Court File and Parties

Court File No.: CR-23-40000080 Date: 2025-11-04 Ontario Superior Court of Justice

Between: His Majesty the King – and – Nicholas Shamar Bryan, Defendant

Counsel:

• Monica Gharabaway, for the Crown
• Sareena Sanghera, for the Defendant

Heard: October 2, 2025

Publication Ban

Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada.

Reasons for Sentence

Nishikawa J.

Overview

[1] After a trial by judge and jury, on June 13, 2025, the jury found Mr. Bryan guilty of the following offences:

(a) Recruiting, transporting, transferring, receiving, holding, concealing or harbouring a person, or exercising control, direction or influence over the movements of a person, for the purpose of exploiting or facilitating the exploitation of that person, contrary to s. 279.01(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the "Code");

(b) Receiving a financial or other material benefit, knowing that it was obtained by commission of an offence under s. 279.01(1), contrary to s. 279.02(1) of the Code; and

(c) Possession of proceeds of property or a thing, knowing that all or part of the said proceeds had been obtained by an offence punishable by indictment, contrary to s. 354(1)(a) of the Code.

[2] The jury found Mr. Bryan not guilty of the offence of possession of cocaine for the purposes of trafficking. The Crown withdrew the charge of assault. The jury was unable to reach a verdict on the charge of sexual assault and a mistrial was declared on that count.

The Circumstances of the Offence

[3] After a jury renders a guilty verdict, the sentencing judge must decide the facts upon which the offender is to be sentenced: Code, s. 724(2). I need not arrive at a complete theory of the facts but must make those factual determinations necessary for the appropriate sentence: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 98, at para. 16; R. v. Aragon, 2022 ONCA 244, 413 C.C.C. (3d) 79, at paras. 104-106.

[4] As sentencing judge, I am bound by the express and implied factual implications of the jury's verdict. I must accept as proven all facts, express or implied, that are essential to the jury's finding of guilt. On the other hand, I must not accept any facts that are only consistent with a verdict that the jury rejected: Ferguson, at paras. 17-18.

[5] Where the factual implications of the jury's verdict are ambiguous, I must come to my own independent determination of the relevant facts consistent with the jury's verdict: Ferguson, at paras. 17-18. I am not required to assume that the jury took "the most lenient path to conviction": R. v. Nelson, 2014 ONCA 853, 325 O.A.C. 381, at para. 56. However, to rely upon an aggravating factor, I must be convinced of the existence of the fact beyond a reasonable doubt.

[6] The evidence is that Mr. Bryan and the complainant, A.A.P., met over Tinder in the winter of 2020. A.A.P., who was 23 years old at the time, had been living in a shelter in downtown Toronto. Mr. Bryan suggested that A.A.P. leave the shelter to live with him. They eventually moved to an apartment in Mississauga. At that time, Mr. Bryan suggested to A.A.P. that she do "out-calls" which meant going to hotels or someone's residence to provide sexual services. Mr. Bryan drove A.A.P. to the out-calls.

[7] At Mr. Bryan's direction, A.A.P. posted advertisements for her services on "Leolist" using fake names and advertising her services in a variety of areas outside of Toronto. There were 236 advertisements posted to Leolist advertising A.A.P.'s sexual services during the time she was with Mr. Bryan.

[8] A.A.P. eventually transitioned to doing "in-calls" where clients would come to her in hotel rooms because Mr. Bryan explained that this would be more profitable. Mr. Bryan drove A.A.P. in his vehicle to various hotels in Toronto, Mississauga, Oshawa, Brantford, Niagara and Peterborough that he had booked.

[9] The evidence included documents showing that Mr. Bryan booked a room at a hotel in Mississauga from March 31 to April 2, 2021, and a hotel in Oshawa from June 1 to 8, 2021. Surveillance video from another hotel showed Mr. Bryan checking into a hotel while A.A.P. waited in the Subaru. While A.A.P. was staying at a hotel, Mr. Bryan came to collect the money that A.A.P. earned from her sexual services and to bring her supplies such as condoms.

[10] Initially, A.A.P. was able to keep the money she earned from sex work. A month or so after she began selling sexual services, Mr. Bryan required that she had to turn all of the money over to him. He established a "quota" of $1,000 per day and there would be an "argument" if she failed to meet the quota. A.A.P. testified that at some point she was working seven days a week and sleeping only two to three hours a night.

[11] A.A.P. testified that Mr. Bryan would become upset when she refused to do something. A.A.P. had to ask Mr. Bryan for money for food, and he would often tell her she just ate.

[12] A.A.P. testified that although she had her own cell phone and Mr. Bryan left her alone in hotel rooms for hours at a time, she felt she could not leave because Mr. Bryan was "mentally manipulative." She was ashamed to tell her family or the police about her situation.

[13] Based on the jury's verdict, it is clear that they found that Mr. Bryan transported, transferred, or exercised direction or control over A.A.P. for the purposes of exploiting her. The jury also found Mr. Bryan guilty of receiving a financial or material benefit knowing that it was obtained by commission of the offence of human trafficking. The evidence demonstrated that A.A.P. charged $200 per hour, with additional amounts for additional services. She estimated that she made close to $50,000 during the time period she was working for Mr. Bryan.

[14] Based on the verdict, the jury was satisfied beyond a reasonable doubt that Mr. Bryan was in possession of proceeds of crime. A.A.P. had testified to purchases that Mr. Bryan made with the money she earned from sex work, including a vehicle and jewellery. Mr. Bryan purchased a 2019 Subaru BRZ during the time period when A.A.P. was being trafficked, which A.A.P. testified was paid partially by her and partially by Mr. Bryan.

[15] Mr. Bryan also purchased a Rolex watch and other items of jewelry with A.A.P. Mr. Bryan purchased the Rolex watch and YPC chain with large amounts of cash and in A.A.P.'s presence, as depicted in photographs. There was an absence of evidence as to the provenance of other items seized by police, specifically, an emerald-like pendant and a diamond ring.[1]

[16] The Crown withdrew the charge for assault and the jury was unable to reach a verdict on the sexual assault charge. In determining the appropriate sentence, I place no reliance on the allegations or A.A.P.'s evidence in respect of those incidents.

The Circumstances of the Offender

Criminal Record

[17] Mr. Bryan was approximately 26 years old at the time of the offences. He has one conviction for a failure to comply, which post-dates the offences at issue in this case.

The Pre-Sentence Report

[18] A pre-sentence report ("PSR") was ordered and was completed on July 29, 2025, by Probation and Parole Officer Veena Sharma (the "Officer"). The Officer interviewed Mr. Bryan; his father, Leroy Anthony Bryan Sr.; his mother, Gwendolyn Samuels-Epps; his brother, Anthony Leroy Bryan Jr.; his girlfriend, Hanna Cook; his ex-girlfriend, Dalia Hajjar; and the officer-in-charge, Gregory Vandekerchove.

[19] Mr. Bryan was born in Kingston, Jamaica, and moved to Brampton, Ontario at the age of seven. Around that time, his mother relocated to Baltimore, and Mr. Bryan and his four brothers were raised by their father. Mr. Bryan lived with his father until the age of 22. His parents were financially stable, and his father was a successful businessman in Jamaica. Mr. Bryan visited his mother frequently in Baltimore.

[20] Mr. Bryan initially reported not experiencing racism in Canada. However, during a third interview with the Officer, he recalled an incident of police racial profiling in high school when police accused him of stealing a cell phone, which turned out to be a case of mistaken identity. He otherwise lived a stable life and had no legal issues in his youth. Mr. Bryan completed high school despite some suspensions.

[21] Mr. Bryan's parents describe him as having suffered mental health issues as a child, being angry and exhibiting "crazy behaviour". Family members described Mr. Bryan as being "mentally slow" and emotionally troubled. A treatment plan made when he was a child was not followed. Mr. Bryan's father describes him as a "working guy" who tries to do good but sometimes associates with bad company and is easily manipulated. His brother described him as a "peaceful guy" with serious mental health issues.

[22] Hanna Cook, who has been dating Mr. Bryan since November 2024, described him as quiet and shy, and did not see any issues with him. Prior to Ms. Cook, Mr. Bryan was in a relationship with Dalia Hajjar. They separated due to his legal issues and are now friends. Ms. Hajjar described Mr. Bryan as nice and caring but also stated that he could "blank out" for periods of time and be violent, including punching walls and throwing things. Ms. Hajjar attributed Mr. Bryan's behaviour to unresolved trauma. In the third interview, Mr. Bryan reported dating someone new. It was not clear whether this was Ms. Cook or a third individual.

[23] A.A.P. declined to be interviewed for the PSR but expressed the view that Mr. Bryan is mentally unstable and violent. She denied that they were ever in a relationship and stated that Mr. Bryan was only ever her pimp.

[24] Mr. Bryan reported not engaging in substance use; however, collateral contacts reported that he occasionally uses marijuana and consumes alcohol. Ms. Hajjar stated that he has a problematic pattern of marijuana use.

[25] The PSR describes a couple of traumatic incidents that Mr. Bryan experienced. In 2006, during an invasion of their family home, his brother accidentally shot his father in the leg while they wrestled with the intruder. In April 2022,[2] his fourth brother died from gun violence in Brampton. Mr. Bryan has had emotional difficulties since his brother's death. He also described the loss of his grandmother, with whom he had a close relationship, as a difficult time.

[26] In the PSR, the Officer noted that Mr. Bryan exhibited behaviours such as failing to make eye contact, closing his eyes, delayed responses or not responding at all, which she believed were signs of trauma and confusion. Two further interviews were required to obtain sufficient information for the PSR.

[27] Mr. Bryan's employment history includes being a delivery driver and various construction jobs. He stated that he has completion certificates for the Changing Habits and Problem Solving programs. He writes his thoughts and feelings, as well as music, to manage his stress and emotions. Mr. Bryan grew up without religion but started practicing the Quran in custody.

[28] Family members professed their belief that Mr. Bryan is innocent of the offences. His father expressed his view that Mr. Bryan was unfit to stand trial.

[29] In the PSR, Mr. Bryan denied guilt for the offences and stated he was "set up" after a brief romantic involvement with the victim. He claimed that he felt sympathetic toward her and rented apartments and hotels out of concern for her well-being. Mr. Bryan alleged that she reported him after they broke up. According to Detective Vandekerchove, after Mr. Bryan's arrest, he continued to contact A.A.P. At the sentencing hearing, Mr. Bryan stated that he did not wish to take advantage of A.A.P. mentally, physically or emotionally and that he sincerely apologized to her and to the court.

Victim Impact Statement

[30] In her victim impact statement ("VIS"), A.A.P. states that when she met Mr. Bryan, she was "vulnerable and broken." Mr. Bryan appeared to care and want to help her but instead took advantage of her vulnerability for his own gain.

[31] In her VIS and at trial, A.A.P. stated that Mr. Bryan made her feel like she was not human. Having to work in dangerous and degrading conditions and beg for food caused her to lose her pride, voice, sense of self and sense of worth. She states she lives with the weight of the trauma every day but is trying to heal.

[32] In her VIS, A.A.P. states that Mr. Bryan's text message, that he only needed A.A.P. "for three years" made her feel like a product, that she did not matter beyond what he could take from her.

Analysis

The Parties' Positions

[33] The Crown seeks a global sentence of eight years in the penitentiary, which consists of eight years for the offence of human trafficking, four years for receiving a material benefit from human trafficking, and two years for possession of proceeds of crime, to be served concurrently.

[34] The defence submits that the appropriate sentence is 3.5 years on the offence of human trafficking, 1.5 years for the offence of receiving a material benefit from human trafficking, and six months for possession of proceeds of crime, to be served concurrently.

The Principles of Sentencing

General

[35] In determining an appropriate sentence, I must consider the sentencing objectives in s. 718 of the Code, which provides as follows:

718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[36] Pursuant to s. 718.1 of the Code, "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence and the blameworthiness of the offender: R. v. M.(C.A.), [1996] 1 S.C.R. 500, at para. 40.

[37] The sentencing judge must also have regard to the following:

• any aggravating and mitigating factors, including those listed in s. 718.2(a)(i) to (vii) of the Code;
• the principle of parity, in that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b));
• the principle of totality, meaning that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and
• the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).

[38] The principles of parity and individualization mandate that a sentence must both be similar to sentences imposed on similar offenders for similar offences and highly individualized: s. 718.2(b); R. v. Parranto, [2021], 2021 SCC 46, 3 S.C.R. 366, at para. 12.

Human Trafficking

[39] The offence of human trafficking under s. 279.01 of the Code criminalizes a wide range of intentional conduct that has as its purpose the exploitation of vulnerable persons: R. v. A.A., 2015 ONCA 558, at para. 88. In R. v. Lopez, 2018 ONSC 4749, at para. 52, K.L. Campbell J. highlighted that human trafficking involves the "exploitation, degradation and subordination of women" by pimps who live parasitically off their earnings.

[40] The seriousness of the offence of human trafficking is reflected in the maximum punishment available under the Code, which is 14 years. In sentencing offenders for offences involving human trafficking, the paramount sentencing considerations are denunciation and deterrence.

The Appropriate Range

[41] The Crown relies on a number of cases to support its position that an eight-year sentence is appropriate. The most relevant cases are the following:

• R. v. Bedi, 2024 ONSC 5320, in which Dunphy J. sentenced the defendant to a global sentence of 10 years minus time-served. The victim was the defendant's intimate partner and the trafficking continued for a period of over 10 months.

• R. v. Augustin, 2022 ONSC 5901, where Chozik J. sentenced each accused to eight years. The victim was 22 years old and was trafficked for approximately two months. She was forced to see clients when she was not feeling well and did not receive any of the earnings.

• R. v. S.L., 2024 ONSC 2263, in which the defendant was convicted of human trafficking, receiving a material benefit, assault and trafficking cocaine. Pinto J. imposed a global sentence of nine years. The defendant trafficked his spouse for two years, although the exploitative conduct was found to have extended over five years.

• R. v. S.M., 2023 ONCA 417, in which the Court of Appeal upheld the sentence of 5.5 years, finding that it is at lower range for human trafficking offences.

• R. v. Dak, Ontario Court of Justice, 12 December 2023, Court File No. 4411-998-22-44105386 (unreported), in which Kennedy J. sentenced a youthful, first-time offender to 5.5 years for the offence of human trafficking. The duration of trafficking was approximately nine months.

[42] The defence relies on the following cases to support its position that a sentence of 3.5 years is appropriate:

• R. v. Crawford, 2025 ONSC 345, in which the 34-year-old defendant was convicted of trafficking a person, material benefit from human trafficking, procuring the sale of sex, and advertising sexual services. The victim was a vulnerable, 24-year-old Indigenous woman who had been living in a shelter. She was trafficked over a period of three weeks. Mirza J. sentenced the defendant to a global sentence of four years.

• R. v. Horton, 2025 ONSC 4882, the defendant was found guilty of eleven criminal offences relating to human trafficking of two victims, one of whom was under the age of 18. The defendant was the female lead of a small sex trade scheme, recruiting and grooming young women. The trafficking K.L. Campbell J. sentenced the defendant, who had no criminal record, to a global sentence of eight years, which included two consecutive sentences of 3.5 years in relation to each victim.

• R. v. Gordon, 2023 ONSC 1036, in which the 26-year-old defendant pleaded guilty to the offences of trafficking a person, receiving a financial benefit, pointing a firearm, assault causing bodily harm, and unlawful confinement. The trafficking took place over a period of three months and the victim was 20 years old. The defendant had an extensive criminal record. Goldstein J. sentenced the defendant to a global sentence of seven years. (new trial after appeal)

• R. v. Greaves, 2023 ONSC 5474, where the 22-year-old defendant was convicted of receiving a material benefit in relation to two victims, one of whom was under the age of 18. He pleaded guilty to one set of charges. One victim was trafficked for 12 days and the other was trafficked for four days. There were no allegations of threats or violence. The defendant expressed remorse and his rehabilitative prospects were found to be good. Charney J. sentenced the defendant to a global sentence of four years.

• R. v. Barreau, 2024 ONCJ 522, in which Silverstein J. sentenced a first-time offender to 42 months. The trafficking was for a period of one month.

[43] The range in human trafficking cases varies to a great degree based on a broad range of factors including, among others, the number of victims and their age, along with any special vulnerability; the working conditions in which the victim was expected to operate; the degree of planning and sophistication of the trafficking operation; the duration of the exploitative conduct; and the degree of coercion and control exercised by the accused person: R. v. Lopez, 2018 ONSC 4749, at para. 53.

[44] In R. v. McEwan, 2023 ONSC 1608, at para. 80, DiLuca J. considered a number of sentencing decisions and found the range to be from four to eight years, "with a cluster of cases between five and six years." Cases in which a sentence of more than eight years was imposed involve facts that are particularly egregious or brutal, continued over years, involved complete domination and control of the victim, used physical or sexual violence, or there were multiple victims: Crawford at para. 88.

The Principles Applied

Aggravating Factors

[45] Section 718.2(a) of the Code identifies circumstances that are to be considered aggravating. In this case, a relevant aggravating factor is that the offence had a significant impact on the victim, considering her age and other personal circumstances, including her health and financial situation: Code, s. 718.2(a)(iii.1). In determining the appropriate sentence, I take into account that A.A.P. is a young, vulnerable Indigenous woman. She was living in a shelter and did not have stable housing when she met Mr. Bryan. A.A.P. had Crohn's disease and Mr. Bryan required her to work even when she was unwell and when she was on her period.

[46] Mr. Bryan exploited A.A.P.'s vulnerability, requiring her to work in uncomfortable and dangerous situations without regard to her health or safety. He controlled her access to money and food. He made A.A.P. feel like a commodity. In addition, A.A.P. attempted to leave on a couple of occasions, however, Mr. Bryan ran after her and brought her back. The experience has had a profound impact on A.A.P., making her feel less than human and resulting in ongoing trauma.

Mitigating Factors

[47] Prior to the commission of this offence, Mr. Bryan had no criminal record. In 2024, Mr. Bryan was convicted for a failure to comply.

[48] In the PSR, Mr. Bryan expressed the belief that he was "set up" and was the victim of an unfair process. Mr. Bryan's continued denial of the conduct at issue and the harm to A.A.P. is relevant to his rehabilitative potential. His refusal or inability to accept responsibility for the offences committed or for the harm he caused to A.A.P. means that he lacks insight about how or why he engaged in such harmful, unlawful activity and the consequences of his actions on others. Although Mr. Bryan has a supportive family, his family members also expressed the view that he is innocent and that it is he who was taken advantage of.

[49] At the sentencing hearing, Mr. Bryan stated that he sincerely apologizes to A.A.P. and that he did not intend to take advantage of her physically, mentally, or emotionally. Although he has not accepted responsibility for his actions or the harm caused to A.A.P., I accept Mr. Bryan's statement as an expression of some remorse and is somewhat mitigating. I further note that a lack of remorse is not an aggravating factor but the absence of a mitigating factor.

[50] In my view, there is a moderate risk of Mr. Bryan reoffending. He has some rehabilitative potential, based on his lack of a criminal record and his employment history. Mr. Bryan completed secondary school. He was employed in 2023 as a delivery driver for one year before being laid off. He had previously worked in home renovation as a carpenter, framer, and general labourer. In custody, he has participated in programs such as Changing Habits and Problem Solving. Mr. Bryan manages his emotions by writing music. He has indicated that he is willing to seek help through counselling or a formal diagnosis.

[51] There is a lack of evidence as to whether Mr. Bryan has any learning or mental health disabilities. Both his mother and father stated that Mr. Bryan had mental health issues as a child and that he was "slow" but were not able to provide any diagnosis. I am unable to take any mental health concerns into account as a mitigating factor.

[52] The defence has not identified any collateral consequences that would arise from a lengthy period of incarceration.

[53] In terms of systemic factors, in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 102, the Court of Appeal confirmed that the social context relating to the offender's life experiences may be used if it is relevant to mitigate the offender's degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing. If past hardship, including the impact of anti-Black racism, is connected to the criminal activity, that is a relevant mitigating factor to be taken into account. While a direct causal link is not required, there must be some connection between the overt and systemic racism identified in the community and the circumstances that are said to explain or mitigate the criminal conduct in issue: Morris, at paras. 96-97.

[54] Mr. Bryan reported one incident of racial profiling while he was in high school. He lost a brother to gun violence, a traumatic event that has had a lasting emotional impact on him. Mr. Bryan was very young when his family was victim to a home invasion, which resulted in his brother mistakenly shooting their father in the leg. The loss of his grandmother while he was in high school and the loss of his brother had a significant impact on him. These events caused significant hardship to Mr. Bryan, in addition to learning or mental health issues that have gone unaddressed. Mr. Bryan's reference to writing and music demonstrate that he has made some attempt to address these issues on his own.

[55] Unfortunately, the PSR does not provide any insight into the impact of anti-Black racism on Mr. Bryan or the potential connection between his experiences with systemic racism and the offences at issue in this case and the defence provided no additional information that would assist the court. As a result, I am not able to find a connection between systemic racism and the circumstances of the offence at issue in this case.

Summary of the Application of the Sentencing Principles

[56] As stated earlier in these reasons, in sentencing Mr. Bryan, I am required to give primary consideration to the objectives of denunciation and deterrence.

[57] In this case, Mr. Bryan's trafficking operation was unsophisticated. It involved A.A.P. and himself and continued for a period of two months. Mr. Bryan used his own name and credit card to book hotels. A.A.P. was not significantly younger than Mr. Bryan, and they were not in an intimate relationship. The degree of coercion and control, while present, was not at the highest level in that it did not involve threats or violence.

[58] At the same time, because the offence involves the exploitation of a vulnerable person, the degree of moral blameworthiness is high. Despite A.A.P.'s expressed desire to leave the situation, he would not let her leave. The evidence at trial was that Mr. Bryan indicated a desire to live from the sale of A.A.P.'s sexual services for another three years. The defence proposal of a sentence of 3.5 years is not proportionate to the seriousness of the offence and the impact on A.A.P.

[59] Further, in my view, the PSR does not provide a basis to find that Mr. Bryan's lived experiences as a Black man mitigate his moral blameworthiness for the criminal conduct. However, given Mr. Bryan's age and limited criminal record, rehabilitation should also be an important sentencing objective in the circumstances: see Morris, at paras. 80-81.

[60] Based on all of the circumstances, taking into consideration the gravamen of the offence, as well as the aggravating and mitigating factors detailed above, and applying the principles of totality and restraint, I find that an appropriate global sentence is five years. I apportion the five years as follows: five years for the offence of human trafficking, 3 years for the offence of receiving a material or financial benefit from human trafficking, and 1.5 years for the offence of possession of proceeds of crime, to be served concurrently.

Summers Credit

[61] Under s. 719(3.1) of the Criminal Code, Mr. Bryan is entitled to credit for pre-sentence custody at a rate of 1.5:1: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575.

[62] Mr. Bryan was in custody for a total of 307 days to today's date. The total Summers credit is therefore 461 days (307 x 1.5).

Downes Credit

[63] The defence also seeks credit for the period during which Mr. Bryan was under house arrest bail. Mr. Bryan was on house arrest bail without access to a mobile phone for a total of 1,171 days. The defence seeks 0.25 days for each day of house arrest, for a total credit of 292.75 days.

[64] The Crown's position is that being on bail will always involve a measure of interference with a person's liberty interests: see R. v. Bullens, 2021 ONCA 421, at para. 4. The Crown notes that there is an absence of evidence as to the impact of the bail conditions on Mr. Bryan.

[65] The Court of Appeal has held that it is an "error in principle" for a trial judge to fail to take into account as a mitigating circumstance in sentencing time spent under stringent bail conditions, especially house arrest: R. v. Downes (2006), 79 O.R. (3d) 321, 208 O.A.C. 324, at para. 33. The determination of enhanced credit is not the product of a formula but is within the discretion of the trial judge.

[66] The criteria to be considered in assessing the weight of the mitigation to be given includes the amount of time spent on bail conditions, the stringency of those conditions, their impact on the offender's liberty and the ability of the offender to carry on normal relationships, employment and activity. The mitigating effect that such considerations have on the sentence to be imposed falls within the discretion of the trial judge.

[67] The onus is on the offender to establish the facts supporting the impact of the conditions on a balance of probabilities in accordance with s. 724(3) of the Criminal Code: R. v. Place, 2020 ONCA 546, at para 20.

[68] In this case, I have not been provided with information as to the stringency of the bail conditions and their impact on Mr. Bryan's ability to conduct his life. The only information I have is that Mr. Bryan was not able to work as a food delivery driver and could not help his father pay the rent.

[69] In addition, the fact that Mr. Bryan did not abide by the conditions diminishes the applicable extent of mitigation: Crawford, at para. 190.

[70] In view of the relevant considerations, including the amount of time Mr. Bryan was on bail, the stringency of the terms and the level of interference with Mr. Bryan's activities, I exercise my discretion to allocate some Downes credit for the time Mr. Bryan spent on bail, although I decline to assign a specific amount to it.

Duncan Consideration

[71] Mitigation can also be given on account of particularly difficult and punitive presentence custody conditions, including extended time spent on lockdown and a lack of access to facilities. In determining whether any enhanced mitigation should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused: R. v. Duncan, 2016 ONCA 754, at paras. 6-7.

[72] The defence submits that Mr. Bryan should be given enhanced credit for a portion of his time in presentence custody because of the harsh conditions in which he was held, including lockdowns and triple-bunking at the Toronto South Detention Centre (TSDC). The records show that there were 81 lockdowns and 87 days of triple-bunking. The defence seeks a credit of 0.5 days for every day of lockdown or triple-bunking, for a total credit of 84 days.

[73] The Crown does not dispute the number of lockdown days but argues that the defence has provided no information as to their actual impact on Mr. Bryan.

[74] In R. v. Marshall, 2021 ONCA 344, at para. 52, the Court of Appeal held that "'Duncan' credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence." The Court of Appeal has stated that quantifying the Duncan credit in the same manner as the "Summers" credit for presentence custody might improperly skew the calculation of the ultimate sentence: Marshall, at para. 53.

[75] The conditions at the TSDC have repeatedly been described by the courts as intolerable, deplorable and excessively harsh. As Molloy J. put it in R. v. Shaikh and Tanoli, 2024 ONSC 774, at para. 15, the question is not whether some credit should be given, but rather the extent of it.

[76] At the same time, there is a lack of information as to the impact that the conditions at the TSDC have had on Mr. Bryan. This is not to suggest that conditions described as "intolerable" have had no impact on him, especially given the mental health concerns raised by his family members, only that I have not been provided with any such details.

[77] I am mindful of Doherty J.A.'s caution in Marshall that the quantification of Duncan credit could improperly skew the calculation of the ultimate sentence, in the sense that it could lead to a sentence that is disproportionately or artificially low. In the circumstances of this case, I find that some Duncan consideration is warranted. However, I decline to assign a specific number of days and will take it into consideration in the overall sentence.

Ancillary Orders

[78] With the exception discussed further below, the defence did not oppose the ancillary orders sought by the Crown.

Restitution

[79] The Crown seeks an order for restitution in the amount of $50,000 pursuant to ss. 462.49(2) and s. 738 of the Code. The Crown seeks forfeiture of certain property seized by the police when Mr. Bryan was arrested, liquidation of the property, and that the proceeds be used to reimburse A.A.P.

[80] To paraphrase s. 738(1)(a) as it would apply in this case, the court may order that the offender make restitution to another person in the case of loss of property as a result of the commission of the offence by paying to the person an amount not exceeding the replacement value of the property, where the amount is readily ascertainable.

[81] Where the court finds it appropriate to make a restitution order under s. 738, and an order for forfeiture may be made in respect of property that is the same as property in respect of which the order of restitution be made, the court shall first make the order of restitution and shall then consider whether and to what extent an order of forfeiture or an order to pay a fine is appropriate in the circumstances: Code, s. 740.

[82] In determining whether to make an order for restitution, the court must consider an offender's ability to pay: R. v. Wa, 2015 ONCA 117, at para 12. Where particularly egregious, a restitution order may be imposed even if there does not appear to be any likelihood of repayment.

[83] The Crown submits that $50,000 is an appropriate amount of restitution because A.A.P. estimated that she earned approximately that amount while being trafficked by Mr. Bryan.

[84] The defence requested that the court not put a dollar amount on restitution but that A.A.P. should be compensated with the proceeds from the sale of the Rolex and vehicle. The defence requested that the emerald pendant and diamond ring that were seized be returned to Mr. Bryan.

[85] A.A.P. testified that she was initially able to retain the money that she earned from selling sexual services. Mr. Bryan eventually required her to turn over all the money she earned to him. She was not sure when this took place but estimated that it was around one month in. A.A.P. could not state for how many months this continued. The indictment covers the period from May 1, 2021 to July 5, 2021.

[86] Although Mr. Bryan set a "quota" of $1,000 per day, A.A.P. testified that the amount earned depended on the day or time of month. She testified that she frequently earned more than $1,000 in a day but on a couple of occasions earned less.

[87] There was also evidence of items that Mr. Bryan purchased with proceeds from trafficking A.A.P. Among the items seized when Mr. Bryan was arrested were a Rolex watch and YPC necklace. The evidence included photographs of Mr. Bryan and A.A.P. in a jewellery store purchasing those items, as well as receipts for the Rolex ($4,000) and the YPC necklace ($6,650). A.A.P. testified that the Rolex cost over $10,000 and that the receipt was for the watch band. She testified that Mr. Bryan also had diamonds added to the Rolex.

[88] In respect of the 2019 Subaru BRZ that Mr. Bryan purchased during the trafficking period, A.A.P. testified that she paid for "at least half" of the vehicle, which cost approximately $30,000. She also testified that Mr. Bryan had $10,000 of his own money. A.A.P. testified that Mr. Bryan initially purchased the Subaru on a payment plan. However, the dealership discovered that he was not working and required that he advance the full amount.

[89] In my view, the amount that A.A.P. earned and that Mr. Bryan took from her is not readily ascertainable within the meaning of s. 738(1)(a) because the evidence supporting the $50,000 estimate is vague. A.A.P. was not sure how much she earned each day and when she began turning all of the money over to Mr. Bryan. Other than A.A.P.'s testimony, there is no evidence that would assist in ascertaining the total amount.

[90] However, there are amounts that are readily ascertainable: the Rolex watch and enhancements ($14,000), YPC necklace ($6,650), and the Subaru ($15,000), for a total of $35,650. These items were purchased with money that Mr. Bryan took from A.A.P. and that she earned while being trafficked or, in other words, property that she lost as a result of the commission of the offence.

[91] Although other items of jewellery were seized when Mr. Bryan was arrested, there is an absence of evidence as to when Mr. Bryan acquired them and whether they were purchased with proceeds of crime. In relation to other necklaces that Mr. Bryan was wearing in the photographs in evidence, A.A.P. testified that with the exception of the YPC necklace, Mr. Bryan had them when she met him. A.A.P. was not asked about the emerald pendant or diamond ring that were seized when Mr. Bryan was arrested. Because the evidence supports that Mr. Bryan had some of his own savings and other sources of income, there is a lack of evidence to show that the emerald pendant and ring were purchased with proceeds of trafficking A.A.P.

[92] As a result, pursuant to s. 740, Mr. Bryan shall make restitution to A.A.P. in the amount of $35,650. The items of which the Crown seeks forfeiture, with the exception of the emerald pendant and diamond ring, are to be forfeited and the proceeds are to be applied to the restitution order.

Disposition

[93] After subtracting Summers credit, as well as credit for Duncan consideration and Downes credit, the sentence that remains to be served is 41 months, which I apportion as follows: 41 months to the offence of human trafficking, 24 months to the offence of receiving a financial or material benefit from human trafficking and 12 months to the offence of possession of proceeds of crime, all to be served concurrently.

[94] The following ancillary orders shall be made:

(a) Pursuant to s. 740, restitution to A.A.P. in the amount of $35,650;

(b) Pursuant to s. 487.051 of the Code, a DNA order;

(c) Pursuant to s. 490.012(1) and s. 490.013(2)(b) of the Code, an order to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for a period of 20 years from this order;

(d) Pursuant to s. 743.21(1) of the Code, an order not to communicate with A.A.P. for the duration of the sentence;

(e) Pursuant to s. 109 of the Code, a weapons prohibition order for life; and

(f) Pursuant to s. 491 of the Code, an order for forfeiture of certain items seized by police on Mr. Bryan's arrest, with the exception of the emerald pendant and diamond ring.

Nishikawa J.

Released: November 4, 2025

Footnotes

[1] None of the items were appraised or tested for authenticity and were described by witnesses based on their appearance only.

[2] The PSR states both 2002 and 2022. It is unclear from the context which of those dates is correct.