find that the human trafficking and material benefit offences in this case are serious. They tend to the middle of the range when I apply the Tang factors. Ordinarily such things as sexual abuse or assaults on the victim are aggravating factors. In this case, however, Mr. Koehler is being sentenced separately for those offences. On their own, therefore, the human trafficking and receiving a material benefit from human trafficking convictions merit sentences in the range of 5-6 years for each, given the range of sentence set out in the cases. On its own, the sexual assault conviction merits a sentence in the range of 4 years when I consider the principles in R. v. A.J.K., supra. The administering a noxious substance on its own merits at least another 2-3 years in the penitentiary given the nature of the substance and the resulting overdose. The assault causing bodily harm and unlawful confinement offences merit sentences in the lower penitentiary or upper reformatory range. Sentencing principles suggest that the human trafficking and material benefit sentences could be concurrent to each other (and in accordance with the principle of totality will be), but all the other sentences should be consecutive. That would translate to a global sentence in the range of 12 to 14 years before any credit for harsh conditions of custody or accounting for the principle of totality. I say this explicitly so that Mr. Koehler understands just how seriously the courts treat this offence. In sentencing Mr. Koehler, as I have already mentioned, I must also respect the principle of restraint and the principle that sentences should not be unduly long or harsh: Criminal Code, s. 718.2(b) and s. 718.2(c).

[67] When I consider the harsh conditions of pre-sentence custody, and the principle of totality, as well as the guilty plea, the fact that N.F. was spared from testifying, and the principles of rehabilitation, general and specific deterrence, and denunciation, I find that a global sentence of 7 ½ years, or 2,738 days, is appropriate. Mr. Koehler is credited with 2054 days thus leaving 684 days (or just under 23 months) left to serve.

[68] The warrant of committal will read as follows:

• Count 1: Human trafficking – 1825 days (5 years), time served.
• Count 2: Receiving a financial benefit – 1825 days (5 years) concurrent to count 1, time served.
• Count 6: Sexual assault – 913 days (2 ½ years) consecutive to count 1, with credit for 229 days, 684 days left to serve.
• Count 10: Assault causing bodily harm – 730 days (2 years) consecutive to count 1 and concurrent to count 6 with credit for 196 days, 501 days left to serve.
• Count 18: Unlawful confinement – 730 days (2 years) consecutive to count 1 and concurrent to count 6 with credit for 196 days, 501 days left to serve.
• Count 20: Administering a noxious thing – 730 days (2 years) consecutive to count 1 and concurrent to count 6 with credit for 196 days, 501 days left to serve.

[69] There will also be the following ancillary orders:

• A DNA order in relation to the assault causing bodily harm and sexual assault counts, as they are both primary designated offences.
• A s. 109 order for life.
• A non-contact order with N.F. while Mr. Koehler remains in custody.
• A restitution order in the amount $3000.
• Forfeiture of seized property, from which restitution can be made to N.F.: Criminal Code, s. 462.49(2) and s. 740.
• A SOIRA order for 20 years.

[70] On the single count of fail to comply with a recognizance, there will be a sentence of 30 days concurrent to the sentence Mr. Koehler is now going to serve.

R.F. Goldstein J. Released: November 25, 2024

COURT FILE NO.: CR-22-30000024-0000 DATE: 20241125 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING – and – JAMAAL KOEHLER REASONS FOR SENTENCE R.F. Goldstein J.