Reasons for Sentence

Court File No.: CR-21-10000391
Date: 2025-01-07
Ontario Superior Court of Justice

Between:
His Majesty the King – and – D.A.L.

Appearances:
Monica Gharabaway and Ana Serban, for the Crown
Madalyn Bavaro, for the accused

Heard: November 13, 2024

Reasons for Sentence
(Subject to a publication ban that applies to any information that might identify the complainant or a witness, pursuant to section 486.4 of the Criminal Code)

Vermette J.

Introduction

[1] On September 26, 2024, D.A.L. was found guilty of procuring H.S. to offer or provide sexual services for consideration between February 1 and March 7, 2018, contrary to section 286.3(1) of the Criminal Code.

[2] Mr. L. was originally charged with twelve offences. While he was found guilty of procuring (count 2), the jury found him not guilty with respect to the following charges, which all related to the same time period (February 1 to March 7, 2018):

a. Count 1 (Human trafficking): Did recruit, transport, transfer, receive, hold, conceal or harbour H.S. for the purpose of exploiting her or facilitating her exploitation, contrary to section 279.01(1) of the Criminal Code.

b. Count 3 (Receiving a financial benefit from human trafficking): Did receive a financial or other material benefit, namely a sum of money, knowing that it was obtained by the commission of an offence under subsection 279.01(1) of the Criminal Code, contrary to section 279.02(1) of the Criminal Code.

c. Count 4 (Receiving a financial benefit from sexual services obtained for consideration): Did receive a financial or other material benefit, namely a sum of money, knowing that it was obtained directly from the commission of an offence under subsection 286.1(1) of the Criminal Code, contrary to section 286.2(1) of the Criminal Code.

d. Count 5 (Advertising sexual services): Did knowingly advertise an offer to provide sexual services for consideration, contrary to section 286.4 of the Criminal Code.

e. Count 6 (Exercising control, direction or influence): Did, for the purpose of facilitating an offence under subsection 286.1(1) of the Criminal Code, exercise control, direction or influence over the movements of H.S., contrary to section 286.3(1) of the Criminal Code.

f. Count 8 (Assault): Did commit an assault on H.S., contrary to section 266 of the Criminal Code.

g. Count 9 (Choking, suffocating or strangling): Did choke, suffocate or strangle H.S., contrary to section 267(c) of the Criminal Code.

h. Count 10 (Using an imitation firearm while committing an offence): Did use an imitation firearm while committing an indictable offence, contrary to section 85(2)(a) of the Criminal Code.

i. Count 11 (Administering a noxious thing): Did, with intent to aggrieve or annoy H.S., administer a noxious thing, namely an unknown drug, contrary to section 245(b) of the Criminal Code.

j. Count 12 (Theft of property worth less than $5,000): Did steal an HP laptop, the property of H.S., of a value not exceeding five thousand dollars, contrary to section 334(b) of the Criminal Code.

[3] Count 7 was stayed prior to the jury starting its deliberations. The allegation in count 7 was that Mr. L. did knowingly convey a threat to cause death to Ms. S., contrary to section 264.1(1)(a) of the Criminal Code.

[4] On November 13, 2024, I heard sentencing submissions and reserved judgment. These are my reasons for sentence.

A. Factual Background

1. Facts Not in Dispute

[5] The following facts are not in dispute.

[6] Mr. L. and Ms. S. first met on a dating application in 2017. They met in person between one and three times in 2017. They did not have a serious relationship at that time, but they added each other on their social media.

[7] Mr. L. and Ms. S. reconnected in early 2018 through social media. They reconnected in person when Mr. L. went to Ms. S.’s apartment one night in February 2018.

[8] In early February 2018, Mr. L. was 21 years old. He turned 22 later that month. He was a student at Centennial College and his parents covered his expenses while he was studying. Ms. S. was 22 years old. She was a student at […] University and was working part-time at a grocery store. Her parents paid her tuition fees and her rent. Ms. S. had significant addiction issues. She was drinking alcohol and using cocaine and Xanax. At the time, Mr. L. was also drinking alcohol and using cocaine and Xanax.

[9] After the first meeting at Ms. S.’s apartment in February 2018, Mr. L. and Ms. S. started seeing each other. Sometimes Mr. L. went to Ms. S.’s apartment, sometimes Ms. S. went to Mr. L’s condominium. This was a casual, sexual relationship that was non-exclusive. Mr. L. and Ms. S. would drink and consume substances most of the times that they were together. Mr. L. got the drugs from S.H. Mr. H. was a drug dealer. Mr. L. and Mr. H. met when they attended the same boarding school in Hamilton in 2012-2013. At some point, Ms. S. met Mr. H. through Mr. L. She also bought cocaine and Xanax directly from Mr. H.

[10] At the end of February and in early March 2018, Mr. L. decided to get sober and he started a detox process. Ms. S. helped him through this process. Their relationship came to an end shortly afterwards.

[11] At some point, Ms. S. started working for Mr. H. in the sex trade business. In 2022, Mr. H. pled guilty to human trafficking Ms. S. from March 17, 2018 to February 2019, receiving a material benefit from human trafficking, and assault causing bodily harm on Ms. S.

[12] Mr. L. was arrested on March 20, 2019 and was released 20 days later, on April 9, 2019. From April 9, 2019 to September 27, 2021, he was under house arrest, i.e., he was to remain in his residence 24 hours a day, seven days a week, except (i) for medical emergencies, (ii) for purposes of travelling directly to, from and while at work, and (iii) while he was in the presence of one of his sureties. On September 27, 2021, the Crown agreed to vary Mr. L.’s bail from a house arrest to a 9:00 p.m. curfew. Mr. L. has been on bail for more than 5 years and 7 months. There have not been any police contact after Mr. L.’s arrest, while he was on bail.

2. Findings of Fact with Respect to the Offence of Procuring

[13] Following a trial with a jury, the sentencing judge must do their best to determine the facts necessary for sentencing from the issues before the jury and from the jury’s verdict. The sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand. In doing so, the sentencing judge: (a) is bound by the express and implied factual implications of the jury’s verdict; and (b) must accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty, and must not accept as fact any evidence consistent only with a verdict rejected by the jury. See R. v. Ferguson, 2008 SCC 6 at paras. 16-17 (“Ferguson”).

[14] When the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury. It would be speculative and artificial to attempt to do so because jurors may arrive at a unanimous verdict for different reasons and on different theories of the case: see Ferguson at para. 22. Rather than attempt to follow the logical process of the jury, the sentencing judge should come to their own independent determination of the relevant facts. In doing so, the sentencing judge may find any other relevant fact that was disclosed by evidence at the trial. To rely upon an aggravating fact, the sentencing judge must be convinced of the existence of that fact beyond a reasonable doubt. To rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities. See Ferguson at para. 18 and section 724 of the Criminal Code.

[15] In this case, the jury found Mr. L. guilty of procuring under count 2 on the indictment (but found him not guilty of procuring under count 6). This means that the jury was satisfied beyond a reasonable doubt that Mr. L. procured Ms. S. to offer or provide sexual services for consideration, and that Mr. L. intended to procure Ms. S. to offer or provide sexual services for consideration. In accordance with the case law, the jury was instructed that the term “procure” means “to cause, or to induce, or to have a persuasive effect upon the conduct that is alleged”: see R. v. N.S., 2022 ONCA 160 at paras. 96-98 (“N.S.”).

[16] The jury was told that an accused can procure something in a wide variety of ways. The jury was also instructed that merely being present at the time something happens does not constitute the crime of procuring, and that the Crown must do more than simply show that Mr. L. was physically present in the vicinity when Ms. S. offered or provided her sexual services to another for consideration.

[17] At trial, Mr. L. denied being involved in any sexual services provided by Ms. S. Mr. H.’s evidence was that Ms. S. escorted for him several times in February 2018 to support her drug habit and, to his knowledge, Mr. L. did not know that Ms. S. was working as a sex worker. Given the evidence of Mr. L. and Mr. H., the jury had to accept part of Ms. S.’s evidence in order to find Mr. L. guilty of procuring because this was the only evidence capable of supporting a verdict of guilty. However, since the jury found Mr. L. not guilty on all the other counts on the indictment, the jury clearly did not accept beyond a reasonable doubt significant portions of Ms. S.’s evidence.

[18] It is also clear that the jury did not accept all of the evidence of Ms. S. with respect to the involvement of Mr. L. when she started providing sexual services. Among other things, Ms. S.’s evidence was that Mr. L. set up online advertisements to offer her sexual services on the first night that she worked. However, Mr. L. was found not guilty on the charge of advertising sexual services.

[19] I note as well that Mr. L. was found not guilty of assault for the entire period in issue (February 1 to March 7, 2018). While Ms. S. made a number of allegations of violence against Mr. L. during her testimony, she did not state that there was any physical violence on the first night that she provided sexual services. However, she did give evidence about Mr. L. being very forceful and pushy in the way that he asked for things, and about being confused and feeling pressured and that she could not say no. Despite this, Ms. S. also gave evidence that after the first night, she wanted to continue to do sex work because this was a way for her to have access to drugs and alcohol.

[20] I agree with the Crown that, contrary to the defence’s submission, simply introducing Ms. S. to Mr. H. is insufficient to constitute the crime of procuring. Among other things, this is insufficient to meet the mens rea component of the offence, i.e., that Mr. L. intended to cause Ms. S., or to induce her, or to have a persuasive effect on her to offer or provide sexual services for consideration.

[21] In light of the foregoing, I find that at some point after Mr. L. and Ms. S. reconnected in February 2018, Mr. L. persuaded Ms. S. to offer or provide her sexual services for consideration. However, in light of the other verdicts of the jury, I also find that: (a) there was no exploitation within the meaning of section 279.04 of the Criminal Code on the part of Mr. L.; (b) Mr. L. did not exercise control, direction or influence over the movements of Ms. S. for the purpose of facilitating the offence of obtaining sexual services for consideration; (c) Mr. L. did not knowingly receive a financial benefit that was obtained by or derived from the commission of the offence of human trafficking; (d) Mr. L. did not knowingly receive a financial benefit that was obtained from sexual services obtained for consideration; (e) Mr. L. did not advertise an offer to provide the sexual services of Ms. S. for consideration; and (f) Mr. L. was not physically violent with Ms. S.

3. Pre-Sentence Report

[22] A pre-sentence report (“PSR”) was prepared in this case. The following information is set out in the PSR.

[23] Mr. L. is 28 years old. He was born in England. His father is British and his mother’s family is from Barbados. His parents are now retired. His mother was a lawyer and his father worked in the architectural field. Mr. L. has an older brother who currently resides in the United States.

[24] Mr. L.’s family moved to Dominica when Mr. L. was approximately two years old. Mr. L. described his childhood and upbringing positively, without abuse, substance use or domestic violence. When Mr. L. was five years old, their home was burglarized, and his father’s head was split open with a firearm. Mr. L. stated that he was affected by this incident and that he continues to suffer from panic attacks and anxiety issues.

[25] Mr. L. attended elementary school and part of high school in Dominica. He described his academic performance as above average. He left Dominica in 2012, at the age of sixteen, to come to Canada and attend high school as an international student in a boarding school in Hamilton, Ontario, with the aim of attending university in Canada.

[26] Mr. L. reported that while in grade 12, he experienced severe panic attacks and anxiety issues. He went back to the Caribbean for two months to “freshen up”. He eventually came back to Canada and finished his last semester of grade 12 while living with a family friend from his boarding school.

[27] Mr. L. later attended film school for one year, but he quit because this was not for him. He then attended Georgian College in Barrie to study in the electrical engineering technician program for approximately one year. He subsequently transferred his credits to Centennial College in Toronto.

[28] Mr. L. stated that he started having his mental health issues around that time, and this led to drug abuse problems from late 2017 until the end of February 2018. According to Mr. L., drugs helped him with his anxiety at the beginning, but they made his mental issues worse after a couple of months. Mr. L. reported using cocaine 2-3 times a week, drinking vodka and rum on a daily basis, and taking Xanax concurrently. Mr. L. attributes his drug use and alcohol consumption primarily to coping with his anxieties, panic disorder and inexplicable sadness. Mr. L. has been drug-free since February 2018.

[29] Mr. L. related that he abandoned his academic pursuit when he found out that his girlfriend was pregnant. He stated that he only had one semester left to graduate from college. Mr. L.’s parents stopped paying for his school when he decided to be a father as they felt that he had to be responsible for himself.

[30] Mr. L. has been steadily employed since leaving school. He has worked for different companies, changing jobs for better opportunities and to be closer to home. He is currently employed on a full-time basis as an independent subcontractor for a removal services company. He has worked for this company for over one year. His duties include junk removal, moving and demolition services. Mr. L. previously worked for his common-law partner’s father in Hamilton for approximately three years.

[31] Mr. L. reported that in 2019, he was admitted into a psychiatric hospital. He was paired up with a psychiatrist whom he sees every three to six months. Mr. L. related having been diagnosed with post-traumatic stress disorder, panic disorder and attention deficit hyperactivity disorder. His mental health concerns are managed with the assistance of medication. He stated that at one point, he was unable to attend school due to the side effects of his anxiety medications.

[32] Mr. L. currently lives in Whitby, Ontario, with his common-law partner of six years, P.B., and their two young children, including Ms. B.’s seven-year-old son from a previous relationship. Mr. L. has raised both children as his own. The oldest child has been diagnosed with autism. Mr. L. and Ms. B. were involved in a friendship for three years prior to becoming intimate partners.

[33] Prior to his relationship with Ms. B., Mr. L. only had one other serious relationship which lasted two years. According to Mr. L., the relationship ended because they were both “incredibly young” and he was experiencing racial issues in Barrie, where they lived at the time.

[34] Mr. L. has a close and positive relationship with his parents and they maintain regular contact. Mr. L. reported being much closer to his mother and talking to her three or four times per week. He described his relationship with his brother as relatively close and supportive.

[35] With respect to the issues before the Court, the author of the PSR states that Mr. L. appears to accept responsibility for his actions and he expressed regret regarding what happened to the victim and what she went through. Mr. L. expressed the view that he was charged because he was responsible for the victim being introduced to S.H. who ended up trafficking her, physically abusing her and feeding her drugs. Mr. L. reported having a casual relationship with Ms. S. and that they were both addicted to drugs at the time. Mr. L. asserts that he will comply with any court-ordered conditions.

[36] The author of the PSR notes that Mr. L. has demonstrated insight into his substance use problem and has expressed pro-social values in terms of his connection to family and long history of employment since his arrest. The sources interviewed for the PSR all noted the significant progress that Mr. L. has made since the offence.

4. Victim Impact Statement

[37] In her statement, Ms. S. says that Mr. L.’s actions have impacted her life in devastating ways and that her daily life is still affected almost seven years later. She states that she is in ongoing trauma therapy. She has flashbacks and nightmares that make it hard for her to function normally. After her interactions with Mr. L. ended, her drug and alcohol use increased. According to Ms. S., this was a coping mechanism to deal with some of the difficult things that she had endured, before she was able to get the necessary help to get sober four years ago. Ms. S. also says that her mental health declined and that she became severely depressed and suicidal at times.

[38] Ms. S. states the following with respect to being exposed to the sex industry:

Being exposed to the sex industry made me hate myself, hate my body, and have a negative relationship with men. I still struggle with social anxiety and have not been able to work since these events. I lost relationships with friends and family and became dangerously isolated and anti-social. I no longer felt like I had a place amongst regular people, and that once working in the sex trade I had become tainted and less than – unworthy of love and emotional connections. These are relationships that to this day I still work to heal. Everyday activities like taking public transit and going to the grocery store have become daunting tasks in which I am full of fear and anxiety.

[39] Ms. S. also states that she fears future contact with Mr. L. and that she is sometimes plagued with intense periods of fear that prevent her from leaving the house or get out of bed.

[40] Despite all the negative impacts, Ms. S. says that she is working diligently at her recovery from these events and trying to rebuild some semblance of a normal life.

5. Letters Filed by the Defence

a. Character Letters

[41] The defence filed eight letters written by family members, friends and work colleagues of Mr. L. The following summarizes some of the information provided in the letters.

[42] Ms. B., Mr. L.’s common-law partner, describes Mr. L. as a hard-working man, a devoted father and a loving partner who does everything he can to ensure that the people he loves are supported and cared for. She also states that Mr. L. is accountable, reliable and trustworthy and has worked hard to make positive changes on himself, seek therapy and develop healthy coping mechanisms. Ms. B. believes that she and her children would struggle immensely, both financially and emotionally, should Mr. L. be sentenced to go to jail.

[43] Ms. B.’s father also wrote a letter, both as Mr. L.’s father-in-law and former employer. Mr. B. states that Mr. L. was his best, most reliable and hardest-working team member, and that his dedication and work ethic are unparalleled. Mr. B. also describes Mr. L. as an extraordinary father, husband and son. He believes that losing him would have devastating effects on Ms. B. and her two children.

[44] Mr. L.’s brother refers in his letter to traumatic events experienced by Mr. L. while growing up, Mr. L.’s mental health issues, his work ethic and his love for his family.

[45] In their letter, Mr. L.’s parents state that they relocated their family from the United Kingdom to Dominica in 1997 in the hope that their two sons “would have a more positive image of themselves than their mother experienced as a black person growing up in the UK”. They refer to Mr. L.’s anxiety issues and some of the traumatic events that he experienced in the past. They note that Mr. L. works tirelessly to provide for his family. They state that they will continue to support him in whatever way that they can.

[46] Mr. L.’s current employer, the removal services company, confirms that Mr. L. has been a full-time employee for the past year. Again, Mr. L. is described as hard-working, reliable and dedicated. He is said to be willing to go above and beyond when needed, to bring enthusiasm to every project, and to be a committed team player. Mr. L.’s employer fully supports him.

b. Letter from Immigration Lawyer

[47] The defence filed a letter written by John Abrams, a lawyer who practices in the areas of criminal and immigration law. The following information is contained in the letter:

a. Mr. L. is a foreign national under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). He is a citizen of Great Britain. He came to Canada at around 16 years old on a study permit. He was then granted a work permit, which expired after he was charged.

b. Mr. L.’s partner, Ms. B., has applied to sponsor him for permanent residence, but that application is currently on hold pending the outcome of the criminal charges.

c. Pursuant to section 36 of the IRPA, Mr. L.’s conviction itself renders him inadmissible to Canada, regardless of his eventual sentence. This would normally lead to his fairly immediate deportation after completion of any custodial sentence.

d. As a foreign national, Mr. L. has no meaningful appeal from a removal order. In order to return to Canada, he would first have to obtain a pardon or record suspension. The waiting period to apply for indictable offences is ten years, commencing at the completion of the sentence.

e. Mr. L. and Ms. B. intend to ask Immigration, Refugees and Citizenship Canada (“IRCC”) to make a humanitarian and compassionate exception (“H&C Request”) on their sponsorship application, under section 25 of the IRPA.

[48] Mr. Abrams notes that the Supreme Court of Canada has consistently held that consideration of the best interests of any children affected by a parent’s removal is one of the most important factors to take into account in any H&C Request. He states that while this factor may not always be enough to tip the balance in favour of granting relief, it often is.

[49] Mr. Abrams also expresses the following opinion:

The severity of his sentence will also be taken into account by IRCC in balancing the H&C factors, and ultimately making a decision on his Sponsorship application. In my view, a relatively lenient sentence with a focus on rehabilitation would assist Mr. [L.] in making the case to stay with his family. I can’t say that it would be decisive, but it would help.

c. Letter from Mr. L.’s Doctor

[50] Finally, the defence filed a letter from Dr. Muhammed Zakaria of Lakeridge Health Oshawa. Mr. L. was under Dr. Zakaria’s psychiatric care between January 21 and 28, 2019, following Mr. L.’s admission through emergency for panic attacks and further psychiatric assessment. Mr. L.’s discharge diagnoses were: (1) panic disorder; (2) generalized anxiety disorder; (3) attention deficit hyperactivity disorder; and (4) secondary depression.

[51] Mr. L. had previously had a one-day admission at the same hospital for panic attacks on January 3, 2019. He also had another psychiatric assessment in the emergency on January 17, 2019 and was prescribed medication for panic attacks.

[52] In his letter, Dr. Zakaria states that since Mr. L.’s discharge on January 28, 2019, Mr. L. has been followed-up in the Lakeridge Health Outpatient Mental Health Services. Mr. L. is in contact with Dr. Zakaria periodically, either over the phone (during the COVID-19 pandemic) or in person. Mr. L. was last assessed on October 22, 2024. At that time, he displayed relapse of depression and anxiety in the context of the legal proceeding that he was facing. Following the visit, Mr. L. was prescribed some medication. According to Dr. Zakaria, Mr. L. is compliant with his medication and treatment, and he will be followed up by Dr. Zakaria on a periodic basis.

6. Mr. L.’s Statement

[53] Pursuant to section 726 of the Criminal Code, Mr. L. was asked whether he had anything to say regarding his sentence. Mr. L. said that he wanted to express his profound remorse for his actions and take full responsibility for the harm that he had caused.

[54] Mr. L. stated that he spent many years trying to understand his situation and his role and believing that he had no responsibility in the events that occurred. He said that this blinded him from seeing the part that he did play and the negative consequences on Ms. S.’s life.

[55] Mr. L. noted that he was found not guilty of most of the charges against him, but he was convicted on the charge of procuring. He said that he was learning to come to terms with the fact that he did play a role in all of this and that finding him guilty on the charge of procuring was appropriate.

[56] Mr. L. recognized that his decisions had far-reaching consequences on Ms. S. and his family, including Ms. B. and his children.

[57] Mr. L. pointed out that at the relevant time, he was struggling deeply with mental health issues and addiction problems, and he chose to be around some unsavoury characters and placed himself in negative situations.

[58] Mr. L. said that over the past years, since he became sober, started a relationship with his partner and had his daughter, he has committed himself to a journey of rehabilitation and making positive choices for himself, but also for the people around him who need and rely on him.

[59] Mr. L. stated that he is determined to emerge from this experience as a better person. He believes that he has demonstrated over the past six years that he is a changed man. He said that he works non-stop and extremely hard to provide for his family, and he is dedicated to be an amazing father. Mr. L.’s view is that a jail sentence would disrupt his efforts to support his family and be present for his children. It would also hinder his rehabilitation as he has made significant progress to become an upstanding member of society over the past years. Mr. L. believes that with continued support, he can be a productive member of the community and the best father that he can be.

B. Positions of the Parties

1. Position of the Crown

[60] The Crown’s position is that an appropriate sentence would be a two-year custodial sentence. The Crown also requests the following ancillary orders:

a. a 10-year weapons prohibition order pursuant to section 109 of the Criminal Code;

b. a DNA order pursuant to section 487.051(2) of the Criminal Code; and

c. a non-communication order with the victim during the custodial period of the sentence pursuant to section 743.21 of the Criminal Code.

[61] The Crown submits that the key sentencing principles in this case are denunciation and deterrence. The Crown states that procuring women put women at risk of being taken advantage of for financial gain. This is what happened in this case, although Mr. L. did not benefit materially from Ms. S.’s sex work.

[62] The Crown refers to the Technical Paper prepared by the Department of Justice Canada in 2014 with respect to Bill C-36, An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts. The Crown notes that the objective of the new provisions is to denounce and prohibit the demand for prostitution and the exploitation of the prostitution of others by third parties. The Crown points out that the Court of Appeal stated in N.S. that Parliament views prostitution as a dangerous activity that is inherently exploitative and degrading, and that must be denounced and discouraged.

[63] With respect to the fact-finding to be made by the Court, the Crown submits that Mr. L. introducing Ms. S. to Mr. H., who ultimately trafficked her, constitutes an insufficient legal basis for Mr. L. to be convicted of procuring. The Crown’s position is that Mr. L. had a persuasive effect on Ms. S. to sell her sexual services by leveraging her drug and alcohol addiction and making her feel that she could not say no to him. The Crown points out that Mr. L. did not provide any evidence with respect to introducing Ms. S. into the sex trade, and that the only evidence before the Court that could support a finding of guilt is from Ms. S. Ms. S. testified that Mr. L. had set everything up for her and that resulted in her entering the sex trade fairly quickly after their second meeting. Ms. S. felt that she could not say no to Mr. L. She was also encouraged by the fact that she had a significant drug dependency and this was a way to ensure that she could obtain drugs.

[64] The Crown submits that its proposed sentence properly takes into account the aggravating and mitigating circumstances in this case, including the fact that Mr. L. is a first-time offender, but it reflects the appropriate level of condemnation for Mr. L.’s serious conduct.

[65] The Crown argues that there are aggravating circumstances in this case. The Crown refers to section 718.2(a)(iii.1) and Ms. S.’s victim impact statement. The Crown states that the offence had a significant impact on Ms. S. The Crown argues that Ms. S. was vulnerable: she was 21 years old when she met Mr. L., she had significant substance abuse issues, and she was financially strained because of her addiction issues. Mr. L. knew about all of these issues.

[66] With respect to mitigating circumstances, the Crown notes that Mr. L. was arrested on March 20, 2019 and was released 20 days later, on April 9, 2019. He was on a house arrest bail, but he had exceptions to work or be in the presence of his sureties. On September 27, 2021, the Crown agreed to vary Mr. L.’s bail from a house arrest to a curfew. The Crown notes that Mr. L. has family and community support, which is helpful for his rehabilitation prospects. The Crown also notes that Mr. L. does not have a criminal record.

[67] As for the issue of collateral immigration consequences, the Crown notes that the circumstances in this case are not typical. The Crown points out that based on the materials filed by the defence, the conviction itself makes Mr. L. inadmissible to Canada, regardless of the sentence. Given this, the Crown submits that the Court should not exercise its discretion to adjust the sentence to try to avoid immigration consequences. The Crown states that the collateral immigration consequences are only one of the many factors to consider in this case, and that it is a minimal one. The Crown argues that there is no evidence that ancillary orders would have any impact on the collateral immigration consequences for Mr. L.

[68] With respect to the defence’s reliance on R. v. Morris, 2021 ONCA 680 and the issue of anti-Black racism, the Crown acknowledges that social context evidence of anti-Black racism can provide insight into a person’s culpability. Although no direct causal connection is required before background and systemic factors can mitigate a sentence, the Crown submits that there has to be some connection to explain the criminal conduct in issue. The Crown states that there is no connection in this case between Mr. L.’s background and the offence in issue. While the Crown does not doubt that Mr. L. has experienced some form of anti-Black racism in his past, its position is that there is no connection between such experiences and the offence that could explain Mr. L.’s conduct or mitigate his moral culpability. The Crown points out, among other things, that Mr. L. did not grow up in poverty.

[69] As for Mr. L.’s addiction and mental health issues at the relevant time, the Crown argues that they do not explain his conduct in procuring Ms. S. into the sex trade, and that there is no connection that would reduce his moral culpability.

[70] The Crown’s position is that incarceration is required when the circumstances of the case demand significant denunciation and deterrence. The Crown submits that this is such a case.

[71] The Crown also discussed and made submissions regarding the cases included in both the Crown’s and the defence’s sentencing materials.

[72] With respect to the request for a weapons prohibition order under section 109 of the Criminal Code, the Crown’s position is that such an order is justified under subsection 109(1)(a) based on Ms. S.’s evidence that she felt that she could not say no to Mr. L. and that Mr. L. was very pushy. The Crown argues that in persuading Ms. S. to enter into the sex trade, Mr. L. was engaged in conduct that was inherently dangerous.

2. Position of the Defence

[73] The defence’s position is that an appropriate sentence is an 18-month conditional sentence, less one-month credit for pre-trial custody.

[74] The defence submits that Mr. L. introducing Ms. S. to Mr. H. constitutes a sufficient legal basis for the conviction for procuring and that there does not need to be anything further than that to ground the conviction. The defence argues that Mr. L. bringing Mr. H. to Ms. S.’s apartment and introducing him to her caused her to start working in the sex trade.

[75] The defence relies on the decision of the Supreme Court of Canada in R. v. Proulx, 2000 SCC 5 (“Proulx”) and submits that the principle of restraint should be applied when determining whether prison should be used as a sanction. The defence notes that a conditional sentence is still a punitive sanction capable of achieving the objectives of denunciation and deterrence. The defence states that Mr. L.’s behaviour over the past six years clearly demonstrates that he is not a danger to the community.

[76] The defence argues that the principle set out in section 718.2(e) is very important in this case given that Mr. L. is a young Black man and a first-time offender.

[77] With respect to mitigating factors, the defence notes that Mr. L. was 21-22 years old at the time of the offence. He is presently 28 years old and does not have a criminal record or any court orders. The defence states that at the relevant time, Mr. L. was struggling with his own substance abuse and mental health issues. The defence relies on the letter provided by Mr. L.’s psychiatrist regarding his diagnoses. The defence states that Mr. L. has not returned to drug use at all since March 2018, and that he has been compliant with his medication and treatment.

[78] The defence argues that the way that Mr. L. has turned his life around since March 2018 is remarkable. He has worked consistently since the last six years. Shortly after the offence, he met his current partner, Ms. B., and started acting as a father figure to her son. They had a daughter in February 2019. The defence states that Mr. L. is a very devoted and involved father and family man. He is the main breadwinner for his family.

[79] According to the defence, Mr. L. is very remorseful and has insight into his conduct. The defence submits that Mr. L. has already been deterred and that he continues on the route of rehabilitation that he has taken over the past six years. Mr. L. acknowledges that he has to face the consequences of his conduct, but he would never want to find himself in a situation like this again.

[80] The defence does not ask for Downes credit, but suggests that the Court should take into consideration the long period during which Mr. L. was successfully on bail, with no allegations of breach.

[81] With respect to collateral immigration consequences, the defence states that no matter what the Court decides regarding Mr. L.’s sentence, Mr. L. will have to deal with the consequences of his conviction. The defence notes that having to go through the necessary process and not knowing whether he will be able to stay in Canada have caused Mr. L. great stress given his two young children, among other things. According to the defence, this situation should be considered as part of Mr. L.’s personal circumstances because someone with no immigration consequences would not be affected in the same way by a conviction. The defence points out that different sentences are justified when the personal circumstances of the offender are different. The defence argues that the collateral immigration consequences support a 18-month conditional sentence.

[82] The defence relies on Morris and more particularly on the Court of Appeal’s finding that social context evidence regarding the offender’s life experiences may be used to assist in the blending of the principles and objectives sentencing to achieve a sentence which best serves the purposes of sentencing. The defence does not suggest that Mr. L., as a Black man, was in an environment that left him no choice but to engage in the conduct in issue. Rather, the defence’s position is that the evidence of anti-Black racism in this case provides additional background for the Court to consider when determining an appropriate and proportional sentence.

[83] The defence discussed and made submissions regarding the cases included in both the Crown’s and the defence’s sentencing materials.

[84] The defence’s position is that a weapons prohibition order under section 109 of the Criminal Code is not mandatory with respect to the offence of procuring. The defence states that such an order would be discretionary in this case. The defence also relies on the case R. v. Beeransingh, 2022 ONSC 5905 at para. 103 (“Beeransingh”) to argue that a DNA order should not be made in this case. The defence does not have any issue with the non-communication order with Ms. S. requested by the Crown and the victim surcharge.

C. Discussion

1. Relevant Sentencing Principles

a. General Principles

[85] The main principles of sentencing are set out in sections 718, 718.1 and 718.2 of the Criminal Code. Section 718 recognizes that “just sanctions” will have one or more of the objectives identified in subsections (a) to (f), including denunciation, general and specific deterrence and rehabilitation. However, those objectives will not necessarily point toward the same sentencing disposition. The individualization of the sentencing process requires the sentencing judge to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender. The search for a just sanction that reflects a proper blending of the objectives of sentencing is guided by the principle of proportionality. See Morris at paras. 58-59.

[86] The objectives of individual deterrence and rehabilitation are paramount with respect to the sentencing of young first offenders. The principle of restraint serves to minimize a youthful first offender’s sentence in that it requires a sentencing judge to consider all sanctions apart from incarceration and, where incarceration is required, make the sentence as short as possible and tailor it to the individual circumstances of the offender. See R. v. Priest and R. v. Desir, 2021 ONCA 486 at paras. 31, 41 (“Desir”). The principle also requires the sentencing judge to consider rehabilitation in determining the appropriate length, recognizing that in very serious cases and cases involving violence, rehabilitation alone is not the determinative factor and general deterrence and denunciation must also be considered. See Desir at para. 41 and R. v. Thurairajah, 2008 ONCA 91 at para. 41.

b. Collateral Immigration Consequences

[87] Collateral immigration consequences are not, strictly speaking, aggravating or mitigating factors: see R. v. Pham, 2013 SCC 15 at para. 11 (“Pham”). However, they may be taken into account in sentencing as personal circumstances of the offender. Their relevance flows from the application of the principles of individualization and parity, and may also flow from the application of the sentencing objective of assisting in rehabilitating offenders. See Pham at para. 11. Thus, collateral immigration consequences may be relevant in tailoring a sentence, but their significance depends on and has to be determined in accordance with the facts of the particular case. See Pham at para. 13. Collateral immigration consequences are only one relevant factor amongst many others related to the nature and the gravity of the offence, the degree of responsibility of the offender and the offender’s personal circumstances: see Pham at para. 20.

[88] While a sentencing judge may exercise their discretion to take collateral immigration consequences into account, the sentence ultimately imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Inappropriate and artificial sentences cannot be imposed in order to avoid collateral immigration consequences. See Pham at paras. 14-16 and R. v. R.L.S., 2020 ONCA 338 at para. 10.

c. Conditional Sentences

[89] A conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders: see Proulx at para. 21. Conditional sentences should generally include punitive conditions that are restrictive of the offender’s liberty. Thus, conditions like house arrest should be the norm, not the exception. The offender should be confined to their home except when working, attending school, fulfilling other conditions of their sentence or pursuant to other exceptions such as medical emergencies. See Proulx at paras. 36, 103.

[90] There are four criteria that a court must consider before deciding to impose a conditional sentence (see Proulx at para. 46 and section 742.1 of the Criminal Code):

a. The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment and that is not listed in subsections 742.1(c) or (d).

b. The court must impose a term of imprisonment of less than two years.

c. The safety of the community would not be endangered by the offender serving the sentence in the community.

d. A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

[91] No offences are excluded from the conditional sentencing regime, except those with a minimum term of imprisonment and the offences that are listed in section 742.1 of the Criminal Code: see Proulx at para. 127(3). Serious consideration should be given to the imposition of a conditional sentence in all cases where the first three prerequisites listed above are satisfied: see Proulx at paras. 90 and 127(7).

[92] The prerequisite that the court impose a term of imprisonment of less than two years only requires the sentencing judge to make a preliminary determination rejecting a penitentiary term and probationary measures as inappropriate. Having determined that the appropriate range of sentence is a term of imprisonment of less than two years and being satisfied that the offender would not endanger the community, the judge should then consider whether it is appropriate for the offender to serve their sentence in the community. A conditional sentence need not be of equivalent duration to the sentence of incarceration that would have otherwise been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence. See Proulx at paras. 127(4) and (5).

[93] Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. However, a conditional sentence can still provide a significant amount of denunciation, particularly when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances. See Proulx at para. 102 and Beeransingh at paras. 87-88. A conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in these circumstances. See Proulx at para. 127(11).

[94] A conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgement of the harm done to the victim and the community. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. See Proulx at paras. 127(9) and (10).

d. Anti-Black Racism

[95] Evidence of anti-Black racism and its impact on the specific offender can be an important consideration when determining the appropriate sentence: see Morris at para. 87. Social context evidence relating to the offender’s life experiences may be used where relevant to mitigate the offender’s degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing set out in section 718 of the Criminal Code. Courts may acquire relevant social context evidence through the proper application of judicial notice or as social context evidence describing the existence, causes and impact of anti-Black racism in Canadian society, and the specific effect of anti-Black racism on the offender. However, an offender’s experience with anti-Black racism does not impact on the seriousness or gravity of the offence. See Morris at para. 13.

[96] While an offender does not have to show a causal connection between anti-Black racism and the offence before anti-Black racism can be treated as a mitigating factor, some connection must be demonstrated. The Court of Appeal stated the following in Morris at para. 97:

There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue. Racism may have impacted on the offender in a way that bears on the offender’s moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour. Everyone agrees there can be no such discount […].

[97] Even if there is no connection between anti-Black racism and the commission of the offence that explains or mitigates the criminal conduct in issue, evidence of anti-Black racism can still be relevant. The Court of Appeal stated the following in Morris at para. 102:

Social context evidence can also be relevant on sentencing even if it does not tend to mitigate the offender’s moral culpability. As indicated earlier, social context evidence can provide valuable insight, both with respect to the need to deter the offender from future conduct, and the rehabilitative prospects of the offender. Evidence about an offender’s background and circumstances allows the sentencing judge to more accurately assess how sometimes competing objectives of sentencing, such as rehabilitation and denunciation, can best be blended to produce a sentence that accords with the proportionality principle and serves the fundamental purpose of sentencing articulated in s. 718.

[98] In considering the restraint principle, courts should bear in mind the well-established over-incarceration of Black offenders, particularly young male offenders. In appropriate cases, the use of conditional sentences when sentencing young Black offenders carries the added advantage of addressing – at least as it relates to the offender before the court – the ongoing systemic problem of the over-incarceration of young Black offenders. See Morris at paras. 123, 129, 180.

2. Aggravating Factors

[99] There are some aggravating circumstances in this case.

[100] Ms. S. was vulnerable at the time the offence was committed because she had significant substance abuse issues. Mr. L. knew that Ms. S. had substance abuse issues at the relevant time, but he nevertheless persuaded her to offer or provide her sexual services for consideration.

[101] Pursuant to section 718.2(a)(iii.1), evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, constitutes an aggravating circumstance.

[102] Ms. S. provided a victim impact statement in this case in which she describes how Mr. L.’s actions have impacted her life. However, there are a number of issues with respect to Ms. S.’s statement. While I have no difficulty accepting that her life was very significantly and negatively affected as a result of her involvement in the sex trade, her statement generally does not account for Mr. H.’s involvement and the fact that Mr. L. was only found guilty of the offence of procuring. Mr. H. trafficked Ms. S. at least from March 17, 2018 to February 2019, he received a material benefit from trafficking her and he assaulted her and caused her bodily harm. I also note that Ms. S. already had severe addiction issues before her involvement with Mr. L. in February-March 2018.

[103] While the impact on Ms. S. is an aggravating factor, given Mr. H.’s admitted conduct towards her, it is more likely that he contributed much more to the impact on Ms. S. than Mr. L. See R. v. Musara, 2023 ONSC 97 at para. 11 (“Musara”). Therefore, the role of this aggravating factor is limited.

3. Mitigating Factors

[104] I now turn to the mitigating circumstances relevant to sentence.

[105] Mr. L. is a young first offender. He does not have a criminal record.

[106] At the relevant time, Mr. L. suffered from mental health issues and had his own addiction issues. He no longer uses drugs.

[107] Mr. L. has the strong support of his partner, his family, his employer and friends. The PSR and the letters of support show that Mr. L. has pro-social values. He is a hard-working and valued employee, who has been continually and successfully employed for many years. Further, Mr. L. is a devoted partner and father. Mr. L.’s relationship with Ms. B. and fatherhood have had a positive impact on Mr. L.

[108] Remorse can offer meaningful mitigation when accompanied by an acceptance of responsibility for one’s crimes: see Morris at para. 157. I accept that Mr. L. has insight into his actions and the harm that they caused to Ms. S. It is unclear whether he only accepts responsibility for introducing Ms. S. to Mr. H. or whether he fully accepts responsibility for the crime of procuring. This affects the weight to be given to this factor. However, I am satisfied that Mr. L.’s overall attitude is conducive to a successful rehabilitation. It certainly does not stand in the way of such rehabilitation.

4. Other Factors

[109] Mr. L. was arrested on March 20, 2019 and was in custody until April 9, 2019 (21 days). Mr. L. has been on bail for more than 5.5 years. He was under house arrest (with certain exceptions, including to go to work) between April 9, 2019 and September 27, 2021, i.e., more than two years and five months. On September 27, 2021, the Crown agreed to vary Mr. L.’s bail from a house arrest to a 9 p.m. curfew. There have not been any police contact after Mr. L.’s arrest, while he was on bail.

[110] Mr. L. will suffer collateral immigration consequences as a result of his conviction, regardless of any sentence that is imposed. This is a relevant personal circumstance of Mr. L. because the impact of his conviction is different for him than it is for other offenders who are not foreign nationals. Different personal circumstances may justify different sentences: see Pham at para. 9. However, it is my view that collateral immigration consequences can only play a limited role in this case given that: (a) Mr. L. will suffer collateral immigration consequences regardless of the sentence that is imposed; and (b) the evidence before me lacks specificity with respect to how the sentence can and will impact the H&C Request that Mr. L. and Ms. B. intend to make. I have nevertheless taken this factor into account in determining the appropriate sentence in this case.

[111] Mr. L. is a young Black man. I agree with the Crown – and it is not really disputed – that there is no evidence of a connection between anti-Black racism and Mr. L.’s criminal conduct in this case. I also note that there is no evidence of any financial issues on the part of Mr. L. at the time that the offence was committed. The evidence at trial was that Mr. L.’s parents covered all of his expenses, including the expenses related to his condominium, his car and his studies. However, there is evidence before the Court that Mr. L. experienced anti-Black racism in Canada, including when he was living in Barrie. As stated by the Court of Appeal in Morris, social context evidence can be relevant on sentencing even if it does not tend to mitigate the offender’s moral culpability. Such evidence can assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing set out in section 718. In this case, the systemic problem of the over-incarceration of young Black offenders is a relevant consideration when applying the principle of restraint and determining whether a conditional sentence would be appropriate.

5. Purpose of Section 286.3 of the Criminal Code and Sentencing Range

[112] In N.S., the Court of Appeal described the purpose of section 286.3 of the Criminal Code as follows (at para. 121):

I would characterize the purpose of s. 286.3 slightly differently from the application judge. I would describe its purpose as to denounce and prohibit the promotion of the prostitution of others in order to protect communities, human dignity and equality. Promoting prostitution encourages an activity that Parliament considers inherently exploitative. Section 286.3 gives effect to this purpose by prohibiting a wide range of conduct intended to procure a person to offer or provide sexual services for consideration and conduct engaged in for the purpose of facilitating an offence under s. 286.1(1).

[113] Courts have determined that denunciation and general and specific deterrence are the prevailing sentencing objectives with respect to sex trade offences. See R. v. Lucas-Johnson, 2018 ONSC 4325 at para. 26 (“Lucas-Johnson”) and R. v. Joseph, 2020 ONCA 733 at para. 134.

[114] A number of cases state that the range of sentences for offences related to sexual services is from twelve months to five years. However, it is recognized that the length of the sentence very much depends on the facts of the case. See Lucas-Johnson at para. 41, R. v. Fodor, 2024 ONCJ 104 at para. 25 (“Fodor”), and R. v. Williams, 2023 ONSC 4648 at para. 73 (“Williams”). In Williams, the Court stated at paragraph 73 that the range for sentence for the offences in that case – procuring and receiving a financial benefit from sexual services obtained for consideration – was between one and three years for first-time offenders.

6. Review of the Main Cases Relied Upon by the Parties

[115] I will discuss briefly the cases relied upon by the parties, starting with the cases relied upon by the defence.

[116] In Musara, the accused was charged with a number of offences: sexual assault, threatening, procuring, human trafficking and receiving material benefits from sexual services. He was acquitted of all offences except receiving material benefits from sexual services. The offence occurred over a period of two to four months. See Musara at paras. 1, 12. Mr. Musara was a 28-year-old Black man at the time of the offence, and he was treated as being essentially a first offender.

[117] Nakatsaru J. found that Mr. Musara was not a “pimp” to the victim. Rather, he was a drug trafficker who sold cocaine to the victim, knowing that the money that he received as payment for the drugs was from the victim providing sexual services. Mr. Musara encouraged the victim to continue sex work because he wanted her to remain his customer and because of his friendship with the victim’s pimp. However, Nakatsaru J. also found that Mr. Musara did not exploit the victim, he did not participate or assist in her offering sexual services, he did not exercise any control, direction or influence over her movements, and he did not commit any acts of violence or make threats. See Musara at paras. 6, 12.

[118] Ultimately, Mr. Musara was sentenced to a 17-month conditional sentence (on top of a 20-day sentence credit for time spent in pretrial custody), followed by a 12-month probation period.

[119] In my view, the situation in Musara is very similar to the situation in this case. Like Mr. Musara, Mr. L. was not a “pimp” to Ms. S. He did not exploit Ms. S., he did not participate or assist in her offering sexual services, he did not exercise any control, direction or influence over her movements, and he did not commit any acts of violence or make threats.

[120] In Beeransingh, the accused was charged with a variety of offences, including charges of human trafficking and commodification of sexual activity offences involving three different complainants. He was found not guilty on most of the charges, but he was found guilty of knowingly receiving a material benefit from sexual services obtained for consideration. It was undisputed that Mr. Beeransingh had received money derived from the sex work of all three of the complainants. See Beeransingh at paras. 1-2. Mr. Beeransingh was a youthful first offender: see Beeransingh at para. 38.

[121] Dawe J. (as he then was) found that during the ten-month period that Mr. Beeransingh received a share of the profits from the three complainants’ sex work, Mr. Beeransingh was acting as their “pimp” and, in this role, he was actively involved in arranging and facilitating their sex work activities. See Beeransingh at para. 31. However, Dawe J. concluded that the overall gravity of Mr. Beeransingh’s misconduct was less than that commonly found in pimping cases because, among other things, he did not use violence or threats of violence to coerce the complainants and none of them were underage. See Beeransingh at para. 34. Dawe J. did find that one of the complainants experienced a higher degree of exploitation as a result of Mr. Beeransingh reneging on his agreement to pay her a half-share of the profits from her sex work. See Beeransingh at para. 35.

[122] Dawe J. imposed a conditional sentence of two years less a day, followed by an 18-month probation.

[123] In my view, the moral culpability of Mr. L. is less than the moral culpability of Mr. Beeransingh. Mr. L. was not Ms. S.’s “pimp”. He was not actively involved in arranging and facilitating her sex work activities, he did not receive a material benefit from her sexual services, and he did not exploit her.

[124] The same sentence that was imposed in Beeransingh (i.e., a conditional sentence of two years less a day, followed by an 18-month probation) was imposed in Fodor. In that case, the accused was found guilty of three offences: exercising control for the purpose of sexual services, advertising sexual services and receiving a material benefit from sexual services. Ms. Fodor was a young woman who had otherwise led a pro-social life and was a first-time offender, with strong family and community support. The victim in that case was also a vulnerable individual battling substance abuse issues. See Fodor at paras. 1, 28, 33-34.

[125] I note that while there are similarities between the circumstances of Ms. Fodor and Mr. L., Mr. L. was convicted of only one offence and his involvement with respect to the provision of Ms. S.’s sexual services was more limited than the role played by Ms. Fodor.

[126] The only case that counsel could find where an accused was only convicted of the offence of procuring is Lucas-Johnson. In that case, the accused was convicted of two counts of procuring. He had a criminal record and was on probation at the time of the offence. Mr. Lucas-Johnson and the victim were in an “emotional relationship”. The sex trade activity in issue was over a period of two months. See Lucas-Johnson at paras. 1, 28-30, 44.

[127] Allen J. stated that Mr. Lucas-Johnson introduced the victim to the idea of offering sexual services to clients at a spa that was a licensed establishment. The victim had previously worked in the sex trade. Mr. Lucas-Johnson drove the victim to the spa to meet the owner who told her about the sexual services. Mr. Lucas-Johnson also took the victim shopping for lingerie to work at the spa. Allen J. found that Mr. Lucas-Johnson was not violent or threatening toward the victim, that there was no exploitation in the relationship and that the victim could come and go as she pleased. See Lucas-Johnson at paras. 7, 8, 44.

[128] Mr. Lucas-Johnson was sentenced to a custodial sentence of 12 months followed by a two-year probation.

[129] Like in Lucas-Johnson, there were no violence, threats or exploitation in this case. However, contrary to Mr. Lucas-Johnson, Mr. L. does not have a criminal record and is a young first-time offender. Further, Mr. L. and Ms. S. were not living together and only had a casual, non-exclusive relationship. However, I note that Ms. S. was more vulnerable than the victim in Lucas-Johnson.

[130] I now turn to the main cases relied upon by the Crown.

[131] In Williams, a jury found the accused guilty of two of the four counts in the indictment, i.e., to have knowingly received a material benefit from sexual services obtained for consideration, and to have held, concealed or harboured the complainant, or exercised control, direction or influence over her movements in order to facilitate the sale of sexual services. The offences occurred over a 4.5-month period. Mr. Williams was a first-time offender, a young Black man with exemplary character references and little likelihood of reoffending. See Williams at paras. 1, 40, 51.

[132] Trimble J. found that Mr. Williams was in an exploitative relationship with the victim and that there was a breach of trust. Mr. Williams had abused his relationship with the victim, who considered them to be romantic partners. He controlled all business aspects of the sale of the victim’s sexual services (except advertising) and he kept the vast majority of the proceeds. He set the victim’s schedule and negotiated the nature of her services and the prices. See Williams at paras. 43, 52, 53.

[133] Trimble J. held that the appropriate sentence in that case was 28 months for harbouring under section 286.3, and 20 months for receiving a material benefit under section 286.2, to be served concurrently. In his view, Mr. Williams’ case was one of those circumstances where the need for denunciation and deterrence was so pressing that incarceration was the only suitable way to denounce Mr. Williams’ conduct and to deter such conduct by others. See Williams at paras. 45, 75.

[134] While the personal circumstances of Mr. Williams and Mr. L. are similar, there are significant differences between the facts and offences in Williams and in this case. In the present case, there was no exploitation and no breach of trust. Mr. L. did not receive a financial or material benefit from Ms. S.’s sexual services and he did not exercise control over the sale of Ms. S.’s sexual services. The time period in issue in this case – approximately one month – is also shorter.

[135] In R. v. Creor, [2004] O.J. No. 4831 (SCJ) (“Creor”), the accused pled guilty to the charges of procuring and advertising sexual services. The events in issue occurred during a period of three and a half months. Ms. Creor was a first-time offender, with little likelihood to reoffend. See Creor at paras. 62, 70.

[136] Sweeny J. found that Ms. Creor exerted a tremendous amount of control over the activities of the victim, who was vulnerable, a drug addict and homeless. He also found that Ms. Creor was part of a criminal organization and that she engaged in humiliating and degrading treatment of the victim. See Creor at paras. 55, 58, 60, 72.

[137] Sweeny J. held that the aggravating factors were such that a fit sentence was not less than two years given the need for denunciation and deterrence of the conduct in issue. He concluded that a fit and proper sentence was two years for procuring, and 18 months for advertising, to be served concurrently. See Creor at paras. 70, 73, 74.

[138] There are similarities between Creor and this case, including the fact that the offenders were first-time offenders with little likelihood to reoffend, and the fact that the victims were vulnerable and had addiction issues. However, as for Williams, there are significant differences between the facts and offences in Creor and in this case. Contrary to Ms. Creor, Mr. L. was not part of a criminal organization and he did not exercise control over the activities of Ms. S. In addition, the time period in issue in the present case is shorter and Mr. L. was acquitted of advertising sexual services. I note, however, that Ms. Creor pled guilty.

[139] In R. v. Bedi, 2024 ONSC 5320 (“Bedi”), the accused was found guilty by a jury of nine offences, including human trafficking, procuring, receiving a material benefit from human trafficking, receiving a material benefit from sexual services obtained for consideration, advertising sexual services and assault causing bodily harm in relation to one complainant (the “main” complainant); assault by choking in relation to another complainant; and attempt to procure in relation to a third complainant. See Bedi at para. 1.

[140] The Crown relies on this case with respect to the charge of attempt to procure. The time span covered by this charge was approximately three months. Mr. Bedi and the complainant were involved in a romantic relationship. Mr. Bedi attempted to persuade the complainant, who was a sex worker, to work with him as an escort where he would provide services such as driving her to and from appointments, advertising and arranging bookings. The complainant turned down his offers, which were repeated over a period of time. The complainant described Mr. Bedi as controlling, needy and sometimes verbally abusive. Their relationship came to an end before or shortly after Mr. Bedi began his relationship with the main complainant. See Bedi at para. 5.

[141] Mr. Bedi was 48 years of age at the time of the offences. He had a criminal record in the United States. His convictions included a conviction of assault with a deadly weapon in a domestic context, and two convictions of committing a lewd act upon a minor.

[142] Dunphy J. stated that while the attempted procuring did not advance beyond the attempt phase, the moral culpability of what Mr. Bedi tried to do to the complainant “was quite on par with what he actually succeeded in doing” in relation to the main complainant. See Bedi at paras. 69, 74.

[143] Dunphy J. concluded that a consecutive sentence of 24 months was appropriate for the offence of attempted procuring. See Bedi at para. 95.

[144] Contrary to Mr. Bedi, Mr. L. is a young Black man and a first-time offender with no criminal record. Given the facts of this case, I am of the view that Mr. L.’s moral culpability is less than Mr. Bedi’s moral culpability, as assessed by Dunphy J. in relation to the charge of attempted procuring. Among other things, the nature of Mr. L.’s relationship with Ms. S. was different from the nature of the relationship between Mr. Bedi and the complainant in that case. Further, there is no evidence that Mr. L. was involved in managing, controlling and/or advertising the sexual services of any sex worker.

7. The Appropriate Sentence

[145] In my view, it is appropriate to impose a conditional sentence in this case.

[146] The following prerequisites are satisfied:

a. The offence of procuring under section 286.3(1) of the Criminal Code is not punishable by a minimum term of imprisonment and is not one of the offences listed in subsections 742.1(c) and (d).

b. I am satisfied that a term of imprisonment of less than two years is appropriate in this case, that is, that a penitentiary term and probationary measures are inappropriate. Given that denunciation, general and specific deterrence are the prevailing sentencing objectives with respect to sex trade offences, probationary measures would not be a fit and proportionate sentence that is consistent with the purpose and principles of sentencing set out in sections 718 to 718.2.

A penitentiary term would also not be an appropriate sentence in this case. As noted above, the sentencing range for first-time offenders with respect to offences related to sexual services is between one and three years. While the crime of procuring is serious, I am of the view that, like in Musara, this case involves a stand-alone offence with unique circumstances: see Musara at para. 26. The facts of this case, a comparison of this case with the cases referred to by the parties, the principle of restraint and the very good rehabilitation prospects of Mr. L. place this case at the low end of the range.

c. I am also satisfied that the safety of the community would not be endangered by Mr. L. serving his sentence in the community. I find that the risk of Mr. L. reoffending while serving a conditional sentence is very low. Mr. L. has complied with his bail conditions for more than 5.5 years and there are no allegations or evidence of any breach or any misconduct. Mr. L. has taken positive steps to turn his life around. He is leading a pro-social life, is a devoted and committed father and partner, and a hard-working and valued employee.

[147] Given that the three prerequisites above are satisfied, serious consideration should be given to the imposition of a conditional sentence: see Proulx at para. 127(7).

[148] In my view, imposing a conditional sentence in this case would be consistent with the fundamental purpose and principles of sentencing.

[149] As stated above, denunciation, general and specific deterrence are the prevailing sentencing objectives with respect to sex trade offences. While incarceration will usually provide more denunciation than a conditional sentence, the latter can still provide a significant amount of denunciation, particularly when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances. See Proulx at para. 102. I note that a conditional sentence has been imposed in other cases dealing with sex trade offences: see, e.g., Musara, Beeransingh and Fodor. The unique facts of this case are similar to, or not as serious as, the facts of these cases. In my view, a conditional sentence of 18 months with house arrest conditions will provide a sufficient and proportionate amount of denunciation and deterrence in this case.

[150] The imposition of a conditional sentence is also consistent with the principle of restraint and the principles of rehabilitation and the promotion of a sense of responsibility in offenders. As noted above, Mr. L. is a young first offender and his rehabilitation prospects are very good. He has made significant changes to his life. He has insight into his actions and the harm that they caused to Ms. S. He has accepted – at least in part – responsibility for his actions, as discussed above. As stated in Proulx at para. 127(9), a conditional sentence is generally better than incarceration at achieving the restorative objectives of rehabilitation and promotion of a sense of responsibility in the offender. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration: see Proulx at para. 127(10).

[151] The imposition of a conditional sentence is further supported by the consideration of anti-Black racism, which can assist in the blending of the various objectives of sentencing to achieve a fit and appropriate sentence. As stated by the Court of Appeal in Morris, courts should bear in mind the over-incarceration of young Black offenders in considering the restraint principle. When appropriate, the imposition of a conditional sentence can assist in ameliorating this ongoing systemic problem. See Morris at paras. 123, 129, 180.

[152] In light of the unique circumstances of this case, the mitigating, aggravating and other relevant factors discussed above, the cases referred to by the parties (including their similarities and dissimilarities with this case), and the various objectives and principles of sentencing discussed above, I conclude that a conditional sentence of 18 months (minus 31 days), to be served under house arrest, followed by a twelve-month probation is the appropriate sentence in this case. In my view, this is a fit sentence that is proportionate to the gravity of the offence and the degree of responsibility of Mr. L.

D. Disposition

[153] For the reasons set out above, Mr. L. is sentenced to an effective term of imprisonment of 18 months, to be served in the community pursuant to section 742.1 of the Criminal Code. The sentence will be reduced by 31 days as credit for time spent in pretrial custody (i.e., 21 days).

[154] Mr. L. will serve the entire length of his conditional sentence under house arrest, with limited exceptions, as outlined below.

[155] The conditional sentence includes the mandatory conditions required by subsection 742.3(1) of the Criminal Code. It also includes the following additional conditions under subsection 742.3(2):

a. Mr. L. shall remain in his residence at all times except:

i. for medical emergencies for himself, his spouse or common-law partner, or his children (or the children of his spouse or common-law partner);

ii. for going directly to and from or being at employment, court attendances, religious services, legal or medical or dental appointments for himself or his children (or the children of his spouse or common-law partner). Mr. L. will confirm his schedule in advance with his supervisor setting out the times for these activities.

iii. with the prior written approval of his supervisor, which he must carry with him during these times;

iv. for three hours on one occasion per week, on a date approved of by his supervisor, for acquiring the necessities of life;

v. for carrying out any legal obligations regarding compliance with this Order.

b. During his home confinement, Mr. L. must present himself at his doorway upon the request of his supervisor or a peace officer, for the purpose of verifying his compliance with his home confinement condition.

c. Mr. L. shall abstain from buying, possessing or consuming any alcohol, drugs (except in accordance with a medical prescription), or other intoxicating substance.

d. Mr. L. shall provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer or his supervisor, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to suspect that Mr. L. has breached the condition that requires him to abstain from the consumption of drugs, alcohol or any other intoxicating substance.

e. Mr. L. shall attend and actively participate in all assessment, counselling or rehabilitative programs as directed by his supervisor and complete them to the satisfaction of his supervisor. He shall sign any release of information forms as will enable his supervisor to monitor his attendance and completion of any such programs.

f. Mr. L. shall sign any release of information forms of Lakeridge Health, Mental Health Services, that will enable his supervisor to monitor, going forward, Mr. L.’s follow-up by Dr. Zakaria and/or other medical practitioners at Lakeridge Health with respect to Mr. L.’s psychiatric and mental health issues.

g. Mr. L. shall abstain from communicating, directly or indirectly, with H.S. by any means.

h. Mr. L. shall abstain from being within 250 meters of any place he knows H.S. to live, work, go to school, frequent or happen to be.

i. Mr. L. shall abstain from owning, possessing or carrying a weapon as defined by the Criminal Code.

j. Mr. L. shall make reasonable efforts to maintain suitable work and shall provide proof of same as required by his supervisor.

k. Mr. L. shall cooperate with his supervisor, sign any releases necessary to permit his supervisor to monitor his compliance, and provide proof of compliance with any condition of this Order to his supervisor on request.

[156] After Mr. L. has completed this sentence, he will be placed under probation for 12 months. The terms of his probation will be the same as the terms of his conditional sentence order, with the exception of conditions (a) and (b) above, i.e., the house arrest condition and the related monitoring term.

[157] In addition, pursuant to section 487.051(2) of the Criminal Code, I make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from Mr. L. The offence of procuring under section 286.3(1) is a primary designated offence under subsection 487.04(a.1)(vii.2). Pursuant to section 487.051(2), a DNA order is mandatory in this case unless the court is satisfied that Mr. L. has established that the impact of such an order on his privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders. In my view, Mr. L. has not so established.

[158] Pursuant to subsections 737(1) and 737(2)(b)(ii) of the Criminal Code, I also order Mr. L. to pay a victim surcharge in the amount of $200.00 within six months.

[159] Given that I am ordering that Mr. L. serve his term of imprisonment in the community and I have included a non-communication term regarding Ms. S. in the conditional sentence order, it is unnecessary to make the free-standing non-communication order under section 743.21 that the Crown requested.

[160] Finally, I decline to make the weapons prohibition order requested by the Crown. In my view, sections 109 and 110 of the Criminal Code do not apply in this case. The present case does not fall under any of the categories of cases set out in subsections 109(1) and 110(1). Among other things, violence against a person was not used, threatened or attempted during the commission of the offence of procuring in this case.

Vermette J.
Released: January 7, 2025