R v PO, 2023 ABKB 656

Court of King’s Bench of Alberta Citation: R v PO, 2023 ABKB 656 Date: 20231122 Docket: 181424706Q1 Registry: Edmonton Between: His Majesty the King Crown - and - PO Accused Corrected judgment: A corrigendum was issued on December 8, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. Corrected judgment: A corrigendum was issued on November 28, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify AB must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________

Reasons for Sentence of the Honourable Mr. Justice S.N. Mandziuk _______________________________________________________ I.

Introduction [ 1 ] The trial of this matter began in September and October of 2019, continued in January, August, and September of 2020, and was completed in January 2021. [1] [ 2 ] On April 21, 2021, PO was convicted of all Criminal Code , RSC 1985, c C-46 , ( the Code ) offences in the 14 count Indictment under which he was charged: Trafficking in persons – s 279.01 – Count 1; Receiving a material benefit from sexual services – s 286.2(1) – Count 2; Procuring – s 286.3(1) – Count 3; Advertising sexual services – s 286.4 – Count 4; Assault with a weapon – s 267(a) – Count 5; Using firearm in commission of offence (uttering threats) – s 85(1)(a) – Count 6; Sexual assault with a weapon – s 272(2)(a) – Count 7; Aggravated Assault – s 268 - Count 8; Sexual Assault – s 271 - Count 9; Possession of a firearm knowing its possession is unauthorized – s 92(1) – Count 10; Possession contrary to order – s 117.01(1) – Count 11; Disobeying order of court – s 127(1) – Counts 12 & 13; and Obstruction of Justice– s 139(2) – Count 14 [ 3 ] The trial decision is reported at R v PO , 2021 ABQB 318 (the Trial Decision ) . [ 4 ] The three sex trade offences (material benefit from sexual services (s 286.2(1), procuring (s 286.3(1), and advertising sexual services (s 286.4)) were withdrawn by the Crown after convictions were entered on the other 11 counts. [ 5 ] I am now called upon to sentence PO with respect to count 1 and counts 5 through 14 inclusive. [ 6 ] There are two Charter challenges raised by the Defence that must also be decided: (

a) PO has challenged the five year mandatory minimum sentence found in s 279.01 of the Code . (

b) PO seeks a 3:1 credit for the time that he has served at the Edmonton Remand Centre ( ERC ), arguing that the conditions of his incarceration “were so egregious” that his s 7 and s 12 Charter rights were violated. II. Positions of the Crown and Defence A. The Crown [ 7 ] The Crown has, in written materials and in oral argument, suggested two approaches to sentencing this offender. [ 8 ] First, the Crown suggests that the human trafficking offence could operate as an “umbrella” offence. That is, it would carry the longest sentence and the other offences would fit under that umbrella.

Some or all of the other offences would run concurrently with the “umbrella” offence. [ 9 ] Alternatively, the Crown suggests a more traditional process whereby the fit and appropriate sentence for each offence is determined side by side with concurrence or consecutiveness. [ 10 ] In both scenarios, the Crown calls for PO to be bound by a lifetime weapons prohibition, a lifetime SOIRA order, a DNA order, and an order prohibiting him from being in contact with AB. [2]

[11] The Crown submits that ss 718.04 and 718.201 of the Code are of particular importance in this case: AB was vulnerable dueto her mental health issues (depression which included suicidal thoughts) and was a member of a vulnerable class (AB was a sex worker).Further, she was in an intimate partner relationship with PO. [12] Based on the facts established at trial, the Crown suggests that denunciation and deterrence should be given primaryconsideration when crafting a sentence. [13] In final oral argument, after the evidence from the sentencing hearing was completed, the Crown’s position was that PO oughtto receive a life sentence on the human trafficking offence, with concurrent sentences for the other offences.

PO’s parole eligibilitywould be set at 7 years from the time of his arrest in 2016. [14] In arguing for a life sentence, the Crown cites R v Boucher, 1991 ABCA 223 where the Court of Appeal noted the followingabout life sentences, at para 18: …Guidance may also be taken from R v Rowland Jack Forester Hodgson (1967) 52 Cr App R 113 where the Court of Appeal (CriminalDivision) concluded: When the following conditions are satisfied, a sentence of life imprisonment is in our opinion justified: (1) where the offence or offencesare in themselves grave enough to require a very long sentence; (2) where it appears from the nature of the offences or from thedefendant's history that he is a person of unstable character likely to commit such offences in the future; and (3) where if the offences arecommitted the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence.

We think thatthese conditions are satisfied in the present case and that they justify an indeterminate life sentence. The Home Secretary has of coursethe power to release the appellant on license when it is thought safe to release him, if that time comes. (114) [15] The Crown further relies on R v Horvath

(1982) CanLII 3838 (ONCA) which refers to three cases where determinatesentences of 12-15 years were overturned on appeal and life sentences imposed instead. In Horvath, the offender appealed his lifesentence following a conviction on a charge of attempted murder. The Court heard evidence from two psychiatrists and one psychologist.One psychiatrist opined that Horvath suffered from a personality disorder, sociopathic type, which made him dangerous to others. Theother psychiatrist felt he could not rule out the existence of an anti-social personality disorder but was unable to say whether Horvath wasdangerous.

The psychologist also testified that Horvath was a deeply disturbed person but did not see him as a dangerous person.

TheCourt of Appeal held that a life sentence was appropriate in the circumstances and dismissed the appeal, specifically noting at para 23:“…[t]he cruelty and callousness which mark the conduct of the appellant, are, fortunately, not frequently encountered, and apartaltogether from the psychiatric evidence, clearly indicate a disturbed and dangerous personality.” [16] The cases referred to in Horvath are: • R v Hill, (ONCA) – the Ontario Court of Appeal increased a 12-year sentence to life imprisonment. Convictionwas for rape of a fourteen-year-old victim.

After raping the victim, Hill stabbed her repeatedly in the face and eyes and around the throatuntil the knife broke, resulting in a possible loss of sight in one eye. Defence called a psychiatrist and psychologist who testified Hillsuffered from a personality disorder and was dangerous to the community. • R v Everingham (unreported, June 30, 1976) – the Court set aside concurrent sentences of 12- and 8-years following convictionson charges of attempted murder and rape and imposed concurrent life sentences.

Everingham pulled the eight-year-old victim into hiscar, drove off with her, raped her, tied a stocking tightly around her neck and threw her nude body into a bush and drove away. The childwas discovered and required surgery to repair injuries suffered. The Court also received psychiatric evidence that the accused wassuffering from a serious mental disorder that made him highly dangerous to others. • R v Marwick, 1977 CarswellOnt 1565 (ONCA) – The Court of Appeal set aside a 15-year sentence for rape and instead sentencedMarwick to life imprisonment.

The Court noted that Marwick tormented, raped, tortured, and mutilated the 16-year-old victim. [17] The Crown seeks a determinate sentence of 22 years if a life sentence is not imposed. The following sentences are proposed,per offence, before totality is considered.

This method of calculation does not treat the human trafficking offence as an umbrella offence: • Count 1 - Human trafficking – 12 years. • Count 5 - Assault with a weapon – 2 years concurrent. • Count 6 - Use of a firearm – 2 years consecutive. • Count 7 – Sexual assault with a firearm -10 years consecutive. • Count 8 – Aggravated assault - 3 years consecutive. • Count 9 – Sexual assault - 4 years consecutive. • Count 10 and 11 – Unauthorized firearm and possession of firearm while prohibited - 1 year consecutive (Crown says this couldbe 3 and 9 months or 12 and 12 months with one concurrent). • Count 12 – Breaches - 1 year consecutive. • Count 13 – Breaches -2 years consecutive. • Count 14 – Obstruction of justice - 6 years consecutive. [18] The total of these offences would result in 41 years incarceration, which the Crown agrees must be reduced for totality.

The

Crown suggests that 22 years incarceration is appropriate in the circumstances, made up of the following sentences: • Count 1 – Human trafficking - 10 years. • Count 7 – Sexual assault with a firearm - 8 years consecutive. • Count 14 – Obstruction of justice - 4 years consecutive. • All other counts concurrent. [ 19 ] The Crown acknowledges that a 22 year sentence is extremely long, particularly for someone with very little history with the justice system; however, they take the position that this sentence is appropriate here because PO offended gravely, seriously, and deliberately over multiple years, and continued to offend even during his time in custody and while on trial.

B. The Defence [ 20 ] The Defence in final oral argument agreed with the general approach that treats the offence of human trafficking as the umbrella offence.

The Defence suggests a global sentence of 12.5 years, before credit for time served. [ 21 ] The Defence takes the position that the umbrella approach allows the Court to meaningfully apply the aggravating and mitigating factors and determine consecutive and concurrent sentences, while avoiding double punishment. [ 22 ] The Defence argues that the sentences for both sexual assault with a firearm, and sexual assault simpliciter ought to run concurrent with the sentence for human trafficking. The sentence for sexual assault simpliciter should run consecutive to the sexual assault with the firearm.

The aggravated assault charge should be consecutive to both sexual assault offences, but all concurrent with the human trafficking sentence. [ 23 ] The Defence proposes the following sentences: • Count 1 - Human trafficking (Count 1) – 5 years. • Count 5 - Assault with a weapon – 6 months concurrent to all other offences. • Count 6 - Use of a firearm – 1 year consecutive to all other counts. • Count 7 - Sexual assault with a firearm – 6 years concurrent to Count 1. • Count 8 - Aggravated assault – 1 year consecutive to Count 7 and Count 9, but concurrent to Count 1. • Count 9 - Sexual assault – 3 years consecutive to Count 7 and Count 8, but concurrent to Count 1. • Count 10 - Unauthorized firearm – 60 days concurrent to Count 5. • Count 11 - Possession of firearm while prohibited – 4 months concurrent to Count 10. • Count 12 – Breaches – 1 year consecutive. • Count 13 – Breaches – 1 year concurrent to Count 12. • Count 14 - Obstruction of justice – 6 months consecutive. [ 24 ] Adding these together results in a sentence of 12.5 years.

The Defence argues that the sentence should be reduced by two years after a last look for totality. PO has six years nine months (at the time of Defence submissions in September 2023) of pretrial custody. Enhanced to 1.5 to 1 time, this is basically 10 years. Taking into account some enhanced credit for COVID conditions in ERC, PO would essentially be in a time served situation. III.

Summary of the Facts [ 25 ] Details regarding the facts, analysis of the trial evidence, my evaluation of AB’s credibility, the application of the law, and my findings are set out in the Trial Decision. [ 26 ] PO met AB in November 2014. They had a complex relationship that was both personal and involved their work together in the sex trade. [ 27 ] Between 2014 and 2016, PO and AB travelled to various locations in Western Canada so that AB could provide sexual services to third parties for money. The provision of sexual services was usually arranged through the Internet.

PO took care of logistical details: travel, accommodations, advertising, and meetings between AB and clients. He received and controlled the money generated from AB’s provision of sexual services. [ 28 ] While they were together, PO behaved violently towards AB and exploited her. [ 29 ] By November 2016, AB decided to end the relationship and filed a complaint with the Edmonton Police Service ( EPS ). She participated in four interviews with EPS personnel. She described her experience with PO. PO subjected AB to considerable brutality at

various times: punching, slapping, kicking, biting, choking, spitting, beating with a belt, smothering with a pillow, pulling hair, andthreatening AB and her family. AB disclosed injuries, some of which were photographed. She described feeling used, scared, andmanipulated by PO. [30] As noted in the Trial Decision, AB’s version of events changed between initial police interviews, to those with EPS, to thePreliminary Hearing, and then during the trial.

The evidence was tangled by the relationship between AB and PO. [31] I found that “[a]ll of the relevant, material and admissible evidence, taken together and viewed holistically, leads to theconclusion that AB was most believable and trustworthy during the four EPS interviews and during ... her final trial testimony ...” (TrialDecision at para 288) and that: ... when AB was less subject to the Accused’s ministrations and influence, and less concerned about preserving her relationship withhim, the more believable she was.

When she had either already decided to end the relationship and was in a safe place to do so (duringthe EPS Interviews) or had serious doubts about the Accused’s intentions or determined that the Accused had not been truthful to her(post-ERC call trial testimony), she was truthful. In the latter situations, she decided to stop protecting him and her forthrightnessincreased. When AB was giving inculpatory evidence, the factual picture that she painted was internally consistent and fit within the whole of theevidence.

Her evidence on these occasions was given with appropriate emotion, willingness, detail, thoughtfulness, and was fair to theAccused… It had veracity. It made sense. (Trial Decision at paras 291-292) IV. Principles of Sentencing [32]

Section 718 of the Code stipulates that the fundamental purpose of sentencing is “to protect society and to contribute, alongwith crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing justsanctions that have one or more” of the objectives set out in ss 718(

a) to (f):

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 acknowledgement of the harm done to victims or to the community. [33] “Sentencing is a highly individualized process” (R v Suter, 2018 SCC 34 at para 4). Sentencing objectives must be carefullyconsidered and balanced with sentencing principles (Suter at para 4). Depending on the facts of the case, a sentencing judge maydetermine that some objectives bear more weight than others (R v Nasogaluak, 2010 SCC 6 at para 43).

The Supreme Court of Canadahas stated that “…[i]n a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitationwill vary according to the nature of the crime and the circumstances of the offender.” (R v Lyons, (SCC), [1987] 2 SCR309 at para 26) [34] In this case the paramount objectives are denunciation, deterrence, and promotion of a sense of responsibility in PO.

Ofcourse, the Court is always mindful of the prospect for rehabilitation, but separating this offender from society for the legally appropriateperiod of time is also an important consideration. [35] Denunciation announces the public’s attitude towards specific conduct, not a specific offender (R v Innes, 2008 ABCA 129 atpara 10). The sentence communicates society’s moral values (R v M(CA), (SCC), [1996] 1 SCR 500 at para 81).

Thesentencing judge must assess denunciation on the facts of a particular case and consider its adverse effects on rehabilitation anddeterrence of the offender (R v Pettigrew, (BCCA) at para 10). [36] Deterrence has two goals: specific deterrence and general deterrence. Specific deterrence is intended to discourage theoffender from reoffending (R v Bissonnette, 2022 SCC 23 at para 47). General deterrence operates to discourage members of the publicfrom engaging in the same criminal activity (Bissonnette at para 47; R v BWP, 2006 SCC 27 at para 2).

When a court advances thisobjective, the offender receives a harsher punishment to deter the public from the criminal act (Bissonnette at para 47).

In R vBates, (ONCA) at para 36, the Ontario Court of Appeal held that deterrence should be weighted more heavily in casesof domestic abuse and criminal harassment. [37] Excessive sentences do not serve the objectives of denunciation and deterrence in any markedly enhanced way (Bissonnette atpara 94). [38] The sentence to be imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender(Code, s 718.1). [39] “Gravity of the offence” is a concept aimed at the offender’s actions: the harm or likely harm to the victim and the harm orlikely harm to society and its values (R v Arcand, 2010 ABCA 363 at para 57).

[ 40 ] The "degree of responsibility of the offender" is tied to the offender’s moral culpability and the degree to which the offender actually intended the consequences of his actions. This requires consideration of the specific aspects of the offender’s conduct or background that tend to increase or decrease his personal responsibility for the offence ( Arcand at para 58 ). [ 41 ] Finally, the “sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances” (s 718.2(b)).

This is where the Court considers starting points, jurisprudence, and any other information that will assist in meeting this objective. [ 42 ] When an offender is sentenced for more than one offence, a court must consider single transaction totality, which essentially refers to the initial decision concerning whether sentences for two or more offences should be consecutive or concurrent. [ 43 ]

Section 718.3(4)(

b) provides some options for Courts on sentencing for cumulative punishments: (

b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively, including when (

i) the offences do not arise out of the same event or series of events, (ii) one of the offences was committed while the accused was on judicial interim release, including pending the determination of an appeal, or (iii) one of the offences was committed while the accused was fleeing from a peace officer. [ 44 ] In R v Friesen , 2020 SCC 9 , the Supreme Court noted the following about consecutive and concurrent sentences, at para 155: The decision whether to impose a sentence concurrent with another sentence or consecutive to it is guided by principles.

While the issue warrants further discussion in another case, the general rule is that offences that are so closely linked to each other as to constitute a single criminal adventure may, but are not required to, receive concurrent sentences, while all other offences are to receive consecutive sentences ( citations omitted ). [ 45 ] Generally, the party wishing to rely on a fact at sentencing has the burden of proving that fact ( Code , s 724(3)(b)).

The Crown must prove aggravating facts beyond a reasonable doubt ( Code , s 724(3)(e).) All other sentencing facts must be established on a balance of probabilities ( Code , s 724(3)(d)). V. PO’s Circumstances [ 46 ] PO testified at the sentencing hearing. Additionally, a Pre-Sentence Report ( PSR ) dated June 16, 2021 is in evidence. [ 47 ] During his testimony, PO said that he had two separate phone calls with the PSR writer. PO did not meet the writer in person. The first phone call lasted a few hours, and the second lasted an hour to an hour-and-a-half.

PO was on the unit during the phone calls, with other people around him. He noted that other people could have heard what he was saying on the phone call, observing that “some of the stuff was a little personal” but he “understand[s] that it needed to happen”. PO noted that he was not entirely comfortable speaking with the PSR writer but tried his best, as he understood it was important. [ 48 ] PO was born in Toronto. His family had immigrated to Canada from Africa. He is presently 32 years old.

His family relocated to Edmonton in 2008 where he went to high school, completing his diploma through adult education. [ 49 ] PO comes from an intact family (his parents and two older siblings) and lived with both of his parents when he was growing up. He testified that his parents remain together to this day, though they did live apart for a period of time when he was younger. He described the family’s wealth as “a little bit below average”. Overall, it appears that PO was raised in a lower middle-class setting and did not experience a notably deprived upbringing.

PO told the PSR interviewer that he felt loved and looked after while he was growing up and lived in a safe and stable home. PO enjoyed sports, family holidays, and other healthy activities. PO was raised in a religious environment that involved regular attendance at Church. By all accounts, he had a positive childhood with strong family connections. He maintains his closest bond with his father. [ 50 ] PO was not subjected to physical discipline as a child that left him with any apparent trauma. He was spanked and slapped and acknowledged that he misbehaved when these punishments were inflicted.

No objects were used on him. He described the discipline practices of his parents as “nothing crazy” and that his “parents did the best that they could with what they had”. [ 51 ] The PSR indicates that PO was a disruptive student in high school. He has no learning disabilities. PO admitted in his testimony that he was an “average” student “just doing enough to – pass”. [ 52 ] PO has never been married. He has two children (aged about nine and 12) from relationships with two different women, one of whom he does not communicate with.

His relationship with his children has suffered due to his incarceration. [ 53 ] He self-describes as a hard working individual with a calm demeanour and strong goal-orientation. PO says that he has been negatively influenced by others during his life. He has a positive view of his life after release, though on initial incarceration he had some suicidal ideations. PO wants to be a father to his children and improve himself. [ 54 ] PO began smoking marijuana when he was in high school, at the same time that he first began drinking alcohol.

He admitted having an alcohol addiction but given his circumstances he has been dry since he was incarcerated in 2016. [ 55 ] PO began working at the age of 13 or 14 as a newspaper boy and had a succession of labour jobs thereafter into adult life including as a delivery driver and with a tree service. He plans to return to the work force once he is released.

[ 56 ] PO has never been diagnosed with a mental health condition or engaged a psychiatrist or psychologist. [ 57 ] PO’s criminal record consists of four failures to appear under s 145 of the Code and a breach of recognizance, under the same section. [ 58 ] The PSR writer says that PO shows “concerning patterns of behaviour” specifically with respect to the matters before this Court. There is a distinct lack of recognition of the effect of these crimes on AB, and PO would not discuss questions about the offences or AB with the interviewer, who states: ...

The subject’s refusal to comment about the impacts on the identified victim or his level of remorse for his actions, demonstrates a potential lack of insight into areas that may contribute to his risk in the community.... [ 59 ] During PO’s testimony, the Crown advised that it would not rely on the fact that PO would not discuss the offences as an indication of lack of remorse or failure to cooperate with the PSR process, and I advised that I take the same view. [ 60 ] Further, although PO’s “identified goals appear to be reasonable and pro-social”, the interviewer notes that he “lacks motivation to address areas that led to his involvement in the Criminal Justice System” and he resisted efforts to discuss this.

Therefore, “it is unclear if he is willing to commit to making healthier choices in his life”. [ 61 ] Of note, PO has some history of non-compliance under supervision and displayed “institutional concerns” in custody. In particular, as a result of numerous physical altercations with other inmates, he has received shift lock ups, disciplinary segregation, and institutional charges; he has also disobeyed institutional rules and failed to follow staff direction.

However, there have been periods where PO is compliant and does not present behavioural challenges, resulting in him securing a role as unit cleaner. [ 62 ] In addition to, or in confirmation of the PSR, I note the following from PO’s testimony concerning his time with AB:

a) PO worked in the sex trade as a driver prior to meeting AB. He admitted lying to her about his experience to get her to work with him after they discussed working together on the first night they met.

b) PO was working with four or five other people at the same time as he worked with AB after about a year into their relationship.

c) AB never met PO’s mother. She met his father after PO was in ERC. She did not meet his sisters.

d) He admitted lying to AB many times; for example, about how many deaths he had seen while in ERC.

e) He admitted buying the firearm illegally, knowing he was under bail conditions to not have a firearm.

f) PO contradicted AB, saying that she knew about his biological daughter before he was arrested and about his son while he was incarcerated. He said that AB was lying when she said that he did not have children.

g) PO and AB started off as friends, then they started working together, and eventually started a romantic relationship after several months.

h) PO characterized his relationship with AB as “loving and toxic at the same time”. They both suffered from jealous feelings and would go through each other’s phones. When asked if “your work in the sex trade was at the core of your relationship with [AB]” he replied “[t]hat’s fair to say, correct”. His financial prospects improved when AB returned from Sudan and went back to sex work with him though he had been working with others in her absence.

i) He admitted that he got her to work when she did not want to and that it was “degrading”.

j) PO stated that AB was a happy and outgoing person when he first met her: “I thought she was a little immature . . . but overall she was . . . always happy, in a good mood, and cheerful”. VI. Aggravating and Mitigating Factors A. Aggravating Factors [ 63 ]

Section 718.2 (

a) of the Code directs a sentencing court to increase or reduce an offender’s sentence “to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender” and then lists several factors, which are tied to the evidence grounding the convictions, and are not limiting in nature. [ 64 ] In terms of statutory aggravating factors listed in s 718.2(a), I take into account the following:

a) AB was PO’s intimate partner. It is noted that at the time of the offences, the relevant

section made abuse by the offender of his spouse or common law partner an aggravating factor; now the language is “intimate partner”. The Defence acknowledges that the relationship between PO and AB is an aggravating factor for the sexual assault with a firearm conviction.

b) On the evidence at trial, AB’s financial and health situations were damaged by PO in a significant way, even if she did not provide a victim impact statement (apart from her testimony, which I will discuss below). [ 65 ] I also consider AB’s youthfulness and naivete: she was vulnerable and was taken advantage of by PO. PO himself noted in an ERC phone call that AB had been depressed and suicidal (Trial Decision at para 490). He admitted lying to her and acknowledged the “degrading” nature of sex work she performed.

[ 66 ] The Defence argues that AB is not the vulnerable and passive person the Crown depicts. Rather, AB’s evidence at the sentencing hearing clearly shows she was not a passive participant; rather, she presented as assertive, candid, engaged, intelligent, and self-determining. The Defence also argues that the physical and emotional abuse in PO and AB’s relationship was bilateral, which they acknowledge is not mitigating, but state that all of these things together show AB’s lack of vulnerability, which would negate this as an aggravating factor. [ 67 ] As mentioned above, the Crown urges consideration of sections 718.04 and 718.201 of the Code . [ 68 ]

Section 718.04 of the Code provides as follows: When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances – including because the person is Aboriginal and female – the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [ 69 ] This

section was enacted in 2019 and thus not in force when PO committed the offences. In R v Kolola , 2021 NUCA 11 , the Crown, at appeal, conceded that the sentencing judge erred in considering that he was statutorily compelled by

section 718.04 to give primary consideration to denunciation and deterrence. However, the Court of Appeal noted as follows at para 34: The sentencing judge was required to give primary consideration to denunciation and deterrence in sentencing Mr. Kolola based on common law sentencing principles.

Section 718.04 codified the long standing and well-established common law principle where Courts have considered denunciation and deterrence the primary sentencing considerations in cases involving the abuse of a victim who is vulnerable because of their personal circumstances. The sentencing judge erred in referring to a statutory provision not in force on the offence date, but his reliance on the principle was appropriate. [ 70 ] Thus, while I will not specifically apply

section 718.04 , I view denunciation and deterrence as primary sentencing considerations based on common law sentencing principles. I am also mindful of the Court of Appeal’s comments in Kolola about Friesen and its impact on sentencing offenders in sexual assaults involving adults, at para 36: ... While Friesen dealt with sexual abuse of children, the caution about relying on dated precedents in cases of sexual abuse of adult victims is equally applicable.

Our understanding of the gravity and harmfulness of sexual offences has evolved and courts must recognize that dated precedents may constrain a sentencing judge's ability to impose a proportionate sentence in these cases. ... [ 71 ] I turn to

section 718.201 of the Criminal Code which provides that: A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims. [ 72 ] As noted above, abuse of an offender’s intimate partner is a statutorily aggravating fact pursuant to s 718.2(a)(ii).

Section 718.201 simply adds a requirement that the court consider the increased vulnerability of female persons who are victims of intimate partner abuse, with particular attention to the circumstances of Indigenous female victims. [ 73 ] In R v AD , 2019 ABCA 396 , the Court of Appeal noted the following at paras 24-26, 29, which seems to indicate that s 718.201 may be at least a partial codification of the common law: The victim's status as an Aboriginal woman was not considered by the sentencing judge in sentencing the offender… The fundamental purpose of sentencing is to protect society (s 718).

Unfortunately, there is clear and overwhelming evidence that, when it comes to protecting Aboriginal women from violence and discrimination, more needs to be done. The homicide rate for Aboriginal women is six times that of non-Aboriginal women, and higher than the rate for non-Aboriginal men. Aboriginal women are almost three times more likely to experience violent victimization than non-Aboriginal women.

Compared with non-Aboriginal women, Aboriginal women are almost three times more likely to report being the victim of spousal violence and, compared with non-Aboriginal victims of spousal violence, Aboriginal women are more likely to have experienced spousal violence on more than one occasion. The sad fact is that Aboriginal women are disproportionately affected by domestic violence and violence in general and this reality should inform the sentencing process if there is to be any hope of achieving the fundamental purpose of sentencing and meeting the objectives set out in

section 718 of the Criminal Code , which include denunciation and deterrence. … … Taking the circumstances of Aboriginal victims into account in sentencing is consistent with the principles of sentencing, and arguably necessary in order to meaningfully achieve the fundamental purpose of sentencing, namely the protection of the public.

The circumstances of both the victim and the offender must be considered as relevant factors and, along with other relevant factors (e.g., aggravating and mitigating), be considered by the sentencing judge to arrive at a fit sentence. (Emphasis added) [ 74 ] In AD the Court specifically noted that it did not consider sections 718.201 (or 718.04) in its assessment. [ 75 ] Since these offences were committed, these Code provisions have been specifically enacted, showing Parliament’s intention to roundly and completely denounce the victimization of individuals who fall into the named categories.

Here, AB is female, experienced depression and had suicidal thoughts – this is in evidence and even according to PO, AB was a person in need of protection in some fashion. Although I have not specifically applied s 718.201, I have considered AB’s vulnerability, which the Court of Appeal noted, in AD , is relevant as a circumstance of the victim.

B. Mitigating Factors [ 76 ] The age of an offender may be a mitigating factor, particularly the offender’s youthfulness ( Friesen at para 174 ; R v Wowk , 2020 ABCA 119 at para 27 ; R v Shrivastava , 2019 ABQB 663 at paras 52-55 ) . In Shrivastava , Antonio J (as she then was) explained that y oung people may be more prone to impulsivity and unconstrained reactions. [ 77 ] PO is currently 32 years of age. He was in his mid-twenties at the time of the offences and therefore was a relatively young man, younger than the offender in Friesen .

However, the offences in the present case were not committed on a momentary impulse. Instead, they were part of a sustained pattern, they were predatory, and they involved serious violence. In this light, PO’s age deserves little weight (see R v Kollie , 2021 ABCA 389 at para 15 ; R v Field , 2011 ABCA 48 at para 19 ). [ 78 ] PO has a minimal criminal record. However, lack of a criminal record is not in itself a mitigating factor ( R v MGF , 2010 ABCA 102 at para 7 ; R v Tettersell , 2012 ABCA 57 at para 7 ) .

It may go to rehabilitative potential or to restraint in punishment as the offender may be deterred by a lighter penalty ( Shrivastava at para 71 ) . It may also support an inference that the offender is of “previous good character” for at least starting point purposes ( R v JAS , 2019 ABCA 376 at para 15 ) .

However, “the absence of a criminal record cannot be used to adjust the sentence below a starting point that is premised on the absence of a criminal record” ( Shrivastava at para 71 ) . [ 79 ] An Accused’s exercise of his right to trial is a neutral factor as the right to trial is fundamental ( R v Terroco Industries Ltd , 2005 ABCA 141 at para 39 ). But, even after trial, genuine remorse, particularly when combined with insight into the offence, may be a mitigating factor.

The Supreme Court in Friesen noted the following about remorse at para 165: …[R]emorse gains added significance when it is paired with insight and signs that the offender has “come to realize the gravity of the conduct, and as a result has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending” ( citations omitted ). [ 80 ] The PSR suggests that PO lacks insight into the offences while his conduct since being charged suggests he does not feel genuine remorse - indeed, the contrary conclusion could be reached. [ 81 ] However, in his testimony, PO said that he has come to understand that it is not permissible to force an intimate partner to have a sexual relationship without their consent.

At the time, he thought that this was permissible in the context of his relationship with AB. PO’s remorse began about two or three years into his incarceration. [ 82 ] At different times during his testimony, he expressed regret and remorse for his actions: (a) “[t]here’s a lot of things that I did to her that I regret and truthfully shouldn’t treat someone that you care about or that love in that manner. I don’t want to say I was young, cause I wasn’t that young.

But there’s other ways to get your point across ... you shouldn’t put hands on someone that you care about”. (b) “you don’t treat someone that you care about like that, right . . . I regret everything that happened . . not everything, but a lot of things, and . . . if I got another chance ... it wouldn’t turn out like that”. (

c) When watching the recording of his sexual assault on AB with the handgun, PO said that he felt “[l]ike a piece of shit” and was in a blind rage at the time. When asked why he felt like that he said: “Just cause I knew I was – I was hurting her. Like I said, I shouldn’t be doing things like that to people that I care about.” (

d) He is embarrassed and struggles to talk to his parents because of “some of the choices that I made cause my parents never raised me to make some of the decisions that I’ve made”. (

e) He wants forgiveness from God, from his family, from AB for hurting her.

He has become more spiritual and has a prayerful life feeling a need for forgiveness. [ 83 ] The Defence argues that PO’s testimony at the sentencing hearing shows his moral growth and development, remorse, and appreciation for his actions since the time of the offences. [ 84 ] The Crown argues that PO’s actions, including blaming the Complainant, blatant breaching of no contact orders, making ongoing financial demands of the Complainant, and discussions about using the Complainant must be weighed against any remorse PO expresses. [ 85 ] At the conclusion of the sentencing hearing, PO said the following: I have spent exactly 2,467 days 10 incarcerated, and not one day goes by that I haven't thought about the horrible things I have done.

I have let a lot of people down, none more than [AB]. She looked at me for love and protection, and I later became someone she needed protection from. I know to the Court it seems crazy for me to say that I love her, but it's the truth. I can't explain or justify why -- why I hurt her. There is no real explanation on why someone would sexually assault someone pointing a firearm just to scare her and, on top of that, record it.

Like I said in my evidence on the stand, at the time of the offence, because she was my girl, I figured hitting her and putting a weapon in her face was wrong but didn't think the sexual assault was wrong. I no longer have these views. I was absolutely wrong for even thinking that way. I have had many years to reflect on the harmful things I have done, and I hope [AB] forgives me. All I can ask for is a chance to be a better man. That's it.

(Transcript from Sentencing Hearing, September 7, 2023, p 37, ll 9-25) [ 86 ] PO’s statement “at the time of the offence, because she was my girl, I figured hitting her and putting a weapon in her face was wrong but didn't think the sexual assault was wrong” is mystifyingly out of touch with humane contemporary values. PO stated that he has changed his views about what is permissible between people, including those involved in intimate partner relationships. [ 87 ] Overall, I found PO to be an articulate and generally thoughtful witness.

I accept that he was trying to be honest throughout his time on the witness stand, which lasted the better part of three days. I find his remorse and desire to improve himself to be sincere and well-intentioned. [ 88 ] I accept that PO is now remorseful. At the time that he engaged in violence towards AB, he did not really think about it but regretted it afterwards, apologizing or taking AB shopping or otherwise trying to smooth things over. He now knows that he was wrong to treat her the way that he did. PO did present as a somewhat chastened individual during his testimony on sentencing.

I find that PO’s apparent remorse is a mitigating factor, though of minor weight on the whole of the evidence. [ 89 ] Canadian courts have recognized that systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness ( R v Hills , 2023 SCC 2 at paras 55 , 58, 87; Shrivastava at paras 83-4 ). The Crown conceded that PO, as an African Canadian, may have experienced racism and/or systemic discrimination in his life.

At the same time, there must be some evidence showing a connection between the systemic racism in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue ( R v Morris , 2021 ONCA 680 at para 97 ). [ 90 ] Generally, PO spoke about his pre-incarceration experience with racism vaguely and in generalities and did not indicate any particular trauma from it. [ 91 ] When asked about his experiences with racism growing up, PO replied “[h]onestly, I don’t really pay attention to that too much.

I mean, obviously there is racism in the world so it arises sometimes but I try my hardest to not let – to not let it affect me.” He heard the “n” word and felt subject to closer scrutiny when shopping at times. [ 92 ] T he evidence revealed that PO generally grew up in a safe, stable, and supportive family environment, however, it is noted that PO was subject to physical discipline growing up, with blows to his head during his adolescent years.

Nevertheless, notable trauma or sustained abuse is not evident. [ 93 ] In short, the e vidence does not suggest that PO’s life choices were limited or influenced by disadvantaged circumstances. The PSR indicates that PO “lacks motivation to address areas that led to his involvement in the Criminal Justice System”. It is significant that the Complainant was herself from a racialized background.

Ultimately, there is no basis to conclude that systemic or directed discrimination factored in a material way to affect PO’s culpability and moral blameworthiness . [ 94 ] The Crown argues that PO is a serious risk to the public, and that protection of the public is paramount in this sentencing.

His lack of insight and empathy, which they say can be inferred from his actions while in ERC, as well as PO’s expressions of ongoing violent thoughts and acts of violence in ERC, all indicate a risk to reoffend and a risk to the Complainant and the public. [ 95 ] Typically, evidence about an offender’s risk to reoffend is part of sentencing with respect to a dangerous or long-term offender designation, and the evidence usually comes from a psychiatrist or psychologist.

In this case, the Crown asks the Court to look at the evidence from trial and conclude that it establishes PO’s risk to reoffend. [ 96 ] There is case law that suggests Courts may look at the facts and circumstances of a particular offence and determine that they show an offender poses a particular risk. For example, in R v Miller , 2017 NLCA 22 , the Court of Appeal reviewed a sentence following a guilty plea to a charge of possessing child pornography.

Miller received ten months in custody, three years probation, and made subject to SOIRA, DNA and forfeiture orders, as well as an order under s 161 of the Criminal Code which prohibited him from attending at various places and activities involving children under age 16 and using a computer to communicate with persons under age 16. [ 97 ] Miller appealed the s 161 order, saying the Judge erred in making the order on the basis of the facts and evidence presented at sentencing, which he says did not establish that he poses a risk to society that would warrant the s 161 order. [ 98 ] The Court of Appeal emphasized that s 161 orders are discretionary.

In discussing risk assessments by Courts, the Court noted the following at para 21: All things considered, the direction from the Supreme Court in J (KR) and its direction respecting harms occasioned by the possession of child pornography in Sharpe , and the reasoning in A(RK) , lead me to conclude that the facts and circumstances of a particular offence and/or an offender can satisfy a judge that the offender poses a risk of danger to children so as to justify the imposition of a

section 161 order. [ 99 ] Miller’s risk to reoffend was addressed in his Pre-Sentence Report. He scored a low risk to reoffend on two risk assessment tests; however, neither were designed to assess reoffence of child pornography offenders. The Court found that they were of limited value and did not lead to a conclusion that Miller was a low risk to children. [ 100 ] The Court of Appeal noted the volume of images and videos, the ages of the children depicted, and the content of the videos and images were disturbing.

The Court found the sentencing judge, having viewed a selection of the videos and images and provided reasons why he found the material of a nature and volume to cause him to conclude that the offender posed a risk to children, did not err in making a s 161 order. [ 101 ] In R v A(RK) , 2006 ABCA 82 , our Court of Appeal also discussed s 161 orders, noting at paras 26, 28:

Section 161 demands a purposive approach. In considering the terms of the s 161 order, the court must assess the extent of the risk to

children based on a number of factors, including the circumstances of the offence and the offender. Where the factors suggest a substantial risk, a broad, lifetime order will be appropriate unless the court is satisfied that a less restrictive order can alleviate that risk. ... ... The appellant asserts that the absence of a previous related record or evidence of a potential for recidivism suggests a less restrictive order. However, neither a related record nor psychological evidence supporting untreatable paedophilia are pre-conditions to a s 161 order.

The circumstances of the offence may themselves be sufficient for a trial judge to be satisfied that the offender poses a serious danger to children . Having made that determination, those same circumstances affect the length and nature of the order. (Emphasis added) [ 102 ] Defence Counsel also argues that the context of the “romantic” relationship between PO and AB must be considered in a review of PO’s actions.

In fact, this is a significant point for the Defence. [ 103 ] While PO and AB indeed had a romantic relationship, at the same time it has to be emphasized that AB was having sexual relations with strangers for money, and PO was guiding, facilitating, and organizing this activity and managing the money and what AB got from her sex work. PO also subjected AB to significant abuse. [ 104 ] PO tried to paint himself as benevolent when AB was with customers and he was there to protect her, even hiding in closets during her encounters.

He bought a handgun (though never ammunition) to scare anyone who was putting AB in danger. He talked about an instance where AB needed help and he came to her rescue from an unpleasant customer during an “outcall”. But it must be remembered: he put her in that position in the first place. [ 105 ] A major component of the Defence mitigation argument, and the substantive defence at trial, came from the relationship itself. But in looking at PO’s admissions on sentencing, it is not mitigating for the specific crimes for which he has been convicted.

In fact, the relationship, as an intimate partner relationship, with both partners loving each other, is a fact that is aggravating. [ 106 ] Consistent with the Defence theme throughout the trial and sentencing process. PO emphasized the romantic side of his relationship with AB. They had plans together to buy property, improve it, and sell it. He had a somewhat positive view of what he did for AB, not really viewing it as “pimping” which he described as “taking advantage of other people”. However, the relationship was fraught with insecurity, and PO admitted that (though not in those words exactly).

They also argued about money. [ 107 ] PO was open about his controlling and intrusive behaviour. He admitted getting “physical” with AB. He described himself as jealous: “I guess I didn’t want her to be with other guys, and sometimes I would go through her phone and just find messages, messages with her meeting up with guys, or chilling with guys”. However, it must be noted that he tolerated AB having sexual relations with strangers for money throughout the relationship.

He also tried to paint a picture of reciprocal jealousy. [ 108 ] PO was candid that there were “quite a bit” of occasions where he used violence against AB. [ 109 ] PO downplayed the sinister nature of his efforts to get AB to lie during the preliminary inquiry, explaining it as an effort to get her to tell “the story as it actually happened” because he was “upset that she was letting . . . the narrative go in a different way than it actually happened”. He wanted the good side of their relationship to be before the court as well.

She said things that made him “look really bad” and he wanted some of the good things to be spoken about.

However, he admitted that he wanted her to lie, particularly about the sexual aspects of their relationship. [ 110 ] This is either a lack of sophistication or utter guile. [ 111 ] Also noteworthy is the fact that despite the court ordered prohibition, he continued to talk to AB throughout the proceedings and admitted that they had spoken the day before his first day testifying at the sentencing hearing, saying that he loves AB and that the longest period where he tried to follow the court order was perhaps one month.

He agreed that he had “been consistently and continuously breaching” the no contact order knowing it was a crime to do so. [ 112 ] In my view, PO has demonstrated that he is at risk of reoffending, and that must be taken into account, however it is impossible to characterize the level of risk. I do not have psychiatric or psychologic evidence. I do not take any issue with the absence of expert evidence on PO’s recidivism risk. I do not see this as an evidentiary gap on sentencing.

While he offended during his time in ERC, and had conflict and difficulties as an inmate, he was also granted the privilege of being a cleaner and in other ways appears to have been a high functioning and cooperative inmate. However, his snubbing of court orders is of great concern as I will outline later in these Reasons. C. AB’s Testimony on Sentencing [ 113 ] AB did not provide a Victim Impact Statement; however, she did testify for the Defence at the sentencing hearing. AB testified that she and PO talked very regularly still, despite the conviction and the no contact order.

The latest calls had occurred about a week or so before AB testified at the sentencing hearing. [ 114 ] The Crown submits that AB’s testimony at the sentencing hearing was not credible and that it is best understood as a type of Victim Impact Statement, in that she is still affected by the events that make up the offences. [ 115 ] As I found at trial, and noted above, when AB is subject to PO’s control, she strays away from the truth.

At sentencing, AB had reverted to a position of support of, and even love for, PO, while at the same time acknowledging his mistreatment of her, his violent behaviour, and the way he was “portrayed” at trial. Her evidence was akin to her preliminary inquiry evidence and the earlier part of her testimony, that is:

… not worthy of belief … not credible on those occasions when she described, among other matters, her relationship with the Accused, denied or minimized the violence in that relationship, his control and jealousy and suggested that she worked with the Accused in the sex trade in some form of equitable business partnership… …AB’s credibility was at its lowest when she was most vulnerable and most clearly under the Accused’ control, emotional, physical or otherwise.

The more that AB wanted to maintain or rehabilitate her relationship with the Accused and the more she sought to protect him, the more her evidence was implausible, unwillingly given, contrived, vague, couched in claims of memory loss and otherwise not believable . (Trial Decision at paras 288-289). [ 116 ] Thus, AB’s sentencing hearing evidence was similar to her evidence at trial when she was trying to explain or minimize PO’s treatment of her. Among other things, AB gave evidence at the sentencing hearing that:

a) PO is not a “bad person”. He was not a “pimp” because their relationship was “caring towards me… [he] loved me and … showed affection towards me”. She saw him as “fair”. At the same time, she talked about her extreme anxiety when she was engaged in sex work, not knowing what a particular client might do “every time I went to open the door . . . [l]iterally every single time”.

b) She said that she tended to “overexaggerate everything all the time” while at the same time acknowledging PO’s violent behaviour, most often triggered by jealousy and social media issues. She confirmed that he would pull her hair, choke her, and throw her around. She also said that she had blocked his number so he could not call her from ERC “a million” times.

c) AB claimed to have been “happy” when she met PO, the relationship had its “ups and downs”, but she loves him and said, “I know he loves me” and that her love for him is “never ever going to end or stop ever”. She wants him out of custody and never wanted him in gaol.

d) Oddly, AB then claimed to have telepathic powers to know how PO feels, particularly about her. And she claimed that her memory on the day of her testimony at sentencing was better than her memory previously. She also denied that PO has a child, insisting that “he doesn’t have any kids”. [ 117 ] In brief, I find that AB has minimal credibility when she is painting PO in a positive light.

Her testimony at sentencing was unconvincing, and if it is to function analogously to a victim impact statement, I put no weight on it. [ 118 ] To be clear, AB’s evidence at sentencing plays no role in my determination of a fit and appropriate sentence in these Reasons. D. Harsh Edmonton Remand Centre (ERC) Conditions [ 119 ] Later in these Reasons I will address PO’s argument that his time in custody at ERC subjected him to conditions that violated his s 7 and s 12 Charter rights.

For now, I will address the argument that his ERC experience could operate as a mitigating factor. [ 120 ] I do note at this point that our Court of Appeal in R v Biever , 2023 ABCA 138 , considered the effect of harsh pre-sentence custodial conditions as a mitigating factor, at para 29: While it is not necessarily an error to express the recognition of particularly harsh pre-sentence custody conditions as enhanced credit, it is preferable to consider such conditions as a mitigating factor to be considered in determining the appropriate sentence at the outset: see R v Taylor , 2023 ABKB 175 at para 40 .

As with any mitigating factor contested, a bare allegation is insufficient. There must be evidence as to the particular conditions existing and how they affected the individual being sentenced. The goal remains to craft a fit and proportionate sentence. [ 121 ] PO testified during the sentencing hearing and filed two affidavits outlining his conditions of incarceration. The evidence is as follows:

a) After his charges and identity were released in the media, he was called a “skinner” and other insulting names. The guards told other inmates he had trafficked someone underage. He says another inmate made a threatening gesture to him.

b) He was fecal bombed. Urine and feces sprayed his face, body, belongings, and cell. He was made to clean up the mess. During that incident he heard profanities and “skinner” being yelled.

c) After the fecal bombing incident, he was moved to Max Pod where he stayed for 4-5 days. He was given the choice to stay in Max Pod or move to Protective Custody (PC). He believed Max Pod was the worse option and chose to go to PC. He notes “I now understand that once you go into PC, you are stuck in PC, and it is difficult to get back into Gen Pop without being subsequently beaten by other inmates on a regular basis for having been in PC.”

d) While on the PC unit he was harassed, the guards would tell the other inmates what his charges were and would call him a “skinner”.

e) Being in PC meant he was unable to attend certain programs at ERC.

f) He was in a few fights with other inmates. Although he tried to avoid confrontation, he had to defend himself.

g) While unit cleaner he was sucker punched in the head and fought back out of fear.

h) He was strip searched when leaving and entering ERC for court and, at times, the guards taunted him and commented on his genitals, making him feel uncomfortable and vulnerable.

i) He witnessed two people die in custody. He watched the guards and paramedics try to revive his neighbour for about 45 minutes, but they were unsuccessful. He was not told of any support opportunities to deal with the incident. Another person on his unit died; he saw the guards trying to perform CPR and the person bleeding profusely after his head hit a bunk. There was no recognition of the deaths, and he was not offered grief counselling or anything similar, nor could he seek counselling or assistance.

j) He contracted COVID-19 and had relatively severe symptoms before recovering. [ 122 ] While incarcerated there were incidents which Defence Counsel identified as having racist aspects. (

a) PO was called a “monkey” by a guard when he had been “cheap-shotted” by another inmate, his lip got cut and he spat blood on the floor. PO testified that he wasn’t sure if this was a racist name or was meant to describe PO as “just an animal or something”. He did not “make a big deal out of it”. He said that this related to him spitting on the floor. (

b) While cleaning the guard “bubble” PO says that a guard on duty had a confederate flag on his computer desktop background. This was shortly after the George Floyd incident in the United States. About the George Floyd matter, the guard told PO “that should happen more to people like him.” PO heard guards discussing this, and they had mixed views. He did not judge the guard who felt Mr.

Floyd deserved what he got, stating that “It doesn’t matter where you are, you could be in gaol, on the street, at work, there is going to be people with different opinions and different thoughts so I mean, that could just be his upbringing or maybe the people that he hangs around with . . . he’s entitled to that thought”. In his own words, this incident made PO fear being judged and uncomfortable and to fear for his safety. His actual safety was not jeopardized, however. (

c) There was another inmate with white supremacist tattoos, and on one occasion he called another inmate the “n” word. PO got into a physical altercation with this inmate. In regard to the “n” word generally, PO testified that “it’s just a word at the end of the day. I mean, sure it stings to hear but some people are just ignorant . . . they don’t even know what they’re saying themselves . . . so I try my best to ignore it”.

PO testified that this inmate had turned his life around and they did not in fact have a personal animus with each other. [ 123 ] To address the Charter application, and the argument concerning harsh treatment as a mitigating factor, the Crown called Mr. Ian Lalonde, Director of Custody Operations Branch of the Correctional Services Division of the Government of Alberta, as a witness. [ 124 ] Mr. Lalonde testified generally about conditions in Protective Custody, as well as conditions during the COVID-19 pandemic. [ 125 ] Mr.

Lalonde agreed with many of the descriptions given by PO in his affidavits, including PO’s descriptions of the privileges and duties associated with being a cleaner. However, Mr. Lalonde added on redirect, that cleaners are often out of their cells for more than the approximately 11 hours that regular inmates get. [ 126 ] He also gave evidence concerning the amount of time inmates were permitted out of their cells during the beginning of the COVID-19 pandemic – specifically half an hour, twice a day from March 27 to June 2020. Mr.

Lalonde added that as COVID-19 restrictions eased PO would eventually have been allowed out of his cell up to five hours a day. Finally, as of May 25, 2022, ERC inmates were back to approximately 11 hours out of cells each day. [ 127 ] Mr. Lalonde also mildly disagreed with some of PO’s descriptions of ERC, although Mr. Lalonde was speaking in generalities, as opposed to commenting on PO’s particular situation. For example, Mr. Lalonde did not believe it was entirely accurate to say that PO had no options other than PC or Max Pod when he was first admitted to ERC. Mr.

Lalonde also noted that generally ERC would not have an inmate clean up a fecal bombing of which they were the victim. [ 128 ] In general, I find that while there were unfortunate incidents during PO’s more than six years at ERC, they do not constitute particular targeting or effects on him and are mostly bare allegations that are contradicted for the most part by the ERC records and the testimony of Mr. Lalonde.

I will take notice of the COVID-19 conditions when I address sentence totality, but this would be the most compelling aspect of mitigation arising from incarceration conditions. [ 129 ] In other words, pre-sentence incarceration conditions at ERC are moderately mitigating in nature. VII. Disposition for each Offence A. Count 1: Trafficking in Persons (s 279.01) [ 130 ] The Crown submits that the confluence of facts in this case is unparalleled and calls for an exemplary sentence that exceeds any reported decision on human trafficking to date.

The Crown seeks a sentence of life imprisonment, or alternatively twelve years’ incarceration, plus consecutive sentences for the other offences. [ 131 ] The s 279.01(1)(

a) offence of human trafficking carries with it a mandatory minimum sentence of five years when an offender commits an aggravated assault (or kidnapping, aggravated sexual assault against or causes death to the victim) during the commission of the offence.

Section 279.01(1)(

b) provides a mandatory minimum sentence of four years for other instances of human trafficking. [ 132 ] I will first address the Defence argument that the mandatory minimum sentence is unconstitutional. Defence takes the position that s 279.01 violates ss 7 and 12 of the Charter and applying them prevents the Court from imposing a fit and proper sentence in this case.

Defence also argues that the mandatory minimums are grossly disproportionate for a reasonable hypothetical offender. [ 133 ] The four-year mandatory minimum sentence for human trafficking was held to be unconstitutional in R v Reginald Louis Jean , 2020 ONSC 624 . I adopt the reasoning of the court in Jean and approach this offence without the mandatory minimum sentence in mind. In particular I note the Court in Jean’s description of “broad wording” of s 279.01. Like in Jean , the mandatory minimums in

section

279.01 are not grossly disproportionate to this offender; however, I agree that they could be in relation to the reasonable hypothetical offender in this case and those found in Jean , and R v Ahmed et al , 2019 ONSC 4833 ). [ 134 ] The reasonable hypothetical in this case, as amended by the Defence to address Crown’s criticism of the original being unreasonable is as follows: Javier is residing in Alberta and registered in a thesis only program, having completed the course requirement for his graduate degree in political science and has not been a full-time student for some time.

As a result, he is barred from working in Canada during the period of his student visa. Because of COVID, it became difficult for Javier to return to his home in El Salvador during the summer break; he therefore found himself living in Alberta without any means of support. Javier fears returning to his home as he would be subject to gang retaliation for having fled his country. Javier discussed his financial circumstances with a fellow political science student, Martin. Martin then offered to assist Javier in getting employment at ABC Farms Inc.

Martin gets a kickback from ABC Farms Inc. for every worker hired on Martin’s recommendation. Javier took Martin up on his offer and Martin transported Javier to ABC Farms Inc. where he got a job working in the hay bale packing operation. This position involved compressing and wrapping hay bales for transport to countries like Japan. Javier received minimum wage for this work and was provided bunkhouse accommodation and three meals a day. Though provided a bunkhouse and meals while working, Javier has 4 days off after each 10 days working on the farm.

He is not allowed to stay in the bunkhouse or receive meals on his day off. Martin is paid a percentage of Javier’s wages upon each occasion of delivering Javier back to work. When this happens, he receives 10% of Javier’s previous weeks wages. Unfortunately, the work was very hard and dangerous. On one shift, Javier witnessed one of his co-workers being killed by one of the machines used to compress the bales. He came to understand that farming operations of this sort were exempt from occupational health and safety laws.

Javier wanted to quit; however, Martin threatened to report him to immigration should he quit and Martin lose his kickback and percentage of Javier’s wages. Javier was fearful of Martin’s threat as his being reported would result in the cancellation of his student visa and his forced return to El Salvador where he lives in fear of assassination by gangsters. Moreover, on this last trip to work, while being transported by Martin to the ABC Farms Inc. worksite, the two got into an impassioned disagreement surrounding Donald Trump’s presidency.

At one point in this disagreement, Javier accused Martin of supporting an anti- democratic authoritarian fascist. Martin responded by striking Javier’s cheek with an open hand. Martin’s large gold diamond-studded ring cut Javier’s face and left a small but permanent scar. Martin promptly apologized for the wounding, but the damage was already done. [ 135 ] In Jean the Court reviewed several hypotheticals: 34 In R v Finestone, 2017 ONCJ 22 Justice Greene listed a number of reasonable hypotheticals for which the minimum sentence would not be a proportionate sentence: i.

An 18-year-old who exercises control over the victim by uttering threats. As a result of the threats the victim is forced to clean the offender’s house one time only. ii. An 18-year-old prostitute agrees to drive another prostitute to a motel at the behest of a pimp so that the passenger could work as a prostitute for the pimp at the motel. iii. A café owner faced with a person who is homeless and vulnerable catches her stealing some food.

The owner threatens to tell all the neighbouring business owners about the thief and put her photograph on the internet so that she will be barred from all local business unless the thief works in her kitchen and cleans the café every day for free. Tis [sic] continues for five days and ends when the thief tells a friend about what is taking place who in turn contact the authorities. iv.

An 18- or 19-year-old boy with no prior record, who is homeless and troubled, forces a fellow homeless person who is new to the city and has nowhere to live, to work as a prostitute for him with the promise of a better life, a warm room, and some attention. The victim services one client where the act is oral sex. The offender keeps all the profits. The following day, after realizing that she would see none of the profits and feeling depressed and violated, the victim leaves. 35 In R v Ahmed [2019] O.J.

No. 4808 Labrosse J. held that the mandatory minimum sentence of five years under s. 279.011 of the Criminal Code was grossly disproportionate for the two offenders. The two offenders brought two sixteen-year-old girls, who had been drinking, to a hotel room and introduced them to unknown men. The Court found that Ahmed was preparing the complainants for escorting. The Court decided that an appropriate sentence for Ms. Ahmed was 18 months in prison.

The Ahmed decision dealt with s. 279.011 which involves trafficking of persons under 18 years of age but the constitutional principles applicable to minimum sentences are similar. This is an actual example where the minimum sentence was grossly disproportionate. If the two complainants had been over 18 years of age then this would be a reasonable hypothetical. 36 Based on the broad wording of

section 279.01 there is nothing limiting the situations covered by s. 279.01 to the sex trade even though that was the stated objective.

As a result based on the reasonable hypotheticals outlined in Finestone and the situation in Ahmed I find that there are reasonable hypotheticals where a minimum sentence of four years would be grossly disproportionate. [ 136 ] The evidence at trial established that PO used threats and violence and engaged in other activity to secure AB’s “labour or service” in the sex trade and in all the circumstances, could reasonably be expected to cause her to believe that her safety would be threatened if she failed to comply. PO was deceptive, manipulative, controlling, and abusive. He managed AB’s life, controlling

transportation and other travel logistics, arranging for sexual services to be performed by AB and then controlling the money that she earned. He threatened AB with violence and carried it out—creating an exploitative relationship. [ 137 ] PO was in a position of trust with AB due to their domestic partnership. They cohabited and they were in a relationship. PO referred to AB as his girl in his remarks on sentencing. [ 138 ] What is the appropriate sentence in this case for human trafficking? [ 139 ] Both Crown and Defence raise R v S(A) , 2017 ONSC 802 .

Defence raises R v Moazami , 2015 BCSC 2055 and R v SC , 2019 ABQB 793 ; and R v Lopez , 2018 ONSC 4749 . Crown raises R v AE , 2018 ONSC 471 ; R v Burton , 2018 ONCJ 153 ; R v Byron , 2014 ONSC 990 ; R v Gardner , 2020 ONSC 5954 ; and R v Brown , 2018 ABQB 469 . [ 140 ] These cases involve the following sentences: • S(A) – Offender received twelve years for trafficking with an aggravated assault.

The sentencing court considered the appropriate sentence for the aggravated assault alone (5-6 years) and the appropriate sentence for the trafficking alone (8 years) and then ordered a global sentence of 12 years for both. • Moazami – Offender received a total sentence of twenty-three years, after totality, for 30 counts of sex work related offences, sexual assault, and sexual interference related to eleven victims. • SC – Offender received 10 years for trafficking his minor daughter, before totality • AE – Offender received seven years for trafficking one complainant for several years and five years for trafficking a second complainant for several months, with those sentences to run concurrently. • Burton – Offender received eight-and-a-half years for trafficking two complainants. • Byron – Offender received six years for trafficking a minor for several months. • Gardner – Offender received five years for human trafficking and four years consecutive for sexual assault, each reduced by one year for totality, resulting in a seven-year global sentence. • Brown – Offender received 5 years for trafficking a 12-year-old for a brief time. [ 141 ] The Crown notes that some courts have recognized a sentencing range of four to eight years for human trafficking offences ( AE ; R v Jordan , 2019 ONCA 607 ; Gardner ). [ 142 ] The Crown distinguishes the following cases, which involve sentences for human trafficking of five to six years, despite violence, coercion, and somewhat protracted periods; Crown says these are “flawed” because they relied unduly on old ranges ( Lopez , 2018 ONSC 4749 ; R v Salmon , 2019 ONSC 1574 ; R v Leduc , 2019 ONSC 6794 ). [ 143 ] The Defence points out that Moazami and SC both have many more aggravating factors, and S(

A) involved a much more serious aggravated assault during the commission of the human trafficking than in this case. [ 144 ] Looking at the case law and considering the wide range of circumstances of these offences, as well as the wide range of aggravating and mitigating factors it appears that the sentencing range for human trafficking offences, without an aggravated assault during the commission of human trafficking, is generally between five- and ten-years imprisonment. [ 145 ] With regards to this offence, the Crown raises two key arguments: (

a) Should the Court impose a consecutive sentence or a global “umbrella” sentence, with the human trafficking offence as the base and fit the other offences under that umbrella? (

b) Should the Court adhere to past precedent in human trafficking sentencing decisions or depart from this range? [ 146 ] As discussed above, the first option suggested by the Crown is to treat trafficking as an “umbrella” offence and impose one longer sentence that covers the human trafficking and all incidents of violence together, in which case Counts 5-9 would be concurrent. [ 147 ] The second option is to determine what consecutive sentence is warranted for human trafficking in this case and disregard the three specific incidents of violence in Counts 5-9 to avoid double counting. [ 148 ] Being mindful of double counting and double punishment, I am inclined to sentence this offender for each offence, then determine consecutiveness or concurrency between offences, and then view the sentences under the rubric of totality. [ 149 ] Further, I decline to impose a life sentence.

The offences here are grave and manifestly injurious to the victim, but I cannot conclude one way or another if PO is “a person of unstable character likely to commit such offences in the future” ( Boucher ) or that he has a particularly “disturbed and dangerous personality” ( Horvath ). I cannot reach the level of firmness in my conclusions concerning potential recidivism. There is a lack of psychiatric or psychological evidence that would support a life sentence. This lack is not determinative nor do I suggest that such evidence is necessary here; I simply make note its absence as a consideration.

In short, a life sentence would, in my view, be crushing and outside of sentencing principles in the whole of the circumstances here. [ 150 ] The Crown submits that a departure from past precedent is warranted. This is because no reported decisions have recognized and engaged with the combined implications of society’s increased appreciation of – and alarm at - the harms of trafficking, Parliament’s increased minimum and maximum for the offence, and the impacts of the enactment of ss. 718.04 and 718.201 .

[ 151 ] Further the Crown argues that reported decisions have applied the Alberta Court of Appeal’s framework for the earlier offence of “living on the avails” without critically reflecting on whether human trafficking offences require different sentencing ranges.

The Crown argues that human trafficking sentences ought to be lengthier than those imposed for “living on the avails.” [ 152 ] If the Court departs from past precedent, the Crown argues for a sentence on the human trafficking charge in the range of 10-12 years consecutive, with parole eligibility 7 years from PO’s December 5, 2016, arrest. [ 153 ] If the Court declines to depart from precedent however, then the Crown argues for a consecutive sentence in the range of 8-10 years This is if PO demonstrates genuine remorse and has some prospect of rehabilitation.

If the Court finds a lack of remorse and that PO poses a substantial risk to public safety then the Crown argues for a greater emphasis to be placed on separation from society, calling for a life sentence with parole eligibility after 7 years. [ 154 ] The Crown recognizes that this would be an exceptional sentence but argues that it is appropriate given the long pattern of criminality, the gravity of the offences, the offender’s high degree of blameworthiness, and the utter disregard shown for society’s values and the court orders imposed upon him. [ 155 ] I accept the Crown’s submissions on the international community’s evolving views on human trafficking, as captured in the Protocol to Prevent, Suppress, and Punish Trafficking in Persons Especially Women and Children , a protocol to the United Nations Convention Against Transnational Organized Crime .

I acknowledge the Government of Canada’s aims in creating new human trafficking offences, namely, to protect vulnerable people from exploitation. [ 156 ] During Parliamentary debates on new human trafficking offences, the Minister of Justice described the problems such offences were meant to address. He noted human trafficking is a “scourge upon humanity”, and “the new contemporary global slave trade”, and involves “the persistent and pervasive assault on human rights”. With respect to the impact on trafficked people, he noted: But no matter for what purpos

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