CITATION: R. v. Hawke, 2025 ONSC 2257
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
JORDAN HAWKE
Defendant
H. Palin and H. Donkers, for the Crown
A. M. Morphew, for the Defendant
HEARD: May 3^rd^ and 24^th^, June 27^th^, October 15, 2024; March 14, 2025
REASONS FOR SENTENCE
CARNEGIE J. (ORALLY)
1Mr. Hawke was found guilty of ten offences pursuant to a plea of nolo contendere, generally of a human trafficking and prostitution nature, spanning 2016 through 2020, as follows:
(1) human trafficking with respect to K.D., contrary to s. 279.01 of the Criminal Code;
(2) distributing intimate imagery with respect to K.D., contrary to s. 162.1 of the Criminal Code;
(3) procuring sexual services with respect to A.B., contrary to s. 286.3 of the Criminal Code;
(4) procuring sexual services with respect to A.R., contrary to s. 286.3 of the Criminal Code;
(5) receiving a material benefit from sexual services with respect to K.D., A.R., A.H., A.S. and B.S., contrary to s. 286.2 of the Criminal Code;
(6) procuring sexual services with respect to A.H., contrary to s. 286.3 of the Criminal Code;
(7) human trafficking with respect to A.S., contrary to s. 279.01 of the Criminal Code;
(8) human trafficking with respect to B.S., contrary to s. 279.01 of the Criminal Code;
(9) assault with respect to R.R., contrary to s. 266 of the Criminal Code; and
(10) laundering proceeds of crime, contrary to s. 462.31(2) of the Criminal Code.
2Given the seriousness and quantum of this offending conduct, including that seven victims were involved, the parties acknowledge that a significant penal consequence is justified.
3The Crown seeks a totality disposition of 23 years in custody to adequately reflect the gravity of the offending conduct and Mr. Hawke’s degree of responsibility. But for a totality consideration, they claim that a period of 45 years custody would be appropriate. In addition, the Crown seeks ancillary orders, including DNA, a weapons prohibition, a SOIRA order, a forfeiture order, a substantial restitution order and a fine in lieu of restitution.
4The defence counters that the appropriate sentencing range for Mr. Hawke’s conduct is 12 – 14 years, which should then be subject to an enhanced pre-sentencing custody credit and a credit respecting the harsh penal conditions during that time. The defence joins the Crown on their requested ancillary relief, including the issuance of a restitution order and fine in lieu of forfeiture.
5Here, I must craft a proportional sentence for assisting in the procurement of two of these victims. While they became the subject of the principal’s trafficking efforts, Mr. Hawke’s liability, on a party basis, is limited to procuring prostitution. Therefore, this sentencing must highlight the divide between procuring prostitution and human trafficking while expressing the community’s revulsion at the commodification of sexual services and the resulting harm that it causes these victims and the community at large.
Factual background
6A comprehensive Agreed Statement of Facts was prepared and filed by the parties, Exhibit 1 in this proceeding. It outlines the global circumstances for this offence narrative, including Mr. Hawke’s distinct involvement, as well as background information respecting the other parties involved including his co-accused friend, sister and mother. Here, I will merely highlight the factual narrative and the nature of the offending conduct.
Circumstances of the Offence
7Overall, between 2016 through 2020, Mr. Hawke trafficked and/or “pimped” five of the seven victims involved in these circumstances, namely B.S., K.D., A.H., A.R., and A.S. specifically with respect to the sale of sexual services. He attempted to have victim A.B. work for him in this capacity, and used victim R.R. to assist him in the trafficking efforts of victim B.S.
8I will outline the factual circumstances in a chronological fashion.
Victim R.R. - assault
9From 2015 through 2018, Mr. Hawke was involved in an intimate relationship with R.R.
10During 2016, at various hotels or motels in Ontario, Mr. Hawke made demands of R. R. and, if she refused, he pinned her arms behind her back and thereby assault her. To avoid being harmed, R.R. would comply with Mr. Hawke’s demands.
11From 2016 through 2017, Mr. Hawke had R.R. assist him in trafficking activities in respect of victim B.S. To facilitate the sale of sexual services, R.R. was required to book motels for B.S. arranged appointments, post B.S.’s advertisements on websites, and transport B.S. between hotels. If she refused to comply with Mr. Hawke’s demands, he would assault her or damage her property (i.e. her cell phone).
12Mr. Hawke would use R.R.’s credit card to shield his involvement in the sale of sexual services.
13In 2018, while residing in Sudbury, Mr. Hawke demanded that R.R. drive him and a co-accused to the LCBO and upon her refusal he assaulted her by dragging her across her apartment and grabbing her throat. This assault only ended with the co-accused intervened.
Victim B.S. – human trafficking and receiving material benefit
14B.S. met Mr. Hawke in 2015, when she was 16 years of age, he was 23 years old. He did not use his real name. The maintained an off and on intimate relationship which included him exposing her to “sex trade workers”. Prior to starting university, B.S. was looking for employment as a means to get her own residence and Mr. Hawke suggested the sale of sexual services. She began working for Mr. Hawke in June 2016, believing it would only be temporary until the fall when she started university.
15To facilitate the sale of sexual services, Mr. Hawke booked B.S. a motel room and took photographs of her wearing lingerie for posting online advertisements. He explained that he would advertise for her and handle all the clientele. B.S. was to obtain the money before engaging in sexual services and they agreed to split the proceeds 50/50. This arrangement continued from June to December 2016 and involved the sale of sexual services in a variety of different cities.
16Throughout, B.S. felt isolated, that she could not go home or talk to family or friends, required his permission for every day tasks – basically that she was now reliant upon Mr. Hawke. Further, she felt compelled to have sexual relations with Mr. Hawke upon demand. Upon a dispute between them, Mr. Hawke advised B.S. that she would now have to work with his co-accused. This frightened her causing her to stay with Mr. Hawke.
17Eventually, B.S.’s mother filed a missing person report and a police welfare check. Not wanting the attention, particularly because B.S. was 17 years of age, Mr. Hawke and B.S. moved to a different city. He told B.S. to contact her parents to dissuade further police contact. He instructed B.S. how to communicate with police. Thereafter, he had R.R. and his mother, a further co-accused, transport her to various hotels for sexual service bookings. At one point B.S. went back home temporarily but became unsatisfied and returned to work for Mr. Hawke.
18B.S. found the frequency of the customers exhausting – she would see from 1-2 clients through to 10 clients per day. There were no set working hours resulting in appointments all hours of the day and night.
19B.S. estimates that she received approximately $30K for the sale of sexual services, Mr. Hawke keeping half. Eventually, she was instructed to use the proceeds to purchase pre-paid credit cards to allow for Mr. Hawke to engage in online sport betting.
20B.S. continued communications with Mr. Hawke until 2017 but eventually ceased contact. She feared for her safety if she spoke to police. Police eventually tracked down the sexual service advertisements (including when he was under 18 years of age) and found B.S. She reported the circumstances in October 2021.
Victim K.D. – human trafficking, distribution intimate imagery, receiving material benefit
21In 2016 K.D. met Mr. Hawke when she was 16 years of age. Mr. Hawke was 25 years old. He did not use his real name. They commenced an intimate relationship. They then continued to communicate through social media. Mr. Hawke had B.S. contact K.D. over social media to recruit her to sell sexual services – she spoke to her about “working”, and K.D. believed in meant “stripping”.
22Communications ceased until 2018, when K.D. was now 18 years of age. At this point, K.D. had family conflict, was working and struggling with school. Mr. Hawke told her she could make thousands of dollars working for him. She eventually agreed but did not understand this “work” involved the sale of sexual services. Much like R.R. and B.S., she believed she was Mr. Hawke’s girlfriend.
23In September 2018, K.D. was instructed to attend a London, Ontario mall with a co-accused where lingerie was purchased and a motel room arranged. Sexualized photographs were taken and posted online by Mr. Hawke remotely. Mr. Hawke made arrangements with ‘johns’ who attended for sexual services with K.D. He advised K.D. that they would split the money made and that she was responsible to pay for the bitcoin used to pay for the advertisements. She was to send the money she made to him and/or his mother by e-transfer. She was later “trained” by another woman that was “working” for Mr. Hawke.
24K.D. continued to consistently provide sexual services working for Mr. Hawke from September 2018 through to March 2020. Despite communicating to Mr. Hawke what services she was not comfortable providing, Mr. Hawke routinely arranged for such services, including unprotected sexual activity. When she was told to get the money up front then refuse the requested activity, the ‘johns’ would get angry with her exposing her to risk. Mr. Hawke expected timely reporting of services commenced and completed and would become angry if appointments went over time. He would ignore K.D.’s complaints, concerns about being too tired and tell her she simply needed to be a “hustler”. He would demand that she return to her “cage” – meaning the hotel room. On one occasion, K.D. fell victim to a robbery from a ‘john’ resulting in her being sent by his co-accused to Sudbury to spend some time with him.
25K.D. continued the provision of sexual services for Mr. Hawke. However, when he accused her of having an intimate relationship with his co-accused, she agreed to discontinue contact with the co-accused, and continue to ‘work’ for and obey Mr. Hawke. If she failed to obey Mr. Hawke he threatened her, including that he would have his co-accused take her into the woods and shoot her. Further, she found a kitten that was purchased for her killed in a hotel bathroom upon her return, though Mr. Hawke was not physically present when that event occurred. To dissuade suspicion, Mr. Hawke instructed K.D. to fill her social media with pictures and messages reflecting her having fun. He would dissuade communications with her friends and family. Their intimate relationship became more physically abusive. Also, Mr. Hawke had K.D. recruit friends to work for him. He began to have his sister and co-accused mother drive her for arranged hotel appointments to sell sexual services.
26During the time that K.D. sold sexual services for Mr. Hawke, she received over $100K and turned over approximately $75K. In March of 2020, K.D. ended her relationship with Mr. Hawke and ceased ‘working’ for him.
27After K.D. left, Mr. Hawke used an Only Fans account and sold intimate photos taken of K.D. without her knowledge and consent. He used photographs given to him by K.D. during their relationship but also images taken of her by others working for him.
28K.D. ultimately reported the circumstances to police in March 2020. At that time, she tried to contact victim A.S. who was also working for Mr. Hawke to get her out as well.
Victim A.S. – human trafficking and receiving material benefit
29A.S. is an Indigenous female who was 22 years of age when she met Mr. Hawke and K.D. in 2018 in Sudbury, Ontario. She realized that K.D. was selling sexual services.
30In early March 2020, A.S.’s children were placed into foster care. Mr. Hawke arranged for her to join his co-accused and come to Toronto to work for him. She was given funds to take a bus to Toronto and did so on March 8, 2020. She was picked up by Mr. Hawke and commenced selling sexual services immediately, all arranged by Mr. Hawke. Like the others, she was required to follow his rules and communication expectations. She opened a bank account in her name which he then used to purchase makeup and lingerie for her using her earned money. She was instructed by Mr. Hawke how to respond to any queries from persons suspecting she was being trafficked. She was asked to attempt to recruit her cousins and friends to work for him.
31A.S. was expected to ‘work’ whenever purchasers were available, including seeing between 8 – 10 ‘johns’ each day. This exhausted her but she was told by Mr. Hawke that “money doesn’t sleep…money doesn’t care about your feelings.” While working for Mr. Hawke, A.S. was assaulted and choked by ‘johns’. She was contacted by K.D. through social media and told that she had been assaulted by Mr. Hawke which frightened A.S. She decided she wanted to leave. She saw a police officer in a hotel parking lot and approached him and told him she wanted to go home to Sudbury. Police assisted A.S. in returning to Sudbury the next day, March 14, 2020.
32While working for Mr. Hawke, A.S. received approximately $4K from purchasers of sexual services. This money was given to Mr. Hawke, but for money to pay for a hotel room and food.
Victim A.R. – procuring sexual services and receiving material benefit
33A.R. was a friend of K.D. and in February 2019 was independently selling sexual services. She was 18 years of age. She did not like her present situation and reached out to K.D. Mr. Hawke, using a different name, picked her up and they attended a hotel to meet with K.D. Mr. Hawke introduced the arrangement, that he would “do all the hard work” and that they would split the profits. He would control her online advertisements and manage her client base. She would provide payments to K.D. who would turn over the money to him.
34A.R. provided sexual services for Mr. Hawke from February 23^rd^ to March 3^rd^, 2019. She estimates she made $500 while working for Mr. Hawke. She routinely hid money from him and K.D.
35During this timeframe, she did not like how Mr. Hawke treated K.D. and encouraged her to leave him. K.D. did not leave, but A.R. ultimately did.
Victim A.H. – procuring sexual services and receiving material benefit
36In late 2019, A.H. met K.D. online. She was 20 years old. K.D. introduced A.H. to Mr. Hawke. Between November 7^th^-9^th^, 2019, A.H. was encouraged to work as an escort with K.D. for Mr. Hawke – who was identified by a different name. She was told the money would be split 50/50.
37She attended a hotel and was provided lingerie by K.D. and posed for pictures for her online advertisement. Mr. Hawke posted the advertisement, determined the sexual services for sale, communicated with the purchasers and set up appointments. Despite her requirement that condom use was a necessity, she met with two ‘johns’ demanding otherwise, including activities she was not prepared to perform. She was not willing to continue so she left the hotel. Prior to her departure, K.D. provided her with $120. Mr. Hawke attempted to persuade her to return through social media, but she refused. She never met Mr. Hawke in person.
Victim A.B. – procuring sexual services
38A.B. met Mr. Hawke through social media in 2019. She was 21 years old. As per his practice, he used a different name. She met Mr. Hawke at a mall and her purchased lingerie for her. He then brought her to a motel where they were consensually intimate.
39Mr. Hawke then asked A.B. to work for him as an escort. He described for her how it worked and that “one of his girls would show her the ropes”. At that point, she was unwilling to work for him.
40They continued to communicate by social media. On one occasion she was asked to rent a hotel room for a friend of his, K.D. and then let her in. She did so. While there, she was asked if she would work for Mr. Hawke. A.B. thought she was exclusively dating Mr. Hawke but then learned that K.D. was his girlfriend.
41On a second occasion, Mr. Hawke asked her to get a hotel room. She met Mr. Hawke there and he again asked her to be an escort for him. She confronted him about his relationship with K.D. He became angry and she left the hotel and ceased further contact.
Money laundering and financial circumstances
42During the offence timeframe, Mr. Hawke was not legitimately employed. He engaged in online sports betting, traded in cryptocurrencies, and made efforts to “clean” money he received from the others’ sales of sexual services by, for example, buying gift cards and converting profits to cryptocurrency. The victims variously reported to police that Mr. Hawke was using the proceeds to purchase assets and cryptocurrency. K.D., specifically, believed he was also using the money to purchase a condo – which police confirmed from text message communications found between himself and his mother.
43As part of his operation, Mr. 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 Mr. Hawke and his mother had access to these accounts. These monies were then spent, transferred to third parties, or converted to cryptocurrency. In particular, the following financial details were discovered by police:
(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 deposited and $88,556 withdrawn;
(ii) $89,428.98 received from Coinsquare, a Canadian cryptocurrency exchange company;
(iii) $21,475 transferred to Mr. Hawke’s father;
(iv) $4,820 transferred to Mr. Hawke’s sister for hotel and motel expenditures;
(v) $41,921 transferred by K.D. while she was trafficked; and
(vi) $800 transferred to a co-accused’s family members.
44Police learned that K.D. made $114,440 worth of cash deposits to her account and withdrew $41,571.39 in cash while she was being trafficked. She transferred $41,921 to an account held by Ms. Hawke. K.D. also spent $12,280 on hotels and motels and $14,871 at restaurants during the trafficking timeframe. She transferred $1,680 to Mr. Hawke’s father and e-transferred $3,770 to Mr. Hawke’s male co-accused’s family members.
45With respect to cryptocurrency accounts, police learned that between January 2018 and September 2021, Mr. Hawke deposited $2,306 into his Coinsquare account and withdrew $2,370. Between October 2018 and September 2021, Ms. Hawke transferred $59,249 from bank accounts and $93,084 from cryptocurrency into a Coinsquare cryptocurrency account. A further $91,254 was transferred back out to bank accounts and $61,735 was then withdrawn. Further, Mr. Hawke’s sister transferred $29,877 from bank accounts to a Coinsquare account and $19,555 from other cryptocurrency accounts. Then, $19,621 from cryptocurrency was transferred back out to bank accounts and $31,453 was withdrawn.
46A forensic accounting analysis identified indicators of money laundering, including transactional activity that was inconsistent with the account holder’s apparent financial status.
47When 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 an envelope full of cash totaling $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 Mr. Hawke’s name and what appeared to be ‘money tracking notes’;
(4) a 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, Mr. 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”.
48As part of this investigation, police seized and searched various electronic devices revealing communications between Mr. Hawke and his mother, including:
(1) references to an intended condominium purchase by Mr. Hawke;
(2) various money transfer discussions between accounts identifying both Mr. Hawke, his sister and his mother’s involvement;
(3) various discussions respecting requests by Mr. Hawke for his sister to purchase cryptocurrency for him;
(4) a conversation between Mr. Hawke and his mother 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 recruited, and expressed concerns about his co-accused 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.
Mr. Hawke’s arrest
49A warrant for Mr. 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. She falsely denied knowing his whereabouts. Thereafter, Mr. Hawke hid from police with the assistance of family members, including his mother.
50On September 8, 2021, police were conducting surveillance upon Ms. Hawke’s residence when they observed Mr. Hawke and his mother get into a vehicle and leave the residence. They were then both arrested. Mr. Hawke has been in-custody since that date.
Circumstances of the Offender
51While I do not have the benefit of a pre-sentence report, counsel has provided me a summary of Mr. Hawke’s background. Mr. Hawke is 33 years of age but was between 24 and 28 years during this offence period.
52Overall, his childhood was unstable. He was born in Mississauga, Ontario, and is the eldest child with two sisters. His parents separated when he was 10 years of age and he then lived with his mother. The instability in his parents’ relationship before and thereafter was difficult. His mother met and married a new partner which disrupted the status quo, but one child of that union is his half sister – a co-accused to these proceedings. That new relationship was unhealthy and characterized by abuse. That relationship ended but was followed by another which was equally unhealthy. Throughout, his mother struggled with an alcohol addiction requiring residential treatment on occasion. As a result, he has become protective of his mother. He also has a close relationship with his maternal grandmother who supported the family in his mother’s absence.
53Mr. Hawke began using marijuana at a young age. His family’s financial instability resulted in a variety of unstable living arrangements in public housing. Financial and food insecurity was a regular feature of his youth. I am advised that this, in part, contributed to a financial motivation respecting his subsequent criminal conduct.
54Counsel spent some time outlining Mr. Hawke’s racialized background. He comes from a mixed-race background, his mother being white, his father Black. This contributed to a feeling of being out of place, dissociated to either community. This has adversely impacted his self-identity. Growing up in school, he took away from certain experiences a sense that he was stereotyped as a troublemaker because of his racial background, that he was exposed to subtle discrimination. This included his perception that he was being directed to applied courses and trades, and away from academic streams. That he was being funnelled with other Black students into non-academic classes. Counsel relayed an incident when Mr. Hawke was 12 years of age wherein Mr. Hawke described being detained and handcuffed by police who were investigating a fight in a neighbourhood park with a white child. He felt singled out, where the other child was released.
55By way of education, I am advised that Mr. Hawke was nevertheless generally a good student. However, in grade 9 he decided to no longer attend school and simply stopped going. Truancy issues resulted. Ultimately his father, occasionally still in his life, tried to get him work in a factory which lasted for 6 months. This was an apparent wake up because he returned to schooling, caught up, did well, participated in extracurriculars, completed his secondary schooling and was accepted into Carleton University. On his own in Ottawa, he was unable to finish post-secondary studies.
56In 2013, his criminal history began. Unfortunately, this first arrest was used as an excuse not to return to his post-secondary education. In 2014, Mr. Hawke was convicted of possession for the purpose of trafficking and obstructing police and, for his first offence, received a six-month custodial disposition and a following two-year period of probation and weapons prohibition. In 2017, Mr. Hawke was again convicted of obstructing police and received a fine.
57His future plans include finishing his degree. He hopes to eventually open his own business given his background in sports betting and finance.
58I am advised that he has no intention to return to involvement in the sale of sexual services. He wants to use his remaining time in custody to upgrade his skills.
59In Mr. Hawke’s allocution, he acknowledged that he was “embarrassingly slow to recognize the harm human trafficking has on our communities, the families it tears apart and most crucially the debilitating and long-term effects both psychologically and physically on the women I victimized by encouraging and manipulating them to perform sexual services in order to achieve my own avaricious objectives.” He apologized to his victims and pledged restitution money to assist in their healing. He intends to further educate himself and pave the way for his own “path to redemption”.
Victim Impact
60Some of the victims have submitted Victim Impact Statements, Exhibits 2 – 4, globally respecting the involved defendants’ sentencing hearings.
61K.D. describes how 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.
62R.R. has detailed how the trajectory of her life changed forever when she met Mr. Hawke. She outlines how a “cycle of abuse, lies, deceit, control, coercion and non-stop mental and emotional anguish became the norm” of her life. The aftermath of her relationship with Mr. Hawke has been profound. She continues to struggle with how she was isolated and then used to profit him and his family. She vividly recalls the abuse she suffered over this period of time. Her family members continue to fear for her continued safety. She is in the process of allowing herself more healthy relationships and experiences and she reasserts ownership over herself and her body.
63A.H. looks back to the day she was exposed to Mr. Hawke as shocking, and questions and blames herself. Those events left a scar on her for which she continues to engage with community supports to address. This induced trauma has negatively impacted present healthy relationships and she feels she has been robbed of her innocence. Her confidence has been affected impacting a sense of freedom in the community.
Legal framework
64Section 286.3(1) of the Code provides that everyone who procures (meaning to cause, or to induce, or to have a persuasive effect upon) a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.
65By contrast, s. 279.01 of the Code provides that every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence and liable to, without kidnapping, imprisonment for a term of not more than 14 years. Therefore, it is important to note the distinctive inclusion in the trafficking offence of the element of exploitation.
66Section 718 of the 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 sentenced 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,
(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.
67The 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, “the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be.”1 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.”2 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.
68Further, section 718(d) of the Criminal Code compels me to be mindful of 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, as here, 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
69In response to the Supreme Court’s Attorney General of Canada v. Bedford3 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.
Prostitution also negatively impacts the communities in which it takes place through a number of factors, including: related criminality, such as human trafficking and drug-related crimes; exposure of children to the sale of sex as a commodity and the risk of being drawn into a life of exploitation; …and, unwelcome solicitation of children by purchasers.
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.4
70In R. v. N.S.,5 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.”
71In Canadian Alliance for Sex Work Law Reform v. Attorney General, Justice Goldstein identified the third-party targets of the new Bill C-36 legislative regime, “classic exploiters and/or traffickers.”6 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.”7
72Recognition of the exploitative nature of prostitution is not new. Women who sell sexual services are considered a vulnerable class of individuals. In R v Miller,8 Justice Hill noted, at paras 36-37:
The relationship between a pimp and a sex trade worker is almost inevitably inherently coercive and exploitative. The degrading domination of the pimp perpetuates the sex workers lack of self esteem and self worth. Street pimps promulgate violence as their primary control mechanism. Other pimps, particularly those administering adult entertainment or escort service operations, employ more subtle pressure including preying upon economic dependence of the sex workers employed. In other words, the demonstration of domination varies from case to case….
73In R v Antoine, Justice Lemay cites Wein J. in R v A.A. [2012] OJ No 6256, at paras 32 and 33, who described the perpetrators of human trafficking as follows:
Pimps are not harmless. They should never be perceived by the naive as being harmless. They provide no beneficial service whatsoever. For money pimps can enslave prostitutes. They control and dominate prostitutes both in their professional and in their personal lives. They enslave the females upon whose earnings they prey. They do that by exploiting the survival needs of the homeless and the unloved.9
Those who live on the avails of prostitution are the lepers of both the underworld and the decent world. The money they leach from others attracts no tax, hence directly contributes to human degradation. That is why they are perceived by those who know them, both in the criminal society as well as in the decent world, as being on a level with child molesters.
74Of course, these observations 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, Ontario, in particular, is a focus of this concern that is not hard to find. The rise of human trafficking and prostitution related ‘pimping’ is nationally and locally 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.10 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 local screening of the documentary Dark Highway brings home the point.11 I reference these reports because local conditions matter and are relevant to any assessment of the gravity of an offence before the court.
Ranges of sentences for human trafficking and procuring prostitution
75The primary sentencing principles for human trafficking and procuring the sale of sexual services is denunciation and deterrence.12 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.13 A review of the evolving sentencing common law makes it plain that the range of sentences for human trafficking related offences has been trending upward in recent years.
76While the sentencing common law in the human trafficking context has burgeoned over the last decade, there is far less established authority respecting established sentencing ranges for s. 286.3 procuring prostitution offences.
77In R v Lopez, Justice Campbell discussed the range of sentences appropriate for “pimping offences.” In the specific context of human trafficking, he observed that “where the accused has coerced a woman into becoming or remaining a prostitute and exercised a significant degree of control over her activities, sentences of four or five years are typically imposed.”14 There, the court was dealing with an almost 18 month exploitative arrangement of one victim resulting in jury convictions for human trafficking, receiving a material benefit, advertising sexual services, assaulting and threatening the victim repetitively and obstructing justice. But for the offender’s excellent rehabilitative prospects, a longer sentence would have been imposed.
78The Ontario Court of Appeal in R v S.M.,15 held that that a 5 to 5 ½ year sentence is at the lower end of the range for the trafficking of one victim. In particular, I adopt the reasoning of Justice Di Luca in R v McEwan,16 where he examined a number of cases and found, subject to a various considerations including guilty pleas, mitigating factors and related criminal histories, the range for human trafficking in one victim is between 4 and 8 years.
79Both the Crown and defence provided helpful sentencing authorities for procuring prostitution and trafficking offences. They assist generally with the appropriate range of sentence, of which some of the more relevant authorities follow.
Human trafficking
80In R v Taylor, the offender was convicted at trial of 18 human trafficking and prostitution related offences, including two sexual assaults, involving seven victims. He operated a 13 year sophisticated and lucrative prostitution ‘escort business’ taking advantage of vulnerable woman in their early 20s. He hired as many as 500 women over the course of his activities. He profited over $1.7 million and supported his elderly mother who was in need of care. He was cumulatively sentenced to 15 years incarceration.
81In R v Downey,17 the offender was convicted of 16 counts of human trafficking related offences involving four victims. He operated an escort agency where he recruited women to work for him and provide all of their earnings from the sale of sexual services in exchange for accommodation and promises for future riches. Significant control and manipulation were exerted over these victims; however, no physical or sexual assaults were perpetrated. The offender had a prior conviction for trafficking a 14-year-old. He was sentenced to 15 years incarceration, 7 years consecutive for three victims, 5 years for the fourth but reduced from 26 years to 15 years for totality consideration.
82In R v Burton, the offender was convicted of two human trafficking and receiving material benefits offences respecting two victims. Similar to here, he employed the “boyfriend pimp” approach to this exploitation. While he was not overtly violent, he controlled the victims’ movements and coerced compliance. He took all the proceedings from the sales of sexual services which occurred over 4 years. He was sentenced to 10 ½ years, 8 ½ years each for the trafficking (concurrent), with 5 years concurrent for the material benefit offences and a consecutive 2-year sentence for obstructing justice.
83In R v S.H-O., the offender pleaded guilty to six offences with respect to two victims, including two counts of human trafficking, deriving a material benefit from human trafficking, advertising sexual services and assaults. In circumstances not significantly dissimilar to those present here, the court imposed a totality disposition of 8 ½ years.
84In R v M.E.D.,18 a human trafficking, prostitution and sexual assault case, the offender persuaded the victim, a struggling university student, to sell sexual services so that she could pay for living and tuition expenses. He advertised and controlled the sale of her sexual services, keeping the income earned over the course of two months. He forced her to perform sexual acts upon him. To extract herself from his grip and this ‘work’, she was required to pay him $10K. The offender was convicted after trial. He was youthful with an unstable upbringing and a limited criminal history. He was sentenced to a global 5-year term, with 4 years attributed to his procuring prostitution offence, concurrent, which was, surprisingly, consistent with the human trafficking convictions as the sexual assault garnered a 12-month consecutive term. As a result of the extent of matters obviously globalized for sentencing purposes, I find little direction in the quantum of 4 years incarceration for the procuring prostitution offences.
85In R v Greaves,19 the offender was found guilty by a jury of human trafficking, procuring prostitution, and receiving a material benefit from prostitution relating to one victim. He later pled guilty to human trafficking and receiving a material benefit from prostitution of a minor. The defence sought a conditional sentence while the Crown countered with a 7-year jail recommendation. The offender was sentenced to a totality of 43 months (or just over 3 ½ years) incarceration. Specific to the procuring of prostitution count relating to the adult victim, the offender received a 3-year sentence, concurrent. This offender was 22 years of age and a first-time offender who had significant immigration consequences resulting from these findings.
86In R v Salmon,20 the offender was found guilty by a jury of human trafficking, receiving a material benefit from human trafficking, procuring prostitution, and receiving a material benefit from that. One victim was involved who was “just past her teenaged years” and was trafficked for under six months. A 6-year sentence was imposed on this first-time offender.
87In R v Jordan,21 a 9-year global sentence for human trafficking, procuring prostitution and intimidating a justice system participant was imposed respecting what the Ontario Court of Appeal framed as egregious facts involving the complete domination and control of the victim.
88In R v Eftekhar,22 the offender was convicted by a jury of procuring prostitution, obtaining sexual services for consideration, assault, and human trafficking. The offender brought the victim into prostitution and was “controlling and domineering” intimidating the victim into believing that her safety was at risk if she failed to continue to provide sexual services at his direction. He was sentenced to a global 4-year disposition, with a concurrent sentence of 2 years for the procuring offence. How the court distinguished between the human trafficking and procuring prostitution delicts was not entirely clear.
Procuring prostitution
89In R v Mascoe,23 the Ontario Court of Appeal dismissed an appeal against a 5-year sentence for an offender convicted after trial of both procuring and receiving a material benefit from prostitution. The offender exerted control over the victim by driving her to retrieve clothing, going to the mall to purchase items and then to a hotel to begin her sale of sexual services. In addition, this offender monitored the victim’s exchanges with ‘clients’ and collected all the money she earned. Once, he berated her for not working hard enough. And, emphasizing his control, he would not allow her to visit her family without him. Unlike Mr. Hawke, this offender had a lengthy and related criminal history with two prior convictions for like offences, being on probation for a similar offence at the time of this offence. He was found to have no interest in rehabilitation as the “sex trade” was his livelihood. The Crown had sought an 8-year sentence, the defence countered with 15 months incarceration noting the lack of any violence or intimidation involved. Arguably, I note that the presence of violence and/or overt intimidation would qualify the offender for human trafficking consideration. Nevertheless, the court’s 5-year sentence was not disturbed, the appellate court emphasizing the offender’s related record and poor rehabilitative prospects.
90In R v J.G.,24 Justice Barnes sentenced the offender after trial findings of guilty on procuring, advertising, obtaining a material benefit from prostitution and possession and distribution of child pornography charges. He was sentenced, globally, to 4 ½ years incarceration, with 4 years attributed to the procuring offence. While there was no violence involved and the victim sought him out to assist her in the sale of sexual services, he had a strong influence over her. He managed the victim’s sales of sexual services for three weeks by arranging appointments, accommodations for the appointments, taking pornographic pictures of her and advertising her services. He provided “some” protection and monitoring. He received half of her earnings. He had a lengthy criminal record including a prior procuring prostitution offence, however, was still a youthful adult. I found helpful the court’s assessment of systemic racism as a mitigating factor on this offender’s sentencing considering “a more nuanced and informed understanding of the impacts of systemic racism to achieve a fair, just and appropriate sentence.”25
91In R v Kanyanga,26 the offender pled guilty to three counts, including procuring prostitution, receiving a material benefit from prostitution, and advertising sexual services. The Crown sought a 5-year sentence and the defence countered with a request for 3 years. The offender, over the course of a week, acted as the victim’s “pimp”, splitting the victim’s earnings, and engaging in conduct short of threats or coercion. He received a totality disposition of 4 years incarceration.
92I found particularly helpful the analysis from R. v. Williams,27 where Justice Trimble sentenced an offender found guilty after a jury trial. This offender exploited his intimate relationship with the victim to control her, then decided her ‘work’ schedule, booked her appointments, set prices, negotiated with ‘clients’ what sexual services would be performed and kept all her income paying her only what he deemed she needed from time to time. Indeed, demonstrative of his control, he required the victim to pay him for times when she could not ‘work’. The Crown sought a 3-year sentence while the defence countered with a request for an 18-month conditional sentence. Amongst other mitigating features, the defence highlighted his racial background, as a young, Black man who had been the subject of racism. An enhanced pre-sentence report outlining his racialized experience as a Canadian immigrant was assessed. While his racial background and the associated social and economic challenges were noted, the court could not find that his race and/or racial background played any direct or indirect role in his offending conduct. He was on bail for 7 years, without incident, and had no criminal history with good rehabilitative prospects. The court found that the range of sentencing was between 1- and 5-years imprisonment and, specifically, 1 to 3 years for first time offenders. He was sentenced to 28 months for the procuring prostitution offence, 20 months concurrent for the receiving material benefit offence.
93In R v Deidun,28 the offender and his partners exercised control, direction, and influence over the activities of two complainants they procured into the sale of sexual services. They made all arrangements, advertisements and managed all payments for the services in an exploitative fashion for this for-profit enterprise. The court utilized factors suggested in R v Tang, 1997 ABCA 174, [1997] AJ No 460 (CA) and R v Miller, [1997] OJ No 3911 (Gen. Div.) for its sentencing analysis. While they are helpful, I will defer to factors outlined post Bill C-36 as found in Lopez, which falls outside the nuisance based former prostitution legal regime. Ultimately, the offender was sentenced to 3 years for the procuring related offences involving the two complainants. His partner, Ms. Bernard, who was less directly active and not directly receiving material benefits, was sentenced to 2 years incarceration.
94In R v McPherson,29 the offender was found guilty by a jury of procuring prostitution and controlling the victim’s movements to aid or compel her to engage in prostitution for gain. He set up the 19-year-old victim, with whom he was in an intimate relationship, as a dancer in an exotic dancer and took most of her earnings. He then instructed her to perform sexual services for club patrons. This ‘pimping’ lasted for 18 months wherein he exercised significant control over her, including her work locations, her schedule, and the sexual acts she was required to perform. The offender expected her to meet an earnings quota. He took most of the money and lived largely off those proceeds. This experience had a lasting negative impact upon the victim. He was sentenced to 3 years incarceration.
95With the benefit of these authorities, I am satisfied that the procuring prostitution range as suggested in Williams, 1 to 5 years incarceration, 1 to 3 years for first-time offenders, is justified.
Analysis
A fit sentence for this offence and this offender
96Using existing jurisprudence, Justice Campbell in R v Lopez30 identified a non-exhaustive list of factors to assist in the sentencing assessment of “pimping offences” which I believe facilitate the assessment of trafficking and prostitution procuring related offences. These factors including the following, for which the vast majority here apply:
(1) the degree of coercion or control imposed by the ‘pimp’ on the prostitute's activities – here, the control exerted was broad, active and direct, even when Mr. Hawke was not present for the arranged sexual service appointments;
(2) the amount of money received by the ‘pimp’ and the extent to which the pimp allowed the prostitutes to retain their earnings – here, an extraordinary sum of money was procured from the coerced activities of the victims with Mr. Hawke, at the very least, taking half;
(3) the age of the prostitutes and their numbers – all the victims where young, many meeting Mr. Hawke in their mid-teens, and groomed to work for him as they got older. Relative to comparisons, seven such victims place Mr. Hawke’s conduct at the upper end of offence cycle severity;
(4) any special vulnerability of the prostitutes – in general, the victims had experienced instability in their lives that was knowingly taken advantage of by Mr. Hawke, often initiated through intimate relationships with the victims who thought they were exclusive, making them even more vulnerable. In particular, A.S. was an Indigenous young woman who had just lost her children, when she succumbed, however briefly, to Mr. Hawke’s recruitment and exploitative efforts;
(5) the working conditions in which the prostitutes were expected or encouraged to operate, including their physical surroundings in terms of soliciting and servicing customers, and safety concerns, in addition to whether appropriate health safeguards were taken – Mr. Hawke’s corrupt supervision/management of the victims’ sale of sexual services did not include any provision of security for them despite the inherently and at times actually dangerous activity undertaken, evidenced by the victims’ reports of abuse by ‘johns’ and robbery experiences. Further, despite complaints about the volume of work, Mr. Hawke pressured further sales because “money doesn’t sleep” and they needed to be “hustlers” for him;
(6) the degree of planning and sophistication, including whether the ‘pimp’ was working in concert with others – Mr. Hawke ensured that his tracks were covered through the assistance of his co-accused and the compelled recruiting assistance of existing victim workers;
(7) the size of the ‘pimp's’ operations, including the numbers of customers the prostitutes were expected to service – Mr. Hawke’s operation was extensive enough to keep him profitable for some five years, which involved numerous “workers” to service as much as a dozen ‘johns’ per and all hours of the day;
(8) the duration of the pimp's exploitative conduct – as noted, Mr. Hawke was actively leading this exploitative enterprise for some five years;
(9) the degree of violence, if any, apart from that inherent in the ‘pimp's’ parasitic activities – Mr. Hawke’s repeated threats, both direct and indirect, were taken seriously by the victims and his use of occasional violence and property damage was noteworthy;
(10) the extent to which inducements such as drugs or alcohol were employed by the ‘pimp’ – there is no evidence of this form of coercion;
(11) the effect on the prostitutes of the ‘pimp's’ exploitation – the victim impact statements evidence profound and lasting negative effects for multiple victims, and Friesen provides authority for the prospect of inferring consistent impact for those victims who did not submit their own statements;
(12) the extent to which the ‘pimp’ demanded or compelled sexual favours for himself from the prostitutes – there is evidence that Mr. Hawke took advantage of a number of his victims if like fashion for personal gratification and/or to maintain control;
(13) the age of the customers attracted to the services of the prostitute – here, there is no substantive evidence;
(14) any steps taken by the ‘pimp’ to avoid detection by the authorities – Mr. Hawke went to great lengths to shield his involvement through the intervention of his recruited co-accused, compelling recruitment and other efforts from some of his victims, and his significant efforts at laundering the proceedings of this criminal misconduct; and
(15) any attempts by the accused to prevent the prostitute from leaving his employ – beyond moral or like persuasion, there is not much evidence respecting Mr. Hawke’s retention efforts.
97With the Lopez factors considered, the most prevalent aggravating factors here include the following:
(1) the nature of the offending conduct. Mr. Hawke led a multi-accused sex trafficking and prostitution operation that had a degree of sophistication and extensive profitability wherein he consistently controlled, intimidated, coerced, extorted, threatened, abused (both physically and mentally), and manipulated the victims;
(2) the number of victims (seven) identified in these circumstances;
(3) the specific vulnerability of these victims. For example, K.D. was 18 years of age when procured into the “sex trade”, and merely 16 years when she met Mr. Hawke. She had been having trouble at home and school. A.S. is an Indigenous woman who was 22 years of age when procured and had just had her children taken into foster care. B.S. was 16 years old and having trouble at home when she was recruited. A.B. was 21 years of age and believed she was dating Mr. Hawke exclusively – a fallacy most of them were led to believe. A.R. was 18 years of age attempting to work independently in this area. Mr. Hawke knew of these vulnerabilities and took advantage of them including commencing these relationships with trust through personal intimacy;
(4) the offence timeframe spanning some five years, with particular victims being subjected to this coercion for a substantial period of time;
(5) the offending conduct took place over many jurisdictions in Ontario, contributing to the victim’s isolation;
(6) he compelled a significant volume of sales of sexual services, often well beyond the victim’s preferences and/or capacities and he selfishly denigrated their resulting complaints;
(7) despite managing this operation, he commonly exposed the victims to precarious and harmful situations by dangerously coaching them towards foreseeable conflict with customers. After repeated violent incidents, he made few if any efforts to remediate the victims’ future risk;
(8) he was solely motivated by profit, for himself and his family, including shamelessly profiting off intimate images of the victims which he sold online after they left his employ;
(9) he actively made efforts to shield his involvement by various means through the use of third parties, including co-accused and other victims, to prevent apprehension. These efforts included laundering the proceedings by a variety of means and coaching the victims how to avoid suspicion and police discovery;
(10) the use of victims to recruit others to work for him, further victimizing them in the process;
(11) the impact upon the victims was profound, both specifically and inherently, and ongoing;
(12) his criminal record includes convictions in 2014 for drug trafficking and obstructing police, in 2017 for again obstructing police; and
(13) local conditions inform this communities pressing concern over this form of abuse of women and girls.
98In addition to these aggravating factors, the Crown sought the admissibility of letters written by Mr. Hawke while in pre-sentence custody to a woman named Elaine, an apparent new or intended intimate partner. These letters include him referencing Elaine as his “bitch” and that he will “have to break and rebuild you like you would a wild horse”. They need to have dependence on one another, and she must “acknowledge my ownership over you.” He goes further, however, to acknowledge that Elaine does not like this commentary because of how “derogatory it is and blah, blah, blah, but…you’re my bitch.” While I allowed these letters to be filed as Exhibit 14, what I said then still applies. These isolated references from more protracted communications between partners may reflect a misogynistic believe system, but that does not invariably support a heightened risk for abuse of power and control consistent with his offence related conduct. While the Crown urges me to conclude that these references offer a mirror into the reality of an offender still mired in an offence enabling mindset that highlights his continuing risk to reoffend, or his poor prospects of rehabilitation, in the alternative they may simply, on a plain and global reading, provide a window into this offender’s struggle with an established sexist mindset as opposed to an endorsement of a propensity towards exerting power and control over women in general. I find that character, short of an expressed propensity for like or other criminality, is not fertile terrain as an aggravating feature on sentence. The weight such evidence offers to this sentencing exercise is negligible.
99I have also considered a number of mitigating factors relevant to proportionality, including:
(1) Mr. Hawke, in effect, pled guilty by accepting a finding of guilt without contest or trial. He chose a plea nolo contendere to preserve appellate rights. While this is not a traditional formal acknowledgement of remorse and appreciating that it came on the eve of trial after pre-trial applications rulings were rendered, I do grant it some benefit because it saved the victims from a protracted trial experience and presumed further resulting trauma. Given the uncertainty of the trial process, particularly in complex human trafficking and prostitution prosecutions, this is no small concession which deserves meaningful mitigating credit;
(2) Mr. Hawke has not been idle in pre-sentence custody, completing approximately 13 correctional rehabilitative programs during his time and furnished the certificates in support. Given his prior educational achievements, this supports his capacity for improvement;
(3) Mr. Hawke has sold a condominium unit purchased with proceedings of these offences in an effort to make restitution to the victims. I am advised that $40,000 have been provided to his counsel, in trust, as partial restitution. He is not opposing the Crown’s significant restitution request nor is he opposing a fine in lieu of forfeiture for the remaining sum. The counterpoint to this mitigating feature, however, was presented by Mr. Hawke’s May 3^rd^, 2024 letter to Elaine in Exhibit 14 on this hearing. Therein, Mr. Hawke expresses an unfiltered assessment of his restitution intentions: “I agree to pay $140K to 5 ex whores.” He goes on to express frustration for the lack of appreciation that his co-accused have shown to him for taking, in essence, the brunt of the punishment from these offences;
(4) his pre-sentence custody conditions were realistically harsh and form part of a request for Duncan credit consideration, centred upon detention centre overcrowding and lockdowns – features that, based upon this Court’s experience and the evidence presented, are all too familiar and form important mitigating features for consideration; and
(5) his racialized background, history with perceived racism, and the reality of an overrepresentation of racialized persons in custody is a relevant context for moral culpability assessment and, most importantly, the principle of restraint.
Social context evidence
100The defence has raised the issue of social context evidence, the presence of anti-Black racism and discrimination, as a relevant feature for my consideration respecting the extent of Mr. Hawke’s moral blameworthiness. Mr. Hawke’s related history, as noted, was relayed to me during submissions, which did not directly speak to the impact of systemic racism or discrimination upon his life or his choices, related to or separate from this offending conduct.
101There is now a developing line of sentencing authorities that explore the impact of systemic racism and its relation to sentencing. In R v Jackson, Justice Nakatsuru observed that “African Canadians have been jailed three times more than their general representation in society for quite some time. The problem is not getting better.”31 However, over a decade earlier, our Court of Appeal in R v Hamilton cautioned that:
The fact that an offender is a member of a group that has historically been subject to systemic racial and gender bias does not in and of itself justify any mitigation of sentence. Lower sentences predicated on nothing more than membership in a disadvantaged group further neither the principles of sentencing, nor the goals of equality.32
102Despite this caution, the court also noted that sentencing courts are “required to take into account all factors that are germane to the gravity of the offence and the personal culpability of the offender.”33 The individualization of sentencing remains a fundamental duty for sentencing judges. In Jackson, the court went so far as to ask, rhetorically, “what is wrong in paying particular attention to the circumstances of the African Canadian offender to achieve a truly proportionate sentence. The answer is self-evident. Nothing.”34
103In Ontario, clarity respecting the use of social context evidence was provided by our Court of Appeal in R v Morris.35 There, a 23-year-old black man without a criminal history was found guilty after trial of possessing a loaded firearm in a public place. More aggravating, he ran from the police and attempted to discard the firearm exacerbating the public risk. The court noted that while social context evidence does not detract from the seriousness of the offence or the need for denunciation, it can provide a basis for adding weight to the objective of rehabilitation and diminish the weight placed upon specific deterrence. However, there must be a connection between the overt and/or systemic racism identified and the circumstances or events that explain or mitigate the criminal conduct in issue. Absent this connection, mitigation of a sentence based simply on the existence of overt or institutional racism becomes an impermissible discount based upon an offender’s race. That said, a court when applying the restraint principle, can consider the over-incarceration of Black offenders in Canadian society and, in appropriate cases, address this concern through the imposition of a conditional sentence.
104I have reviewed and considered a number of post-Morris authorities that have relied upon anti-Black racism as a mitigating factor related to an offender’s moral blameworthiness. By and large, these authorities, informed by enhanced pre-sentence reports that speak directly to the offender’s experience with racism, involve scenarios where gun possession charges are linked, at least to some extent, with the offender’s history and resulting fears within the community. These offenders, it is argued, have diminished options due to the social context which informs, but does not excuse, their possession of dangerous illegal weapons.
105Counsel referred me to R v Patten, where Justice Quigley faced a difficult home invasion sentencing involving racialized offenders. Social context evidence was proffered not to explain or draw any nexus between their background and the offence specifics, but instead in support of a “balance between deterrence and denunciation, moral culpability, and the rehabilitative prospects of these two [offenders].”36 This social context forms apart of the proportionality exercise which is the fundamental and overarching principle of sentencing.
106Here, I have a paucity of evidence respecting Mr. Hawke’s experience with anti-Black racism or how it informed, contextually, this offending conduct. I do not have an Enhanced Pre-Sentence Report, as I understand they are now referred. I suppose that I am simply asked to infer from what has been relayed in submissions that he has been the victim of anti-Black racism and, by implication, that it has somehow informed his offence related conduct and resulting moral blameworthiness.
107Of course, it is not hard to imagine that Mr. Hawke has experienced racism and discrimination in his life. As a youth perceived to be caught between cultures, but identified as Black by outsiders, he felt dissociated within either community which corroded his self-identity efforts. He felt victimized by stereotypes through his early schooling and resorted to those expectations despite his obvious educational capacity. His eventual interactions with police were impacted by an impression that she was profiled and stereotyped. The resulting impression that he was perceived as a “troublemaker”, a context is formed that does not excuse but provides a worldview insight into his perceptions which form apart of the assessment of his moral blameworthiness.
108In R v Gabriel, Justice Campbell was provided with a cultural impact assessment outlining the history of the African Nova Scotian experience over the past 400 years. The court considered what it called the “legacy of racism in Nova Scotia”, a legacy that very well may have parallels in southern Ontario, and commented:
A person’s racial background is also a part of his identity. It does not determine his actions. It does not establish a lower standard for assessing moral culpability. It does not justify or excuse criminal behaviour. It may however help in understanding the broader circumstances that acted upon the person.37
109Context matters. I find Justice Campbell’s acknowledgment of it as a helpful and rational consideration to the sentencing exercise, although its effect is diminished from a strict Morris perspective by the lack of an established nexus to this particular offending conduct.
110Mr. Hawke’s background and possible, if not likely, experiences with overt or systemic racism do not excuse or lesson the seriousness of this offending conduct. Nevertheless, his life experiences may attenuate his moral culpability if it provides an explanation for his choice to commit these offences. Here, I cannot confidently leap to that finding on this evidentiary record. To subscribe his offending conduct directly or even indirectly to his racialized experience would be to infer well beyond the factual foundation presented by this evidentiary record. Of course, that does not take away from my ability to consider, in general, this offender’s disadvantaged background as a young Black Canadian living in urban Ontario, as a proper, though perhaps less compelling, mitigating circumstance.
Duncan credit
111I now turn to the issue of Duncan credit raised by Mr. Hawke. As recently noted by the Ontario Court of Appeal in R v Brown, “judges must recognize that where an offender has already experienced particularly punitive conditions during their pre-sentence custody, the punishment they receive should be reduced to take this into account, but the degree of mitigation is a matter of discretion in all the circumstances, and not a matter of mathematical precision.”38
112Application of this form of sentencing consideration has evolved. When the Ontario Court of Appeal released R v Duncan,39 the broad practice was to respond to especially punitive conditions in pretrial custody by quantifying and applying a numerical deduction from an otherwise appropriate sentence. However, with that court’s release of R v Marshall, Justice Doherty cautioned against treating the mitigating effect of harsh conditions of pretrial custody “as a deduction from the appropriate sentence in the same way as the ‘Summers’ credit.”40 That court preferred to treat punitive pretrial conditions as a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at an appropriate sentence. This approach prevents the court from giving such harsh conditions “unwarranted significance in fixing the ultimate sentence imposed.”41 I must guard against this mitigating factor rendering an otherwise fit sentence, unfit.
113Mr. Hawke submitted an affidavit and was cross-examined respecting his description of penal circumstances at both the Elgin Middlesex Detention Centre (from September 2021 through August 2024) and the Central North Correction Centre (thereafter), where he was generally housed. At EMDC, he describes being typically triple and quadruple bunked. This was of less concern at CNCC. Institutional records verify excessive bunking over the course of Mr. Hawke’s global pre-sentence custody. Mr. Hawke believes that those records are, nevertheless, far too conservative.
114Mr. Hawke also complained of frequent institutional or range specific lockdowns, some of which related to Covid 19 mitigation protocols. Institutional records verify 74 lockdowns during his first long stint at EMDC. To supplement the institutional records filed, Mr. Hawke provided personal diary notations which he claims demonstrate a more accurate and pervasive lockdown culture than officially reported. Unfortunately, I found those records, supplemented by Mr. Hawke’s viva voce evidence, largely unreliable and, admittedly, incomplete as he lost some of his diaries and failed to always record the length of multiday events.
115I do not propose to parse with a fine tooth comb the alleged disparity between these proffered sources. Suffice it to say, overcrowding in such an institutional environment is not only dehumanizing but is both inherently and actually dangerous. It can and does disproportionately foster violence and intimidation on custodial ranges, as Mr. Hawke outlined, and is harmful mentally to inmates exposed to it. Frankly, these bunking and lockdown conditions, however reliable the quantum may be, are no surprise to this court, indeed they have become regrettably expected. That it has come to this, an expectation of poor custodial inmate conditions, is a blight the repute of the administration of justice in general. Presumed innocent individuals, crowded into a cell, locked down too often, and frequently forced to sleep on the floor gives meaning to the regrettable monicker of “warehousing” that too often forms on the lips of justice system participants. It is no surprise, therefore, that courts give real effect, as I intend to, to the mitigating effect of harsh pretrial conditions.
116Beyond these concerns, a great deal of evidence was lead respecting an August 27, 2022, toilet paper incident that was largely captured on range video. To be clear, whether or not the range guards where exerting improper control and retribution through the distribution of toilet paper, I found the entire complaint largely trivial as compared to the bunking and lockdown headlines that, effectively, took a backseat.
117Finally, a medical issue involving Scarlett Fever in July 2022 was outlined. Upon a review of the totality of that evidence called, appreciating that Mr. Hawke may have thought he was going to die as a result while at the EMDC, he was medically referred, triaged, diagnosed (apparently properly) and sent for hospital treatment within a matter of days. While such a medical condition is not to be trifled with, overall, I am unable to conclude that detention centre or hospital staff’s response was such that Mr. Hawke was put at undue risk that merits further mitigating consideration on sentencing.
118As a result, I will grant “Duncan credit” as an additional mitigating circumstance short of it rendering the totality sentence for these offences unfit. As suggested in Marshall, I will not strictly quantify this credit but apply it as a significant mitigating factor as part of my overall proportionality assessment.
The cumulative balancing
119A cumulative balancing of all these factors is necessary to achieve sentencing proportionality. Mr. Hawke’s offending conduct must be denounced and deterred in the loudest possible way. His actions were exploitative, coercive, manipulative, threatening, sometimes violent, completely self-centred, and prolonged. The quantum of harm he occasioned to numerous victims is incalculable. The victims’ lives have been forever changed; the harm done to them has been profound. Viewed against a continuum of aggressive and controlling like behaviour, Mr. Hawke’s offence cycle falls on the upper end of like offence seriousness. All human trafficking and prostitution related misconduct is inherently grave and demeaning. However, this conduct, in its totality, is exceptionally grave.
120From a moral blameworthiness perspective, Mr. Hawke’s culpability is extraordinary. There is little to point to which effectively mitigates against his moral culpability but for the accepted social context evidence presented. His callous indifference to those he was intentionally exploiting for personal and familial profit is remarkable. These circumstances outline a complete disregard for the safety of the victims even when repeatedly made aware of the risks and actual harm they were exposed to. It is difficult to conclude other than that Mr. Hawke held a misogynistic acceptance of the commodification of women’s bodies and their resulting lack of human dignity. Put simply, the victims were mere objects to be manipulated for his personal benefit and Mr. Hawke enthusiastically perpetuated the scourge that is prostitution within our community.
121Mr. Hawke is not a first-time offender, though his history is not largely related. I have considered this offender’s background, including a racialized history contextually understood but divorced from a nexus to this offending conduct, in addition to the significant mitigating benefit I afford to pseudo guilty plea. I credit him for securing a substantial sum for restitution, even though it pales in comparison to attributable economic the loss he occasioned to these victims, let alone the more confounding psychological harm. That this restitution was secured from the sale of a property that was a by-product of the very proceedings of his criminal misconduct attenuates, but does not eliminate, the mitigating benefit this financial contribution merits. Finally, I have carefully considered the conditions faced by Mr. Hawke throughout his pre-sentence custody. As I have noted, overall, they present a real and persuasive mitigating factor on sentencing placing Mr. Hawke at a lower end of the available sentencing range for this global misconduct.
122I have considered the Supreme Court’s instructions in R v Friesen42 respecting the imposition of consecutive versus concurrent sentences. Offences that are closely liked to each other such that they constitute a single criminal adventure may, but are not required to, receive concurrent sentences, while all other offences are to receive consecutive sentences. Here, given the prolonged offence narrative involving victims at a variety of stages, I believe that it would be unprincipled to render concurrent sentences on offences that relate to different victims. Where the same victims are involved with overlapping offences, the principle of totality may justify concurrent sentencing consideration.
123To address the predominant sentencing principles of deterrence and denunciation, I conclude that a 15-to-25-year sentencing range could meet the needs of proportionality balanced against the important principal of restraint. But for the present mitigating factors, a sentence of at least 25 years would have been entirely appropriate.
124I must now address the sentencing principle of totality. In effect, the totality principle requires judges to ensure that the series of sentences are, in aggregate, just and appropriate. As the Supreme Court in R v Bertrand Marchand reminds me, totality requires me to take “‘one last look at the combined sentence’ to assess whether it is ‘unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender.’ If the principle of totality is offended, the sentences can be adjusted by making some concurrent, or if this does not achieve a just and appropriate sentence, by reducing the length of one or more sentences.”43
125Having considered the positions of both the Crown and defence while balancing the need for proportionality, restraint, and totality, Mr. Hawke’s custodial sentence will be broken down accordingly:
(1) Count 6: human trafficking with respect to K.D. – 7 years, reduced to 5 years (1825 days) for totality;
(2) Count 14: distributing intimate imagery with respect to K.D. – 2 years, concurrent;
(3) Count 17: procuring sexual services with respect to A.B. – 2 years consecutive, reduced to 1 year (365 days) for totality;
(4) Count 19: procuring sexual services with respect to A.R. – 3 years consecutive, reduced to 1 ½ years (548 days) for totality;
(5) Count 20: receiving a material benefit from sexual services with respect to K.D., A.R., A.H., A.S. and B.S. – 6 years concurrent;
(6) Count 23: procuring sexual services with respect to A.H. – 3 years consecutive, reduced to 1 ½ years (548 days) for totality;
(7) Count 25: human trafficking with respect to A.S. – 4 years consecutive, reduced to 3 years (1095 days) for totality;
(8) Count 28: human trafficking with respect to B.S. – 5 years consecutive, reduced to 3 years (1095 days) for totality;
(9) Count 38: assault with respect to R.R. – 6 months consecutive (183 days); and
(10) Count 40: laundering proceeds of crime – 3 years, concurrent.
126As a result, the effective disposition for this offence narrative merits a global 24 ½ year custodial sentence. However, with totality consideration, that disposition is reduced to 15 ½ years, or 5,658 days.
127Finally, I must credit Mr. Hawke with his actual served pre-sentence custody which I am satisfied can be credited at the accepted Summers44 ratio of 1.5/1 days. As of this date, Mr. Hawke has served 1,311 days of pre-sentence custody. His enhanced credit will be 1,967 days (or, approximately, 5 ½ years). This is deducted from Mr. Hawke’s cumulative sentence, reduced for totality, and therefore results in a remaining custodial disposition of 3,691 days (or, approximately 121 months) which is just over 10 years left to serve.
Ancillary orders
128As noted, the Crown seeks a DNA order, a weapons prohibition and a non-communication order with the victims while Mr. Hawke serves his sentence. These requests are not opposed.
DNA
129Given the qualifying nature of this offending conduct as a “primary designated offence”, under s. 487.04, pursuant to s. 487.051 of the Code Mr. 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.
Weapons Prohibition
130Given the inherently exploitative nature of this offending conduct and its surrounding circumstances, and Mr. Hawke’s prior weapons prohibition order, pursuant to s. 109(1) of the Code, Mr. Hawke will be prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, prohibited ammunition and any other firearm or any cross-bow, restricted weapon, ammunition and explosive substance for life.
Non-Communication order
131Finally, pursuant to s. 743.21(1) of the Code, Mr. Hawke is prohibited from communicating, directly or indirectly with all of the globally identified victims, including: K.D., B.S., R.R., A.H., A.R., A.B., A.S., related witness L.S. and co-accused Joel Ramocan.
Restitution
132The Crown seeks a total of $141,120 by way of a restitution order. While the defence does not concede that a restitution order is appropriate in all human trafficking or prostitution related offences, Mr. Hawke does not oppose the issuance of a restitution here given the specific circumstances of this case. Indeed, as already noted, Mr. Hawke has sold the condominium unit earlier referenced, purchased with the proceeds of these offences, and has provided counsel with $40,000 in trust to be applied to a restitution order. As noted, the defence relies upon this restitution in hand as a mitigating factor for this sentencing disposition.
133The Crown presents the request for restitution as a joint submission by the parties. It is not. A joint submission, in the persuasive fashion intended by the Crown, applies to a global sentencing disposition, not a segment of one. Here, the defence has made it plain in their independent submission that this restitution order is unopposed, indeed welcomed for its otherwise mitigating benefit.
134Restitution orders are governed by ss. 738 – 739 of the Criminal Code. Restitution orders are available to redress the harms of any criminal offence. Their purpose is to assist in preventing victims from having to resort to civil litigation. They are designed to redress a wide range of financial consequences and/or damages flowing from an offender’s criminal conduct that is readily ascertainable, including:
(1) compensation to victims who have lost or had property damaged;
(2) compensating victims for bodily or psychological harm suffered as a result of the harm caused, including loss of income or support;
(3) compensating for bodily harm or threat of bodily harm to an offender’s intimate partner or child or any other person, for the reasonable expense of relocation;
(4) compensating any person who must incur expenses for re-establishing their identity lost or damaged due to criminal conduct; and
(5) compensating a person who must incur expense to remove intimate imagery from the Internet or other digital network as a result of criminal conduct.
135This restitution allowance is consistent with the provisions of the Canadian Victims Bill of Rights, which asserts a victim’s right to apply for restitution against an offender and, if made but not paid, to have the order entered as a civil court judgment.
136In R v Swaby, recognizing that an offender’s ability to pay a restitution order is irrelevant, Justice Goldstein noted the elements necessary for a restitution order:
(1) there must be bodily or psychological harm to the victim;
(2) the amount must not exceed all pecuniary damages including loss of income or support; and
(3) the amount must be readily ascertainable.45
137On this evidentiary record, there is no doubt that the victims have suffered psychological harm. They are entitled to restitution. The issue is how to quantify that harm and whether, by comparison, it ought to be attributed to the amount of lost earnings from their association with Mr. Hawke. Mr. Hawke admits that the victims earned money while “working” for him, and that he kept much of it. The Crown has outlined the following sums for restitution consideration, as a direct calculus of lost earnings by these complaints as a means of making the sums “readily ascertainable”:
(1) for K.D. - $100,000;
(2) for A.B. - $21,000;
(3) for A.R. - $500;
(4) for A.H. - $320;
(5) for A.S. - $2,000;
(6) for B.S. - $15,000; and
(7) for R.R. - $2,300.
138A number of authorities appear to adopt the Crown’s approach at ascertaining appropriate compensatory restitution, namely that a correlation can be made to a victim’s lost earnings in cases of sexualized human trafficking, including:
(1) in Swaby,46 where Justice Goldstein made a $30K order, split between two victims;
(2) in R v Koehler,47 where Justice Goldstein made a $3K order;
(3) in R v Dak,48 where Justice Kennedy made a $48K order;
(4) in R v M.E.D.,49 where Justice Kelly made a $10K order; and
(5) in R v Campbell, where Justice Nightingale made a $7,500 order.
139None of these decisions, however, address the policy considerations behind making restitution orders premised upon compensation for lost earnings made in the course of receiving proceedings of crime. In the prostitution context, Bill C-36, the PCEPA, criminalized the purchase of sexual services. While it did not criminalize the sale of sexual services and provides immunity for those aiding and abetting that offence in relation to their own sexual services, the funds are received in association to illegal activity. To be clear, Bill C-36 clearly does not condone the sale of sexual services so, by implication, should the Criminal Code restitution regime be seen to compensate for it? What are the policy complications that result?
140Looking at the purposes of both the human trafficking and prostitution related legislative regimes in totality, I am forced to conclude that there is no inconsistency between deterring such exploitative activity (both literally and figuratively) and compensating victims for the associated harms done, even if that means quantifying compensation based upon lost earnings. First, the asymmetrical approach adopted by our criminal prostitution regime was intentional. Parliament sought to eradicate prostitution as much as possible without further harming those most vulnerable and caught within its grasp. It expressly allowed for those who sell sexual services to be able to obtain, through immunity, to obtain a material benefit. Given an opportunity to refashion the legal approach to prostitution, no restriction against requests for restitution associated to it was made. Second, other remedies in law have been crafted with the very goal of compensating victims of human trafficking. For example, in Ontario Part II of the Prevention of and Remedies for Human Trafficking Act, 2017,50 created the tort of human trafficking which permits a victim to bring a civil action against their trafficker(s). Specifically, in section 17(1)(b) the court can order a defendant to account to the plaintiff for any profits that have been accrued to the defendant as a result of human trafficking. This tort of human trafficking clearly associates the lost earnings to legitimate and attenable damages.
141As a result, I am content that these victims have been harmed and that compensating them through the Criminal Code’s restitution regime is appropriate, even where ascertaining their loss is directly associated with the proceedings of criminal activity, or the purchase of sexual services.
142Both the Crown and the defence have satisfied themselves, on this evidentiary record, that the loss associated to each of these victims, as noted above, is readily ascertainable by virtual to Mr. Hawke’s profits from the sale of their sexual services. A restitution award of reflecting the total loss of $141,120 will be endorsed. Because Mr. Hawke has secured $40K to be attributed to this claim, a total restitution order of $92,855 is awarded. Following the agreed upon distribution suggestion of the parties, the restitution orders are as follows:
(1) to K.D. - $84K, with an additional $16K paid immediately;
(2) for A.R. - $500, to be paid immediately;
(3) for A.H. - $320, to be paid immediately;
(4) for A.S. - $1K, with an additional $1K to be paid immediately;
(5) for B.S. - $7, 855, with an additional $7,145 paid immediately; and
(6) for R.R. - $2,300, to be paid immediately.
143As suggested and to be directed by the Crown, a s. 490(9) forfeiture order is granted to permit the reallocation of the $8,265 in cash seized from Ms. Hawke’s residence to A.B. in satisfaction of her restitution claim.
144The remaining $92,855 restitution award will be paid by Mr. Hawke in yearly installments of $6,632.50 for a period of 14 years and distributed proportionately to the above noted quantum, commencing upon his release from custody.
Fine in lieu of forfeiture
145Designed to ensure that “crime does not pay”, this Criminal Code relief permits recovery of the proceeds of the human trafficking and prostitution related offences which have been spent or are otherwise rendered unrecoverable.
146Consistent with the above restitution award reasoning, and unopposed by Mr. Hawke, to motivate compliance and victim compensation, a fine in lieu of forfeiture in the amount of $92,855 is made, payable within 10 years after his release from incarceration, pursuant to s. 462.37(3) of the Criminal Code. Pursuant to s. 462.37(4)(iv), a consecutive period of imprisonment of 18 months will be available upon fine payment default.
Conclusion
147In sum, recognizing the predominate sentencing principles of deterrence and denunciation, Mr. Hawke is sentenced to 24 ½ years incarceration, which is reduced to 15 ½ years incarceration for totality purposes and, when his enhanced pre-sentence custody is deduced, his remaining time to serve is just over 10 years.
148As noted, by way of ancillary orders, he will be required to pay further restitution amounting to over $92K with an associated fine in lieu of restitution order made, a DNA, a SOIRA, a weapons prohibition and non-communication orders with the identified victims.
M. B. Carnegie
Released: April 11, 2025
“ADDENDUM – SOIRA Order further particulars”
1Further to paragraph 148 of the above reasons, through inadvertence I failed to address my reasoning and the duration of the intended uncontested Sex Offender Information Registration Act (SOIRA) order. When raised, I advised counsel that I would include my intended reasoning in with the written release of my reasons delivered on April 11, 2025.
2Mr. Hawke has been convicted of multiple counts of human trafficking, procuring prostitution, receiving a material benefit from prostitution, distribution of intimate imagery, amongst other offences.
3In 2022, the Supreme Court in R v Ndhlovu51 ruled that the provision mandating registration for all offenders convicted of designated offences violated s. 7 of the Charter which could not be saved under s. 1. Only the s. 490.012 finding applies here. The Supreme Court found this measure overbroad: “To the extent that [it] require[s] the registration, sometimes for life, of offenders who demonstrate no increased risk of reoffending, [it] threaten[s] the liberty interests of offenders in a manner that is overbroad and violates s. 7 of the Charter.”52 Though this mandatory imposition for designated offences was determined to be unconstitutional, the declaration of invalidity was suspended for 12 months to provide Parliament sufficient time to remedy the provision’s overbreadth.
4Parliament remedied this SOIRA constitutional invalidity through Bill S-12 which came into force on October 26, 2023. Mandatory registration is now much more limited, and here, where a sentence is imposed for a designated offence, an order requiring registration must be made under s. 490.012(3) unless the offender establishes that: (1) there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature, or (2) the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest of protecting society through the effective prevention or investigation of crimes of a sexual nature. Factors that must be considered in this determination are enumerated in s. 490.012(4), including: the nature and seriousness of the designated offence, the victim’s age and other personal characteristics, the nature and circumstances of the relationship between the person and the victim, the personal characteristics and circumstances of the person, the person’s criminal history, the opinions of experts who have examined the person, and any other relevant factors.
5Here, Mr. Hawke has been found to have committed a designated offence in subsection 490.011(1) – namely, distributing intimate images without consent under s. 162.1 which is designated a “primary offence”, and multiple offences of human trafficking (s. 279.01), procuring prostitution (s. 286.3(1), and obtaining a material benefit from prostitution (s. 286.2) which are “secondary” designated offences.
6Under s. 490.012(1), if a designated offence is prosecuted by indictment, results in a sentence of two or more years, and the victim(s) of the designated offence is under the age of 18 years, a SOIRA order is mandated. Section 490.012(2) allows for a SOIRA order if the person convicted has previously been convicted of a primary offence or under an order to comply with SIORA at the time of the offence [neither apply here]. Further, section 490.012(3), where subsections (1) and (2) don’t apply, allows for a discretionary SOIRA order subject to the above referenced factors.
7If any of s. 490.012(1)-(3) applies, and the offender has been convicted of two or more designated offences, and “the court is satisfied that those offences demonstrate, or form part of, a pattern of behaviour showing that the person presents an increased risk of reoffending by committing a crime of a sexual nature,” the duration of the SOIRA order will be for life, pursuant to s. 490.013(3).
8Here, the Crown submits that s. 490.012(1) applies which contributes to a lifetime SOIRA order. I disagree. While Mr. Hawke certainly has been convicted of a designated offence prosecuted by Indictment which has garnered a sentence of two or more years (here, for each of the s. 162.1 and 279.01 matters), the Crown has not proved that the victim(s) for any of these matters were under the age of 18 years. I say this, acknowledging that for a period of time a few of the victims were, as suggested by the Agreed Statement of Facts, apparently under 18 years, but the offending conduct transcended this age barrier. The Crown did not proceed, for example, with s. 279.011 offences, identifying a particular victim(s) as being under the age of 18 years. Therefore, no such finding was required. I will not, simply for the purposes of a SOIRA duration assessment, engage in fact-finding on this limited evidentiary record and thereby classify a victim(s) as definitely under the age of 18 years relative to these offences as not dates were particularized with respect to the prostitution related activity beyond generalized timeframes and victim(s) ages. Had I been firm in this regard, it would have been a significant aggravating feature of sentencing overall – which it was not. By proceeding on the basis of s. 279.01 alone, I am not satisfied that it is proper for the Crown to parse their global timeframe theory for the benefit of an ancillary order assessment.
9However, just because s. 490.012(1) does not apply, that does not mean that a SOIRA order is inappropriate, let alone that a lifetime order is unavailable. As I have found, a SOIRA order is entirely appropriate, and the fact of one was not contested. Mr. Hawke’s presenting offence narrative and circumstances entirely fits within the s. 490.012(3) factors. Mr. Hawke has not satisfied me that in a case of human trafficking such as this, there is no clear connection between making a SOIRA order and assisting police services in preventing and investigating crimes of a sextual nature, and in particular such crimes. Nor has he satisfied me that the public interest in protecting society through effective police efforts, buttressed by registration information for like offenders, significantly outweighs his privacy and liberty interests. These offences were serious, the victim’s where vulnerable and manipulated by a skilled parasitic operator.
10As a result, given the propriety of a SOIRA order under s. 490.012(3), I must now assess its duration. As noted, under s. 490.013(3)(a) more than two designated offences have been subject to conviction in the same proceeding. But, under s. 490.013(3)(b), am satisfied that those offences demonstrate, or form part of a pattern of behaviour showing that the person presents an increased risk of reoffending by committing a crime of a sexual nature? For this consideration, I do not believe I require any expert evidence of risk of recidivism – which is here absent. Instead, looking to the established evidentiary record, and in particular the duration of time, the quantum of victims and the nature of the human trafficking/prostitution operation itself, I am unequivocally satisfied that the Crown has established that these offences, collectively, have demonstrated, or form a part, of a pattern of behaviour establishing an increased risk of reoffending with respecting to crimes of a sexual nature, pursuant to s. 490.013(b).
11As a result of that finding, a SOIRA order is made under s. 490.012(3). Further, pursuant to s. 490.013(3), Mr. Hawke will be required to comply with this order for life.
M. B. Carnegie
Released: April 14, 2025
CITATION: R. v. Hawke, 2025 ONSC 2257
COURT FILE NO.: CR-23-9
DATE: 20250414
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
JORDAN HAWKE
REASONS FOR sentence
M. B. Carnegie, J.
Released: April 14, 2025
Footnotes
- R v Lacasse, 2015 SCC 64 at para 12
- R v Nasogaluak, 2010 SCC 6 at para 42
- Canada (Attorney General) v Bedford, 2013 SCC 72
- Department of Justice Canada, Technical Paper: 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 (Protection of Communities and Exploited Persons Act), 2014 (online: https://.justice.gc.ca/eng/rp-pr/other-autre/protect/protect.pdf), at pages 4-5, 9
- R v N.S., 2022 ONCA 160; leave to appeal refused, [2022] SCCA No 281
- Canadian Alliance for Sex Work Law Reform v Attorney General, 2023 ONSC 5197 at para 200
- Ibid at para 204
- R v Miller, [1997] O.J. No. 3911
- R v Antone, 2020 ONSC 181 at para. 29
- Christi Dabu, “Human trafficking has been on the rise in Canada over the past decade. Here’s what Statistics Canada discovered” (November 1, 2024) CTV News
- Brent Lale, “Stop buying our kids: London police looking to increase capacity of Human Trafficking Unit” (October 29, 2024) CTV News London
- R. v Lopez, 2018 ONSC 4749 at para 53
- R v Bissonnette, 2022 SCC 23 at paras 46-47
- Lopez, supra at para 53
- R v S.M., 2023 ONCA 417 at para 28
- R v McEwan, 2023 ONSC 1608 at para 80
- R v Downey, 2023 ONSC 3776
- R v M.E.D., 2022 ONSC 1899
- R v Greaves, 2023 ONSC 5474
- R v Salmon, 2019 ONSC 1574
- R v Jordan, 2019 ONCA 607
- R v Eftekhar, 2020 ONSC 1386
- R v Mascoe, 2020, ONCA 706
- R. v. J.G., 2021 ONSC 1095
- Ibid at para 47
- R v Kanyanga, 2023 ONSC 3426
- R v Williams, 2023 ONSC 4648
- R v Deidun, 2022 ONSC 3014
- R v McPherson, 2013 ONSC 1635
- Lopez, supra at 53
- R v Jackson, 2018 ONSC 2527 at para 40
- R v Hamilton, 2004 CanLII 5549 (ON CA), [2004] OJ No 3252 (CA) at para 133
- Ibid at para 134
- Jackson, supra at para 115
- R v Morris, 2021 ONCA 680
- R v Patten, 2024 ONSC 1737 para 74
- R v Gabriel, 2017 NSSC 90 at para 54
- R v Brown, 2025 ONCA 164 at para 4
- R v Duncan, 2016 ONCA 754
- R v Marshall, 2021 ONCA 344 at para 53
- Ibid at para 53
- R v Friesen, 2020 SCC 9 at para 155
- R v Bertrand Marchand, 2023 SCC 26 at para 99
- R v Summers, 2014 SCC 26
- R v Swaby, 2024 ONSC 6442 at para 54
- Ibid at para 61
- R v Koehler, 2024 ONSC 6442
- R v Dak (unreported decision of Justice Kennedy of the OCJ in Kitchener, December 12, 2023)
- R v M.E.D., 2022 ONSC 1899
- SO 2017, c 12, Sched 2 – section 17(1)
- R v Ndhlovu, 2022 SCC 38
- Ibid at para 10