Court File and Parties

COURT FILE NO.: CR-23-9 DATE: 20241115 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – SHELLEY HAWKE Defendant

Counsel: H. Palin and H. Donkers, for the Crown S. Jeethan, for the Defendant

HEARD: May 3 rd and 24 th , July 22, 2024

REASONS FOR SENTENCE

CARNEGIE J.

[1] Ms. Shelley Hawke has pled guilty to one count of obtaining a material benefit from the sale of sexual services, contrary to s. 286.2(1) of the Criminal Code. Her involvement in her son’s human trafficking activities spanned from September 1, 2018, through March 31, 2020. She facilitated the transfer of tens of thousands of dollars in her banking accounts from her son receiving some benefit from that, including gifts, dinning and a new vehicle. She booked hotel rooms to facilitate the sale of sexual services, shielding her son’s involvement from notice. And she transported the victims to these arranged appointments on occasion.

[2] While she professes ignorance about any coercive or exploitative relationships, she acknowledges that she knew her son was profitably involved in this prostitution for which she was a material beneficiary. However, she claims that she then mistakenly believed that prostitution was legal.

[3] Jordan Hawke, the defendant’s son, has pled guilty to human trafficking, procuring prostitution, obtaining a material benefit from prostitution, forcible confinement, making child pornography, assault and laundering proceeds of crime offences with respect to 7 female victims. He is pending sentencing.

[4] Joel Ramocan, Jordan Hawke’s friend, pled guilty to procuring offences with respect to two of Jordan Hawke’s female victims, as a limited party to Jordan Hawke’s broader offences. On September 24, 2024, he was sentenced to 30-months incarceration.

[5] Here, I must craft a proportional sentence that is restricted to Ms. Hawke’s culpability. I must balance her degree of blameworthiness against the seriousness of all prostitution related offences and, in so doing, express the community’s revulsion at the commodification of sexual services and the resulting harm that it causes victims and the community at large.

Factual background

[6] The parties filed an Agreed Statement of Facts, Exhibit 1, outlining the global offence narrative, including Ms. Hawke’s distinct involvement, as well as background information respecting the parties involved and the scope of their criminal activity.

Circumstances of the Offence

[7] For four years, between 2016 and 2020, Jordan Hawke trafficked and/or ‘pimped’ five young female complainants, attempting to and/or using for recruitment, and assaulting two other complainants. He has pled guilty to 10 criminal offences respecting these seven victims, including three counts of human trafficking, three counts of procuring prostitution, one global count of receiving a material benefit from the sale of sexual services, one count of distributing intimate imagery, one count of assault and one count of money laundering. His activities were coercive, exploitative, parasitic and prolonged. In general, he recruited victims, managed advertisements for their services, dictated the schedule and services they would provide and disproportionately profited from their sexual service returns.

[8] As noted, Ms. Hawke is Jordan Hawke’s mother. In many respects she meaningfully enabled his offence cycle by shielding him from exposure through the use of her own bank accounts, booking hotel accommodations for the servicing of ‘Johns’ and often driving the victims to various hotels to facilitate the sale of sexual services. In the process, she received a material benefit from Jordan Hawke’s criminality.

[9] Ms. Hawke was involved in a variety of respects, including booking hotel rooms for the purpose of facilitating the sale of sexual services, driving the victims to “appointments” with ‘Johns’, and fronting and managing monetary transfers through her bank accounts of tens of thousands of dollars.

[10] Between June and December of 2016, Jordan Hawke trafficked B.S. compelling the sale of sexual services. Ms. Hawke assisted her son by booking hotel rooms and occasionally driving victim B.S., who was 17 years old, to scheduled “appointments” with ‘Johns’. She had been groomed in this activity believing she was Jordan Hawke’s girlfriend, only to find out otherwise and that he was ‘pimping’ a number of women at the time. B.S.’s parents ultimately filed a Missing Person’s report which complicated their arrangement and prompted Ms. Hawke to continue driving her to designated hotels. Ultimately, over the six-month arrangement, Jordan Hawke kept half of B.S.’s approximate $30K in earnings.

[11] Between September 2018 and March 2020, Jordan Hawke trafficked K.D. compelling the sale of sexual services. She was 18 years of age when this activity commenced, having first met Jordan Hawke when she was 16 years of age and believing that she was his girlfriend. Over this period of time, Ms. Hawke and her daughter, C.W., would drive K.D. to hotels for scheduled “appointments”. C.W. often booked the hotel rooms for K.D. and would be compensated by Ms. Hawke for the costs. During this timeframe, Jordan Hawke, C.W., Ms. Hawke and K.D. would occasionally have expensive dinners paid for by the proceedings of K.D.’s sale of sexual services. By March 2020, K.D. had earned over $100K respecting the sale of her sexual services and turned over approximately $75K to Jordan Hawke. Further, before and after K.D. left Jordan Hawke, he profited from the sale of her intimate imagery on an ‘Only Fans’ account.

[12] Victims B.S., K.D. and R.R. reported to police the Jordan Hawke used the proceeds of the sale of sexual services to purchase various assets and cryptocurrency. He advised that he intended to purchase a condominium. Police located electronic communications with Ms. Hawke confirming Jordan Hawke’s plan to purchase real property.

[13] As part of his operation, Jordan Hawke deposited or had deposited monies from the sale of sexual services into accounts held by Ms. Hawke, either using cash or e-transfers. Both Jordan Hawke and Ms. Hawke had access to these accounts. These monies were then spent, transferred to third parties, or converted to cryptocurrency. In particular, Ms. Hawke’s financial involvement included:

(1) between February 28 th and October 22 nd , 2020, Ms. Hawke’s bank accounts received 36 deposits from ‘Only Fans’ totalling $41,515 attributable to K.D.’s distributed imagery;

(2) between September 25, 2018 and December 24, 2019, Ms. Hawke’s bank accounts received $40,601 from online sports betting conducted by Jordan Hawke from the proceedings of the sales of sexual services;

(3) between October 27, 2018 and September 14, 2021, Ms. Hawke transferred $59,249 from her bank accounts and an additional $93,084 from cryptocurrency was transferred into a Coinsquare cryptocurrency account. In this same period, $91,254 was transferred back to bank accounts and $61,735 was withdrawn;

(4) generally, over the offence cycle, police examined Ms. Hawke’s bank accounts which additionally revealed that:

(i) $26,088 was deposited and $88,556 was withdrawn;

(ii) $89,428.98 was received from Coinsquare, a Canadian cryptocurrency exchange company;

(iii) $21,475 was transferred to Jordan Hawke’s father;

(iv) $4,820 was transferred for hotel and motel expenditures;

(v) $41,921 was transferred by K.D. while she was trafficked; and

(vi) $800 was transferred to Mr. Ramocan’s family members.

[14] When police executed a search warrant at Ms. Hawke’s residence additional monies were found relative to this trafficking/prostitution investigation, including:

(1) a box with envelope full of cash totalling $8,265;

(2) TD bank account statements showing deposits from Coinsquare of $416.62 and $9,187.50, followed by multiple ATM cash withdrawals or e-transfers out;

(3) a list on Ms. Hawke’s bedroom nightstand with Jordan Hawke’s name and what appeared to be ‘money tracking notes’;

(4) an RBC money order from August 25, 2020 for $20,682.44 in Ms. Hawke’s name with a note that it was used to purchase her vehicle, in cash. Apparently, Jordan Hawke won this money on a sports bet, financed through the sexual services proceeds, and bought his mother a car; and

(5) various “high-end designer goods”.

[15] As part of this investigation, police seized and searched various electronic devices revealing communications between Jordan Hawke and Ms. Hawke, including:

(1) references to an intended condominium purchase by Jordan Hawke;

(2) various money transfer discussions between accounts identifying both Jordan Hawke, C.W. and Ms. Hawke’s involvement;

(3) various discussions respecting requests by Jordan Hawke for C.W. to purchase cryptocurrency for him;

(4) a conversation between Jordan Hawke and Ms. Hawke wherein she refers to one of the victims as “hired help” and a “hooker”;

(5) references to a “new family member” meaning a new escort recruit, and expressed concerns about Mr. Ramocan sleeping with her;

(6) discussions where Ms. Hawke confirms that she is keeping money in envelopes;

(7) discussions about purchasing a property that they could represent as a rental and, therefore, a legitimate source of income; and

(8) photographs of them with K.D. at a restaurant.

[16] A warrant for Jordan Hawke’s arrest was issued on June 11, 2020. A media release attempting to locate him was issued on July 13, 2020. On July 22, 2020, London police contacted Ms. Hawke and informed her that her son was wanted. Ms. Hawke falsely denied knowing his whereabouts. Thereafter, Jordan Hawke hid from police with the assistance of family members, including Ms. Hawke. On September 8, 2021, police were conducting surveillance upon Ms. Hawke’s residence when they observed Jordan Hawke and Ms. Hawke get into a vehicle and leave the residence. They were then both arrested.

Circumstances of the Offender

[17] Ms. Hawke is 56 years old. She is a first-time offender having pled guilty to this offence. She is the mother of four children, one being her co-accused Jordan Hawke and another co-accused, her youngest daughter, C.W. Early in life, she commenced a relationship stemming her teenage to mid-20s years, resulting in the birth of two daughters and a son. When this relationship ended, she maintained custody over her children. In her early 30s, she married for the first time and was divorced a few years later. Her youngest daughter (C.W.) was born of this union. She reports that this marriage ended as a result of intimate partner violence. She married a second time in 2010 and that marriage also lasted a few years. She is separated from that partner and has not become involved in any further relationships since.

[18] Until this offence, Ms. Hawke had a stable employment history, including 16 years as a “dietary aid” in a nursing home. She enjoyed this work but lost it once she was charged and her employer learned of her involvement through media coverage. She presently supports herself through government assistance while she addresses her own rehabilitative needs. She is pessimistic that she will be able to return to like employment given the necessity for sensitive person criminal record check clearance.

[19] Ms. Hawke has a history of substance abuse. She has struggled with alcohol abuse throughout her adult life. She advised the Pre-Sentence Report author that she did not believe alcohol became a problem for her until she was between the ages of 35 – 40. This, however, belies her disclosure that the Children’s Aid Society had concerns about her alcohol abuse while her children were young causing their temporary relocation to her mother’s care when she attended for residential treatment. Again, after her first marriage dissolved, she recognized she was still unhealthy and sought out residential treatment. She eventually relapsed and continued to abuse alcohol until approximately one year before she was charged. When she was released on bail in 2021, she returned to daily alcohol abuse as a coping mechanism for her heightened stress. In the summer of 2021, she fell down some stairs while intoxicated and injured her shoulder requiring surgery. As part of her rehabilitative efforts, she attended a four-week treatment program from October 8, 2023 through November 2, 2023 and, then, was referred for out-patient substance abuse programming in December of 2023. She reports abstinence since September 2023.

[20] Beyond her substance abuse struggles, Ms. Hawke is also being treated pharmacologically for depression and anxiety. She has reportedly attended a few counseling sessions but did not find them helpful. Nevertheless, she is presently focusing her efforts on self-care and resolution of these issues pending the completion of the sentencing hearing. She has reportedly isolated herself since being charged, attributing it to her shame and embarrassment.

[21] Her relationships with her children are strained. She reports that she does not have a positive relationship with her two older daughters. One of these older daughters has not wanted any contact with her for several years and the other has cut off contact since she was charged. She has historically been close to her son, Jordan Hawke, and youngest daughter, C.W., but since she was charged, I presume as a result of bail restrictions, she has not been in contact and has missed out on meeting her new granddaughter. She is hopeful that she can rebuild her relationship with her children.

[22] Ms. Hawke spent five days in custody upon her arrest. There have been no allegations of any breaches of her bail terms which have been in effect for over three years.

[23] Ms. Hawke expressed a fear of returning to custody to both counsel and the Pre-Sentence Report author. She worries about her ability to cope with this potential outcome. Counsel describes her as “emotional and terrified” at the prospect and that, as a result, she has been specifically deterred by the five days she spent in pre-sentence custody.

[24] She maintains some support in the community. Beyond her mother, her brother remains supportive and describes the offender, however naively, as someone who is “easy going” who has always been a “rule follower” and has been following the “straight and narrow” path. He believes this conduct was entirely “out of character” for this offender.

[25] Ms. Hawke describes herself as a “good person” who has “never been in any trouble” and would “never intentionally do anything to bring harm to anyone.” With respect to this offending conduct, she expressed to her Pre-Sentence Report author that she felt shame and remorse. She feels “a lot of guilt and wishes she could take it all back and ask her son more questions.” She does recognize that she made poor choices. She acknowledges that she was aware that the victims were “escorts”, but she believed that they were “willingly leading their chosen way of life.” She had never seen any of the victims “in a bad way” and never “questioned the situation because she did not feel it was any of her business.” Her son sent her money to her bank account and would then transfer it out again.

[26] Contrary to her counsel’s submissions, Ms. Hawke told the Pre-Sentence Report author that she “did not benefit from any of the money and never spent any of the money that her son transferred into her account. She did not believe her son was doing anything illegal and never expected to be charged as a result of his actions.” She reports that she is no longer able to hold a bank account at any financial institution in Ontario.

[27] Her perception of her moral culpability aside, with respect to her background, I credit Ms. Hawke for her openness and candor.

Victim Impact

[28] Victims have submitted Victim Impact Statements, Exhibits 2 – 4, respecting the involved offenders’ sentencing hearings. Relevant to Ms. Hawke, I have statements from both victims K.D. and R.R. as well as comments they made to the Pre-Sentence Report author.

[29] While K.D. does not describe or comment upon her interactions with Ms. Hawke as part of her Victim Impact Statement, the reality of being trafficked and exploited has had a profound and lasting impact upon her life. It has, not surprisingly, impacted her capacity for trust and future intimacy with others. She lost a valued period of her life which would otherwise have been focused upon completing her secondary school education and furthering her bonds with her family. As she tries to heal from this 18-month period of abuse, she reflects upon her suicidal ideation. Poignantly she commented: “No matter how many times I tell myself I’m over it all, and I’m healed, I’m not, I’ll never be, [it] left scars on me that only I can see and feel.” In some way, she acknowledges pride that she was able to bring an end to her abuse and prevent the offenders from harming others. She has every reason to feel proud.

[30] K.D. described Ms. Hawke as an “awful woman”. She reported to the Pre-Sentence Report author that Ms. Hawke would often drive her to hotels and at times had dinner with her and Jordan Hawke at restaurants. She is confident that Ms. Hawke was aware of her negative circumstances, reporting that she and her son would “laugh during dinners about how many clients K.D. would have to take so they could afford dinner.” This attribution, it must be noted, is categorically denied by Ms. Hawke, and the Crown has not sought to prove otherwise. I reference it merely to give voice to the victim’s concerns which highlighted this exchange.

[31] Further, while victim R.R. did not specifically address Ms. Hawke in her Victim Impact Statement, she made comments to the Pre-Sentence Report author and, otherwise, her overall commentary in the VIS remains relevant to the abuse she suffered. R.R. also believes that Ms. Hawke was well aware of what the circumstances were while she was helping her son. She reports never seeing any of the money she earned and was presented as Jordan Hawke’s girlfriend for approximately 2 ½ years from 2015 to 2018.

[32] Both K.D. and R.R. expressed dismay that Ms. Hawke did nothing to assist them in escaping this abuse.

Legal framework

[33] Section 286.2(1) of the Criminal Code provides that everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(1) – which prohibits the sale of sexual services – is guilty of, as here elected, an indictable offence and liable to imprisonment for a term of not more than 10 years.

[34] Section 718 of the Criminal Code highlights that “the fundamental purpose of sentencing is to protect society…and to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.” To achieve this purpose, the following relevant objectives and principles are noteworthy:

(1) s. 718 highlights denunciation, deterrence, the separation of offenders from society, when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility and acknowledgment of the harm done;

(2) s. 718.04 notes that the court should give primary consideration to the objectives of denunciation and deterrence when an offence involves the abuse of a person who is vulnerable because of personal circumstances – including because the person is Aboriginal or female;

(3) s. 718.1 highlights that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender;

(4) s. 718.2(a) emphasizes the importance of increasing or decreasing a sentence based upon an assessment of the aggravating and mitigating circumstances, and deemed aggravating circumstances include:

(i) s. 718.2(a)(iii.1) notes where there is evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

(ii) s. 718.2(a)(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,

(5) s. 718.2(b) highlights the importance of parity in sentencing so that similar offenders for similar offences in similar circumstances receive similar sentences; and

(6) s. 718.2(d) notes that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances bringing into focus the important principle of restraint, even where, as here, imprisonment is prescribed.

[35] The principle of proportionality is fundamental and has been characterized as the cardinal principal of sentencing requiring the court to consider the gravity of the offence and the moral blameworthiness of the offender. As the Supreme Court said in R. v. Lacasse, 2015 SCC 64, “the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be.” This fundamental principle is central to the maintenance of public confidence in the criminal justice system. It demands that the punishment “speaks out against the offence and punishes the offender no more than is necessary.” In so doing, it seeks to balance the principle of restraint with the importance of holding offenders accountable for their actions. The moral blameworthiness of the offender is important. Offenders who intentionally cause harm should be subjected to a greater punishment than those who did not intend the harm that flowed from their conduct. Sentencing must remain, however, a highly individualized task.

[36] Further, section 718(d) of the Criminal Code compels me to be mindful of the importance of rehabilitation. Restraint is required, as noted in ss. 718.2(d) and (e), to ensure that an offender is not deprived of liberty if less restrictive sanctions may be reasonable and appropriate and, if custody is required, the least amount of custody necessary to satisfy other principles of sentencing should be imposed.

Bill C-36 – Protection of Communities and Exploited Persons Act

[37] In response to the Supreme Court’s Canada (Attorney General) v. Bedford, 2013 SCC 72 decision, Parliament enacted Bill C-36 as a significant paradigm shift away from treating prostitution as a nuisance and towards an acknowledgement that it is a form of sexual exploitation that disproportionately and negatively impacts women and girls. In the Department of Justice Technical Paper, 2014, Parliament acknowledged the objectives of Bill C-36:

Prostitution reinforces gender inequalities in society at large by normalizing the treatment of primarily women’s bodies as commodities to be bought and sold. In this regard, prostitution harms everyone in society by sending the message that sexual acts can be bought by those with money and power. Prostitution allows men, who are primarily the purchasers of sexual services, paid access to female bodies, thereby demeaning and degrading the human dignity of all women and girls by entrenching a clearly gendered practice in Canadian society.

The purchase of sexual services creates the demand for prostitution, which maintains and furthers pre-existing power imbalances, and ensures that vulnerable persons remain subjected to it.

Third parties promote and capitalize on this demand by facilitating the prostitution of others for their own gain. Such persons may initially pose as benevolent helpers, providers of assistance and protection to those who “work” for them. But the development of economic interests in the prostitution of others creates an incentive for exploitative conduct in order to maximize profits. Commercial enterprises in which prostitution takes place also raise these concerns and create opportunities for human trafficking for sexual exploitation to flourish.

Consequently, Bill C-36 recognizes that prostitution’s victims are manifold; … those who create the demand for prostitution, i.e., purchasers of sexual services, and those who capitalize on that demand, i.e., third parties who economically benefit from the sale of those services, both cause and perpetuate prostitution’s harms.

Accordingly, Bill C-36 seeks to denounce and prohibit the demand for prostitution and to continue to denounce and prohibit the exploitation of the prostitution of others by third parties, the development of economic interests in the exploitation of the prostitution of others…

The difference between the material benefit and the procuring offences hinges on the level of involvement in the prostitution of other persons. As with the procuring offences replaced by Bill C-36, the new procuring offence requires active involvement in the provision of another person’s sexual services; whereas, passive involvement is sufficient to make out the material benefit offence. For example, a “classic pimp” is likely to be caught by both the procuring offence and the material benefit offence, because pimps generally induce or cause others to offer or provide their sexual services and they economically benefit from that activity. In contrast, a person who derives a benefit from the prostitution of others, without actively inciting the provision of sexual services, such as a “bouncer,” who works at a strip club and knows that prostitution takes place there, is only caught by the material benefit offence. This difference justifies the imposition of higher penalties for procuring.

[38] As is evident on this offence narrative and the findings of this court, Jordan Hawke was minimally procuring and otherwise exploiting through trafficking the victims in this matter. Ms. Hawke, however, was more passively supporting his ventures and, in so doing, reaping financial and other benefits for her efforts.

[39] In R. v. N.S., 2022 ONCA 160, the Ontario Court of Appeal found the new Bill C-36 prostitution regime constitutional noting that Parliament had fundamentally changed the lens through which it views prostitution – now, it is viewed as “inherently exploitative and something that must be denounced and discouraged.”

[40] In Canadian Alliance for Sex Work Law Reform v. Attorney General, 2023 ONSC 5197, Goldstein J. identified the third-party targets of the new Bill C-36 legislative regime, “classic exploiters and/or traffickers.” In defining the roles of third parties, the court noted that some were “exploiters and/or traffickers” capable of using “violence, manipulation, drugs, or intimidation (or a combination), to control sex workers.” They can force those selling sexual services to engage in sexual activities against their will, and can take “control of the advertising, finances, housing, clothing, and other aspects of sex work.” The seriousness of this form of abuse and exploitation, both inherent and very real, has been expressed variously by courts in Ontario as a form of “modern-day slavery” and “callous, cruel, and repulsive” acts.

[41] Of course, these findings are well founded in this community and across the country. What was once a dirty secret has now become a glaring public eyesore. With repetition, this community blight leads the news in many urban communities, and London, in particular, is a focus of this concern. The rise of human trafficking and prostitution related ‘pimping’ is well documented. Statistics Canada has reported a “year-over-year increase in the number of police-reported incidents of human trafficking from 2013 to 2023” and more than half of those incidents remain unsolved. Ontario and Nova Scotia have the highest average annual rates of police-reported human trafficking since 2013, acknowledging that this remains one of the most glaring underreported crimes. Specifically, London’s police chief has acknowledged that the majority of cases in Canada are happening in London and the GTA along the 401 corridor. Increasing policing capacity to address this scourge is a priority. And, socially, a recent screening of the documentary Dark Highway at the Forest City Film Festival brings home the point.

[42] I reference these reports because local conditions matter and are relevant to any assessment of the gravity this offence before this court. And, as here, receiving a material benefit from the sale of sexual services is often directly related to human trafficking and prostitution procuring offences. It motivates conduct which creates the harm.

Ranges of sentences for procuring prostitution

[43] The primary sentencing principles for procuring the sale of sexual services is denunciation and deterrence. General deterrence seeks to discourage like minded others from committing similar offences while denunciation requires that a sentence communicate society’s condemnation of the conduct.

[44] While the sentencing common law for receiving a material benefit from the sale of sexual services has burgeoned over the last decade, there is far less established authority respecting cases isolated to this offence alone. Generally, this offence is considered concurrently to other, often more serious offending conduct which includes procuring and advertising offences. As a result, it is often difficult to isolate the comparative import of these cases on a general sentencing range because they are often imbued with the aggravating features of the more serious misconduct.

[45] Keeping that in mind, the Ontario Court of Appeal did offer some direction respecting an appropriate range of sentence for s. 286.2 offences in R. v. Joseph, 2020 ONCA 733. There, while the offender was sentenced on multiple other offences, including procuring, advertising and making child pornography, the court set a generic baseline for material benefit offences as starting at 12 months as a low end “guidepost”. The court did not comment upon the capacity of a conditional sentence order to address the predominant sentencing principles of deterrence and denunciation.

[46] While I was provided with considerable caselaw from the parties, I will reference only the most compelling and relevant decisions which assist me in the establishment of an appropriate range of sentence for this conduct.

[47] In R. v. Bedard-Morin, 2022 ONCA 844, the offender pled guilty to a count of receiving a material benefit from the sale of sexual services from three victims. No outward violence or coercion was present, although “at its core, this case involved an offence of exploitation.” The profiteering took place over several months. The offender received “more than minimal amount” by way of material benefit. He was the subject of a court order prohibition on contact with one of the victims at the time of the offending conduct and had a significant criminal record. The Ontario Court of Appeal endorsed the imposed sentence of 22 months jail, less pre-sentence custody.

[48] In R. v. Beeransingh, 2022 ONSC 5905, the offender, after trial, was convicted of obtaining a material benefit from the sale of sexual services of three victims over a period of ten years. He was a youthful first-time offender. He was described as a “friend pimp” who split the earnings 50-50 but for some he failed to pay any money. No overt violence or threats were involved. He was sentenced to a maximum reformatory sentence, two years less a day, to be served on a Conditional Sentence Order.

[49] In R. v. Morgan, 2018 ONSC 2007, the offender was convicted of receiving a material benefit from the sale of sexual services after trial. The single victim was 18 years of age, had been working in prostitution, met the offender at a strip club and began an intimate relationship with him. Over the course of four months, the offender became controlling, aggressive and kept the victim’s earnings amounting to approximately $5K per week. The offender had no criminal record. He was sentenced to 18 months incarceration followed by two years of probation and a DNA order.

[50] In R. v. Musara, 2023 ONSC 97, the offender, after a “long trial”, was convicted of a single count of receiving a material benefit from the sale of sexual services. There was no overt exploitation, acts of violence or threats, nor any assistance offered respecting the sale of sexual services. This was a scenario where the court found that the victim was not controlled, directed or influenced by the offender. She was instead quite independent and sold sexual services in connection with another individual, or ‘pimp’. However, he did knowingly receive a material benefit from her over the course of 2 - 4 months by selling her illegal narcotics and encouraged her to continue with prostitution to permit further sales. He had a minimal criminal record. The court was satisfied that his rehabilitative prospects were good. While denunciation and deterrence were important, this was not the “most serious end of the spectrum for such an offence” allowing for a reformatory sentence. Finally, the court concluded that permitting this offender to serve the sentence within the community would not put at risk public safety and help address the problem of over-incarceration of Black offenders. He was sentenced to a conditional sentence of 17 months followed by 12 months probation.

[51] With the benefit of these authorities, I am satisfied that receiving a material benefit from the sale of sexual services garners a starting point range of 12 months, and in isolated scenarios divorced from other more serious exploitative offences, can satisfy the principles of denunciation and deterrence with sentences within the reformatory range.

Positions of the parties

[52] The defence seeks a 2 year less one day conditional sentence order, followed by probation supervision. They argue that the exercise of restraint is necessary based upon this offender’s limited moral culpability. While she was a necessary cog in Jordan Hawke’s broad operation, her lack of knowledge respecting his coercive and exploitative activities is significant. She has pled guilty, accepted responsibility and has no criminal history. She poses no threat to the community and she has strong prospects at rehabilitation. As a result, deterrence and denunciation do not require a traditional custodial sentence.

[53] The Crown is seeking a 2 year period of traditional incarceration, minus enhanced credit for her limited pre-sentence custody amounting to 8 days service. It is argued that only a jail sentence can meaningfully address the aggravating features presented, particularly with respect to the scope of Jordan Hawke’s operation which was meaningfully enabled by this offender’s actions. The Crown points to offence and post offence related conduct to suggest that this offender was fully aware of the wrongfulness of her and her son’s actions, throughout, resting her liability beyond wilful blindness.

[54] Both parties concede that a substantial probation order will foster continued rehabilitative efforts. The Crown seeks an ancillary DNA order which is conceded alongside a forfeiture order for offence related property.

Analysis

A fit sentence for this offence and this offender

[55] Proportionality compels me to assess both the aggravating and mitigating circumstances of each case to assist in fashioning a truly individualized sentence. By way of aggravating features, I have considered the following:

(1) the number of victims (seven) involved and its scope makes this entire offence narrative a concerning and more extreme outlier;

(2) the impact upon the victims was profound, and Ms. Hawke both directly and indirectly contributed to that harm. Further, the specific vulnerability of these victims and the knowledge of it can be reasonably imputed to this offender given the extent of her interactions with many of them. For example, K.D. was 18 years of age when procured into the “sex trade” by Jordan Hawke. She had been having trouble at home and school. Ms. Hawke was actively involved in interactions with K.D. Similar circumstances pertain to victim B.S. While I have no evidence of direct contact with some of the victims, her continuing actions indirectly contributed to the harm caused. For example, A.S. is an Indigenous woman who was 22 years of age when procured by Jordan Hawke and had just had her children taken into foster care. She wanted a fresh start to make a better life for herself. Overall, it is not enough for Ms. Hawke to have simply turned a blind eye to how young and obviously vulnerable these victims were, and dismissing them merely as “hired help” and “hookers” is demonstrative of her thoughtless mindset;

(3) the offence timeframe spanned from 2016 to 2021, a considerable period of time enabling protracted harm to the multiple victims while permitting considerable profit until one victim had had enough, and went to police to put an end to it all;

(4) for this criminal venture to flourish for as long as it did, Jordan Hawke had to be shielded from exposure. Ms. Hawke’s involvement in making hotel reservations, transporting the victims to designated rooms and, in effect, attempting to launder the proceeds through her accounts was a necessary and commonly utilized cog in the wheel. Those who are prepared to play this role, and by doing so fashion barriers to detection and apprehension of the principal, enable the scope and duration of the harm caused and must be deterred alongside the principals of the criminal venture;

(5) while the record is not entirely clear, it is obvious that Ms. Hawke was motivated by direct or indirect greed, having profited through the receipt of cash, goods, dinners or a vehicle, or indirectly by enabling the corrupt parasitic profiting of her son;

(6) her actions, which meaningfully aided Jordan Hawke’s unlawful activities, border on party status for procuring prostitution; and

(7) the prevalence of this offending conduct within the local community.

[56] The Crown encourages me to consider the fact that Ms. Hawke’s children were involved as co-accuseds is aggravating. She failed to set an example for them and, instead, encouraged and participated in this common criminal venture. I disagree. I have little evidence of encouragement on the part of this offender towards either her son or daughter. Indeed, this narrative suggests, more than anything else, that Jordan Hawke was the leading force behind this venture and that Ms. Hawke was largely enabling and profiting variously as permitted.

[57] Beyond these considerations, the Crown goes further by arguing that Ms. Hawke was engaged in assisting a “criminal organization” by knowingly facilitating Jordan Hawke’s trafficking operation. The Crown relies upon the analysis in R. v. Alexis-McLymont, Hird & Elgin, 2018 ONSC 1152, whereby Leach J. found that three offenders acted in concert to affect a prostitution operation as a “Cash Gang” in an organized manner, dividing up respective tasks to enhance profit beyond the commission of a single offence.

[58] Whether or not Parliament intended that all parties receiving a material benefit, and assisting to some degree, a prostitution ring to constitute the aggravating feature of benefiting a “criminal organization”, as referenced in s. 718.2(a)(iv), I need determine. Here, I find that Ms. Hawke’s isolated involvement in her son’s prostitution activities does not satisfy me that these actions were for the “benefit of, at the direction of or in association with a criminal organization.” Frankly, were I to be concerned about the presence of a ‘criminal organization’, I would describe this venture as a criminal organization of one. The evidence overwhelmingly points to Jordan Hawke using his mother and sister as shields to further protect his criminal venture, even though they willingly assisted him out of loyalty and a desire for profit. The preponderance of evidence advanced on this guilty plea divorces Ms. Hawke from knowledge respecting the scope and exploitative nature of Jordan Hawke’s activities, and she has expressly denied knowledge of the trafficking and even procuring elements that were present. The Crown has not sought to prove otherwise, as would be required for any aggravating factor. In the face of her expressed denials relating to this knowledge, I am not prepared to infer otherwise. That she was aware that she was profiting and otherwise benefiting from this, at best, prostitution ring, there is no doubt. But I find that this does not invariably lead to knowingly benefiting, being directed by or being in association with a criminal organization.

[59] However, Ms. Hawke’s assertions through counsel that she believed prostitution was legal is patently absurd and rejected. The Crown has amply satisfied me on this evidentiary record, beyond any doubt, that she was fully aware that her son was engaged in illegality and that she was assisting in those pursuits. As noted in Exhibit 1, Ms. Hawke was a party to several text messages with Jordan Hawke wherein they discussed ways to obfuscate the true origin of the profits, including a scheme to buy a rental property as a front for legitimate income. That she blindly acted as her son’s banker for receipts of cash and e-transfers from the victims, made hotel reservations for him, and drove victims to hotel locations as innocent favours is absurd. That she actively assisted with her son’s police evasion for over a year, aware that he was wanted, is telling of not only her motivations but, on this fulsome record, her overall knowledge that goes well beyond a failure, as she suggested to the Pre-Sentence Report author, to ask her son enough questions.

[60] I have also considered a number of mitigating factors relevant to proportionality, including that:

(1) Ms. Hawke has pled guilty which is a formal acknowledgement of remorse. Credit for remorse, however, is attenuated by any acknowledgment of harm done to the victims. I carefully reviewed the Pre-Sentence Report and found no evidence of remorse for the harm occasioned to the victims. As reported: “She stated she did not believe her son was doing anything illegal and never expected to be charged as a result of his actions.” Instead, she feels a lot of “guilt and wishes she could take it all back and ask her son more questions” but, her “poor choices” led to poor consequences for her – she was charged, she was publicly shamed, she lost employment and she can no longer hold any bank accounts. Its all about her. The victims were simply willingly leading their chosen way of life electing, I am to believe, to disproportionately profit her son and herself for their efforts. Counsel cautions that Ms. Hawke’s was instructed not to discuss the victims during the interview – for reasons passing my understanding. Yet, when I raised the issue during the sentencing hearing, that Ms. Hawke appeared most interested in her own victim complex, what I got back during her allocution was more of the same: “I am deeply sorry, this has ruined my life, I have lost my job and its difficult getting any other, I take responsibility for my actions.” Again, not a shred of remorse for the harm done to the victims. Remorse for the perceived “hired help” or “hookers” remains beyond her which, as noted, lessens the impact any acceptance of responsibility affords;

(2) this guilty plea has saved substantial finite administration of justice resources at a time when the pandemic induced backlog has tested the capacity of our justice system. This proceeding, coupled with the co-accused, was slated for a long jury proceeding that has now been avoided. It has brought finality to these proceedings and has sparred the victims the additional trauma of further reliving these events in a public, scrutinized way. Given the uncertainty of the trial process, particularly in complex human trafficking and prostitution prosecutions, this is no small concession deserving of meaningful mitigating credit;

(3) Ms. Hawke is a first-time offender;

(4) Ms. Hawke spent five days in custody which, I am advised, was frightening for her, had its own palpable deterrent effect, and the prospect of returning to custody is terrifying;

(5) Ms. Hawke has been compliant with her judicial interim release conditions for over three years which had staged levels of liberty restraint, and has included separation from family as a necessary adjunct to this prosecution;

(6) Ms. Hawke has struggled with substance addiction much of her adult life, including during periods of this offence narrative. She is currently sober, continues to be receptive to treatment and is being treated for depression and anxiety;

(7) Ms. Hawke has lost long-termed valued employment as a result of this offending conduct. While that is an unsurprising consequence of this offending conduct for someone working with vulnerable persons, the loss of employment is a significant consequence in its own right and can, and here I believe does, constitute a mitigating circumstance; and

(8) it is argued that the stigma of this offending has had a significant, perhaps undue effect upon her life. Ms. Hawke has not only lost her employment, but has isolated herself and moved from Cambridge, Ontario to reside with her mother largely as a result of the negative media attention. While this impact may be described as significant, the stigma of such offending conduct comes with the territory. Arguably, that is entirely the point Parliament intended to make through these enhanced prostitution and trafficking regimes. The stigma attached to this conduct, and perhaps amplified through identification by the media, is to be expected in a serious case of this nature and offers its own form of deterrence – which I concede. Further, I have been presented with no media related content. I am not satisfied that these circumstances, whatever they are, rise to the significant extent of equating to a mitigating factor on sentencing, as noted in decisions R. v. H.S., 2014 ONCA 323 and R. v. Walsh, 2019 ONSC 1286.

[61] Which leaves the cumulative balancing of all these factors to achieve sentencing proportionality. Ms. Hawke’s conduct must be denounced and deterred while appreciating that, from a moral culpability perspective, it is obviously distinguishable from that of her son. Where Jordan Hawke was coercive and exploitative, Ms. Hawke was enabling and, at least on her telling, willfully blind. Ms. Hawke’s conduct must be assessed against a continuum of material benefit wrongdoing, and not be consumed by her son’s aggravated conduct. The seriousness of Ms. Hawke’s conduct is, nevertheless, noteworthy. While in a very real sense Ms. Hawke’s conduct enabled her son’s activities which facilitated vast profits at the expense of the harm caused to the victims, she is not a party to his offences but is instead a principal to it’s profiteering. As a result, overall, her comparative moral blameworthy is considerably lower.

[62] With the assistance of the context provided by the discussed sentencing common law, I conclude that this offender’s conduct was on the higher end of the seriousness scale for this form of offending but on the moderate end of the moral culpability scale. Ms. Hawke is not the classic landlord, seedy hotel or club owner or bouncer knowingly making a buck off their associations with those selling sexual services. Instead, she actively profited, financially and otherwise, from known ‘pimping’ activities. All prostitution related offending causes harm to both the women and girls captured inside this inherently volatile environment, but also to the communities that must endure this disrespect to and blight on human dignity. Profiting from this degradation is particularly reprehensible.

[63] As a first-time offender who has pled guilty, the range of sentence I believe is as suggested by both the Crown and the defence – two years incarceration. How that incarceration should be served is my next consideration.

Is a Conditional Sentence Order appropriate?

[64] While I agree with the Crown that this offence is inherently serious and merits both a deterrent and denunciatory sentence, incarceration is not the only means to achieve these sentencing goals. If violent crimes, even those causing death, do not, per se, exclude consideration of a conditional sentence if the statutory pre-conditions are met, prostitution related offences, as evident above, can and sometimes do qualify.

[65] A conditional sentence is a custodial sentence. It is distinguishable based upon its service within the community – often commonly referred to as ‘house arrest’. However, the imposition of a conditional sentence will only inspire public confidence if it is punitive in a real sense. As the Supreme Court of Canada stated in R. v. Proulx, 2000 SCC 5: “punitive conditions such as house arrest should be the norm, not the exception.” A conditional sentence cannot become little more than a glorified probation order.

[66] Section 742.1 of the Criminal Code outlines the statutory preconditions for conditional sentence consideration, including:

(1) where the sentence of imprisonment imposed is less than two years;

(2) whether service of a custodial sentence within the community would “endanger the safety of the community” and whether it would be “consistent with the fundamental purpose and principles of sentencing”;

(3) the offence is not punishable by a minimum term of imprisonment (as here); and

(4) the offence is not an enumerated exception, like murder or terrorism (as here).

[67] Whether a conditional sentence is appropriate often comes down to whether it can adequately reflect the gravity of the offence and thereby provide sufficient denunciation and general deterrence and whether it can fit under the two-year cap.

[68] As recently reminded by our Court of Appeal in R. v. Ali, 2022 ONCA 736, I must consider whether a conditional sentence is appropriate, even with respect to serious offences. There, the offender was being sentenced for aggravated assault. The court noted that considering whether a conditional sentence is appropriate even in cases where the paramount sentencing principles are denunciation and deterrence involves “considering, and weighing, the ability of a conditional sentence to meet the deterrence and denunciation objectives and other relevant sentencing objectives, including restraint and rehabilitation.” Of course, the Ali decision simply reiterated the Supreme Court’s comments in Proulx, where Chief Justice Lamer noted, that a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence." Punitive provisions, such as house arrest, carry a stigma that should not be underestimated and can provide “a significant amount of denunciation” and “significant deterrence”.

[69] In R. v. Sharma, 2020 ONCA 478, though overturned by the Supreme Court on procedural and interpretative grounds, Feldman J.A. noted that “[e]ven in cases where deterrence and denunciation are the paramount sentencing objectives, a conditional sentence may be appropriate, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served.” The implication is clear, the more serious the offending conduct, the more pressing the need for a denunciatory and deterrent response and, therefore, the more restrictive a conditional sentence must be.

[70] However, Chief Justice Lamer conceded in Proulx that there will be cases “in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct.”

[71] Finally, I consider the implication of Parliament’s November 17, 2022, Bill C-5 response to the Supreme Court’s decision in R. v. Sharma, 2022 SCC 39, from November 4, 2022. Instead of maintaining the existing sentencing regime, which enumerated certain types or classes of offences which did not qualify for a conditional sentence, and which the Supreme Court found constitutional, it stripped away many of the existing restrictions allowing for a broader sentencing assessment. This almost immediate statutory change, when it was not compelled to do so, undoubtedly is a signal from Parliament that conditional sentences remain an effective sentencing tool, even when faced with serious offences. It is reasonable to expect that this legislative development will, as intended, reinvigorate the usage of conditional sentences in appropriate cases.

[72] Here, there is no evidence that Ms. Hawke would pose any risk to public safety if permitted to serve her custodial sentence within the community. Her involvement in this repugnant offence narrative was undoubtedly a function of opportunity and misplaced parental loyalty. She has no criminal history and has been compliant with court orders to date.

[73] The more difficult question is whether the imposition of a conditional sentence is otherwise consistent with the fundamental purpose and principles of sentencing. As I have noted, even where both deterrence and denunciation are paramount sentencing objectives, an appropriately punitive conditional sentence can meet the ends of justice. I believe this is such a case.

[74] Mindful of the scope and involvement of this offender, who was not the principal influencer as was evident in Musara, and in a set of circumstances where there is no connection between her and any coercive and/or exploitative acts, as was the case in Beeransingh, both deterrence and denunciation can be satisfied by the imposition of a restrictive conditional sentence order.

[75] I believe that granting this alternative custodial disposition also meaningfully addresses the sentencing principle of restraint. Ultimately, the pressing aggravating features, including the number of victims, the amount of harm caused (both emotional and financial), and the duration of the misconduct can be addressed through the duration of the sentence. However, that duration, as informed by relevant precedent and, frankly, the Crown’s own position, does not have to be in the penitentiary range.

Disposition

[76] Based upon this reasoning, I conclude that the appropriate duration of sentence for Ms. Hawke is a two years less one day period of incarceration, to be served as part of a Conditional Sentence Order. As Ms. Hawke has already served five days of pre-sentence custody, for which I will grant her Summers credit at a ration of 1.5-1 days, totalling 8 days credit, she will have to serve a total of 722 days on a conditional sentence order.

[77] I will entertain submissions respecting the terms of this order, mindful that for it to have the necessary deterrent and denunciatory effect, it must be punitive in nature. That punitive element will include a substantial period of house arrest in addition to the imposition of GPS monitoring which I believe, on such a serious offence, helps to foster public confidence in the efficacy of the conditional sentence regime.

[78] When that sentence has been completed, in an effort to maintain a sense of security for the victims and foster continuing opportunities for rehabilitative efforts, Ms. Hawke will serve a two year probation term. Again, I will entertain submissions from counsel respecting appropriate terms and conditions.

Ancillary orders

[79] As noted, the Crown seeks a DNA order. Given the qualifying nature of this offending conduct as a “primary designated offence”, under s. 487.04, pursuant to s. 487.051 of the Criminal Code Ms. Hawke will be required to provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act.

[80] The Crown seeks a forfeiture order respecting seized digital devices which constitute offence related property. I will grant this request upon presentation of a draft Order identifying the items in question assuming their nexus to the offence conduct is obvious.

Conclusion

[81] As a result, recognizing the predominate sentencing principles of deterrence and denunciation, Ms. Hawke is sentenced to two years less one day of custody, the maximum reformatory disposition, minus her 8 days of credit for pre-sentence custody, to be served as part of a Conditional Sentence Order. While she does not present a continuing threat to the community, a punitive sentence which substantially restricts her liberty is minimally required to address the gravity of her offending conduct.

[82] In addition, she will serve two years of probation and must provide a sample of her DNA, pursuant to the DNA Identification Act.

M. B. Carnegie

Released: November 15, 2024