r v. STEPHEN DUBOIS, 2019 QCCQ 1206

R. c. Dubois 2019 QCCQ 1206 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No: 500-01-142814-166 DATE: April 3, 2019 ______________________________________________________________________ BY THE HONOURABLE CHRISTIAN M. TREMBLAY, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

STEPHEN DUBOIS Accused ______________________________________________________________________ RECTIFIED JUDGMENT (SENTENCE) ______________________________________________________________________ Restriction on Publication By Court Order, information that may identify the person described in this judgment as “the complainant” may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application.

See the Criminal Code , s. 486.4 (1) (2.1). [ 1 ] The judgment (sentence) was rendered orally on February 25, 2019. [ 2 ] The parties were advised that a written version would be filed. [ 3 ] The written judgment was rendered on February 26, 2019. [ 4 ] The parties informed the Court about an error with one of the conclusions. [ 5 ] Considering there was no application of the prosecutor to impose an order to comply with the Sex Offender Information Registration Act. [ 6 ] Considering the Court was not in the situation of par. 490.012 (1) of the Cr.C . [ 7 ] Considering the Court made a mistake with the fifth conclusion of the judgment rendered February 26, 2019. [ 8 ] Considering this Court still have jurisdiction to rectify this error ( R. v.

R.P ., 2018 ONCA 473 ). FOR THESE REASONS THE COURT: [ 9 ] AMENDS the judgment rendered on February 26, 2019, to set aside the following conclusion: ORDERS to comply with the Sex Offender Information Registration Act (s. 490.012 (1) and s. 490.013 (1)

(2) b) Cr.C .). __________________________________ CHRISTIAN M. TREMBLAY, J.C.Q. M e Jean-François Roy Crown attorney

M e Éric-Pierre Fugère Defence attorney R. c. Dubois 2019 QCCQ 1206 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No: 500-01-142814-166 DATE: February 26, 2019 ______________________________________________________________________ BY THE HONOURABLE CHRISTIAN M. TREMBLAY, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

STEPHEN DUBOIS Accused ______________________________________________________________________ JUDGMENT (SENTENCE) [1] Rendered orally on February 25, 2019 ______________________________________________________________________ Restriction on Publication By Court Order, information that may identify the person described in this judgment as “the complainant” may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application.

See the Criminal Code , s. 486.4 (1) (2.1). Introduction [1] On July 10, 2018, the accused pleaded guilty to three counts concerning the same criminal transaction: procuring with a person ( s. 286.3(1) Cr.C .), material benefit from sexual services ( s. 286.2(1) Cr.C .) and advertising sexual services ( s. 286.4 (

a) Cr.C .). The victim is A. L., a young girl who was 17 years old when the offences have been committed.

The facts [2] The parties agree that the facts relevant to the offences are the following [2] : - In September 2015, the victim accepted someone on Facebook whose username was Stephen King; - Her profile showed she was looking for a job at that time; - On September 12, an exchange between Stephen King (the accused) and the victim occurred in which the accused offered her to make money; - He proposed stripping, which was refused and then prostitution was offered by him and accepted by the victim; - The victim had never tried neither activity before; - He offered to transport her and put the ads on internet; - He asked her to provide him with sexy pictures of hers; - She did send him 3 or 4 pictures via Snapchat; - Around the 2 nd of October 2015, he comes to her friend’s home in Delson to pick her up with a lady who drives the car; - He informs the victim that a client is booked for one hour that she will have to provide complete sexual intercourse for the amount of 200 $;

- She did exactly that and afterwards give the 200 $ to the accused, who gave her back 100 $; - The deal between them was to divide the amount of money gained equally; - She worked like that for around 9 days between 8:30 pm and 3:30 am, doing outcalls in Montreal downtown hotels, all clients (between 2 and 6) booked by the accused; - She was brought back home in Delson after every day of work by the accused and the lady driver; - The accused never showed her the ads, but she asked a client once to see the ad he answered to and saw an ad on Québec BackPage with 2 or 3 pictures that she had sent him before.

Her nickname on this ad was C.; - It happened once that a client didn’t have money on him, so she called the accused to know what to do. He told her to make the client pay via internet transfer, which he did. After that client, the accused told her to go to an RBC ATM to withdraw the 200 $ transferred in order to get his share of the amount; - At one point, the accused started to take more money for him, arguing an increase in expenses. The victim didn’t like that, told him, but the accused raised his voice.

She felt intimidated by that and never brought the subject up again; - She decided to quit that line of work by herself, after what the accused tried to reach her on a few occasions. The Victim Impact Statement [3] In her Victim Impact Statement dated October 5, 2018 [3] , A. L. insists that she was then very vulnerable and that she was victim of manipulation. She felt like she was being violated. After three years she still has nightmares and she has trouble seeing her own worth. She tried to drown her thoughts in drugs and alcohol.

She dropped out of school because she could not concentrate on anything but her past. [4] It is clear, Mrs. L. has been traumatized by this adventure. The Presentence Report [5] To better understand the personality of the accused, a Presentence Report has been prepared [4] . Unfortunately, the picture that emerges from the report is not very positive. [6] Mr. Dubois has not had a difficult childhood. He grew up in a family that taught him the importance of keeping one’s commitments, following rules and social norms, and the value of work.

He was encouraged by a benevolent mother in pursuing athletic and social activities. [7] He ended his studies when he was 16 years old due to lack of interest. He started to work but he regularly changed jobs. The search for pleasure and a near-daily cannabis habit partially governed his lifestyle. [8] He was associating with asocial peers and was proud of being accepted by a marginal and delinquent peer group.

He accepted some of this peer group’s values such as a priority on leisure, cannabis use, and immediate gratification without regard to consequences. [9] In his reaction following the offence, he acknowledges the actions of which he was accused. However, his first reaction is to describe the whole episode as a poor business decision that made him loose money in advertising expenses. He states that prostitution may have negative impacts on persons who practise it. But the probation officer doubts about the sincerity of his self-examination. For Mr.

Leblanc, the offending behaviour appears to have been situational, opportunistic and resulting from flexible morals. [ 10 ] To move forward, Mr. Dubois wishes to take courses in business management in order to improve the skills needed to adopt a fulfilling way of life. However, his current lack of structure has led to illegitimate income coming from undeclared Internet resale of goods purchased whole sale. He is also trying to set up a musical event promotion business, with the goal of selling related branded merchandizing.

The probation officer considers these situations show that foundation necessary for the changes the subject wants to make are lacking and could lead once again to ambiguous and potentially criminological situations. [ 11 ] For Mr. Leblanc, the risk of recidivism remains present. Testimony of the accused [ 12 ] Mr. Dubois testified before the Court. He recently found a job at Provigo’s store in the West Island. Between March 2016 and September 2018, he had no job. He also said he will accept help for his psychosocial problems.

However, in the Presentence Report the probation officer wrote that the accused rejects this possibility. Concerning the victim, he apologized to the victim. He said he made a mistake and feels very bad about what he did. Mitigating and aggravating factors [ 13 ] As stipulated to s. 718.2 (a): […] a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender […] [ 14 ] The mitigating factors are: - the age of the accused; he was only 20 years old;

- the social contact with clients were approximately between two to six per night for a duration of nine nights; the duration was limited in time and the frequency of the offences was low; - he registered a guilty plea, but it was the day scheduled for the trial. [ 15 ] The aggravating factors are: - planning of the offence; - he initiated the victim into prostitution; - there seems to be serious damage to the psychological integrity of the victim; - the age of the victim; she was 17 years old ( s. 718.2 (a) (ii.1) Cr.C .); - the vulnerability of the victim; - the non-respect of the conditions of his release; - the lax way of life of the accused; - he changed the deal between them to keep more money for him. [ 16 ] About the remorse expressed at the sentencing hearing, the Court doubts the sincerity of the accused.

In the Presentence Report, Mr. Dubois was far from regretting what he had done. [ 17 ] Concerning the new job he found, it is positive, but once again, the accused reacted at the last minute to try to correct the negative aspects of the report. Respective submissions of the parties [ 18 ] The Crown considers a two years less one day of detention is appropriate concerning count number one. For count number two, twelve months concurrently and, finally, for the third count, a four months detention concurrently with the detention to be imposed for the first two counts. [ 19 ] The prosecutor refers the Court to R. v.

Ellis [5] , where the Superior Court of Justice imposed as sentence of 20 months of incarceration to Ellis for procuring a person to have illicit sexual intercourse with another person ( s. 212(1)

a) Cr.C .). [ 20 ] The prosecutor insists on the fact aggravating factors are more important than mitigating factors and on the key principles of sentencing to be applied in such a case: denunciation and deterrence. [ 21 ] For the defence, this case is situated at the bottom of the ladder. The defence insists on mitigating factors and the possibility for the accused to reintegrate the society and respect the values of the society. [ 22 ] A fit sentence would be six months of detention concerning count number one. The defence refers the Court to R . c.

Dupuis [6] . [ 23 ] The submissions of both parties take into account the objectives of denunciation and deterrence who are so important in such a case. But they disagree on the duration of the detention and ask the Court to determine it. Purpose and principles of sentencing [ 24 ]

Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to contribute to the respect for the law and maintenance of a just peaceful and safe society by imposing just sanctions that have the following directives:

a) to denounce the unlawful conduct;

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

c) to separate offenders from society, when necessary;

d) to assist in rehabilitating offenders;

e) to provide reparations for harm done to victims or to the community and, finally,

f) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [ 25 ] A fundamental principle is also that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender ( s. 718.01 Cr.C .). [ 26 ] There are still others sentencing principles a count shall also take into consideration ( s. 718.2 Cr.C .): […] (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender […];

(

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; […] [ 27 ] Other principles enumerated by s. 718.2 are irrelevant in the case at bar. Determination of the appropriate sentence [ 28 ] The day of the trial, the accused entered a guilty plea for the following offences: Count number 1 Procuring 286.3

(1) Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years. Count number 2 Material benefit from sexual services 286.2

(1) Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(1), is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years. Obtaining sexual services for consideration 286.1

(1) Everyone who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person is guilty of […]. Count number 3 Advertising sexual services 286.4 Everyone who knowingly advertises an offer to provide sexual services for consideration is guilty of (

a) an indictable offence and liable to imprisonment for a term of not more than five years; […] [ 29 ] Fortunately for him, the indictment did not contain any charges regarding the alleged offence of s. 286.3 (2): procuring with a person under 18 years. This crime provides for a minimum punishment of imprisonment for a term of five years.

For the Crown, it was difficult to proof the accused knew the victim was 17 years old. [ 30 ] It happens that Parliament amends specific sections of the Criminal Code in order to bring them into compliance with the principles established by the Supreme Court of Canada. [ 31 ] In Bedford [7] , the Supreme Court of Canada found that former Criminal Code s. 212(1) (j), which criminalized living on the avails of prostitution of another person, was too broad. Accordingly, it had a negative impact on the security of the person, so it breached

section 7 of the Canadian Charter of Rights and Freedoms [8] . The Court expressed its concerns with the over broadness of the provision when it said the following: […] The law punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes (for example, controlling and abusive pimps) and those who could increase the safety and security of prostitutes (for example, legitimate drivers, managers, or bodyguards). It also includes anyone involved in business with a prostitute, such as accountants or receptionists.

In these ways, the law includes some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes. The living on the avails provision is therefore overbroad. [9] After the Court delivered Bedford, Parliament enacted Bill C-36 in 2014, the Protection of Communities and Exploited Persons Act [10] .

Section 286.3 operates as new law. When compared to former

section 212 of the Criminal Code [11] , one may notice that Parliament increased maximum imprisonment to 14 years, which translates into the will of making procuring an objectively more serious crime. [ 32 ] Both parties were unable to submit authorities similar to the case at bar and involving new sections of Criminal Code introduced by Bill C-36. The Court has carried out its own research to find that the case-law is practically non-existent in this province. [ 33 ] The Crown cited the following case R. v.

Ellis [12] : - victim age 22 years at the time; living with her family and employed; no previous experience with the sex trade; offender met victim at a party; soon started an intimate relationship; lured her into sex trade with money she could earn; offender groomed victim for sex trade;

took photos of her wearing lingerie and arranged ad to be placed on escort website; showed her how to answer calls and messages fromprospective clients and how to collect money and he told her what to charge; involved in sex trade with offender for three months;offender violent when victim wanted to leave sex trade; she stood up to him and left the relationship; she continued in the sex trade aftershe left him; global sentence 20 months. [34] In the case at bar, the situation of Mr.

Dubois is different : • the duration of the sex trade related offence is limited to nine days; • offender never been violent with the victim; • offender was not involved in an intimate relationship with the victim; • offender have not tried to prevent the victim to leave the sex trade. [35] Justice Gilmore took in consideration the range of sentence established by the Alberta Court of Appeal: [42] The Crown relies on R. v. Brown (citing R. v.

Foster)2 in which the Alberta Court of Appeal set out the types of circumstances thatwould support the range of sentence the Crown says is appropriate for both procuring and living off the avails of prostitution. At the highend of the range, warranting sentences of four to five years, are situations in which the offender has coerced the victim into becoming orremaining a prostitute and exercised a significant degree of control over the victim’s activities.

A mid-range sentence (two to three years)should be imposed where coercion is lacking but the offender relies on the victim’s earnings as his main source of income. Finally, at thelow end of 12 to 18 months are situations in which the offender receives money from the victim but the relationship is not an exploitive one.3 2 (1984), 1984 ABCA 204 , 54 A.R. 372, 13 C.C.C. (3d) 435 (C.A.). 3 Ibid at paras 22-23. [36] Although each case is a case in point, the Court considers the case of Mr.

Dubois is getting closer of the low end of 12 to 18months established by the Alberta Court of Appeal. [37] The defence invoked on old decision from our Court of Appeal: R. c. Dupuis[13]. In this case the Court of Appeal substitute asentence of six months of jail to a conditional sentence. One of the victims was 17 years old. The accused was a professor and was 39years old. It was a complex and effective operation. [38] Unfortunately, this decision does not make it possible to appreciate the mitigating and aggravating factors. It is also important tonotice the decision was made well before Bill C-36.

Sentences are more severe now. See, for example, R. v. Lucas-Johnson[14], adecision from the Superior Court of Ontario, where Justice Allen sentenced the offender to 12 months of custody[15], followed by a twoyears’ probation. Justice Allen admitted that this sentence was at the lower end of the range because of mitigating factors. These factorsincluded the fact that the victim had been involved in the sex trade previously so Mr. Lucas-Johnson did not lure her into activity she wasnot familiar with; she said it was her choice to get involved and she was excited about the prospect.

The offender had also completedhigh school, had three children and had been accepted at St. Mary’s University in Nova Scotia but could not attend because he wasarrested[16]. [39] In the case before me, the situation is quite different. Indeed, the accused introduced the victim into the world of prostitution.She did not willingly seek to get involved in the sex industry knowing the full consequences of her actions. [40] The weight of the aggravating factors milites in favor of a sentence exceeding six months of detention, but less than two years. [41] As reminder by Justice Gilmor in R. v.

Ellis[17]: [40] Denunciation and deterrence are the key principles of sentencing to be applied in this case. Procuring women for the purpose ofliving off their work as prostitutes is something that society strongly denounces.

That is, taking advantage of (usually) younger womenand putting them at risk for personal financial gain is reprehensible conduct and a strong message must be sent to those who engage insuch behaviour. [42] The objective of deterrence for the accused is paramount in this case because there is absolutely no trace of introspective intowhat he did and also because he abused a person under the age of 18 (s. 718.2 (a) (ii.1) Cr.C.). [43] The Court find an 18 months sentence with two years’ probation to be a fair sentence.

FOR THESE REASONS THE COURT: CONDEMNS the accused Stephen Dubois to serve a sentence of 18 months of jail concerning count number 1; CONDEMNS the accused Stephen Dubois to serve a sentence of 12 months of jail concerning count number 2, concurrently with countnumber 1; CONDEMNS the accused Stephen Dubois to serve a sentence of 4 months of jail concerning count number 3, concurrently with countsnumber 1 and 2; ORDERS that the accused Stephen Dubois comply with the following conditions prescribed in approbation order for a duration of two

years following the expiry of his sentence: • keep the peace and be of good behaviour; • appear before the Court when required to do so by the Court; • notify the probation officer in advance of any change of name or address, and promptly notify the probation officer of any change of employment or occupation; • report to a probation officer within two working days after the making of the probation order and thereafter when required by the probation officer and in the manner directed by the probation officer; • refrain from attending within 150 metres of A.

L. or at any place known to be the residence or school or place of employment of A. L.; • have no contact of any sort of with A. L.; ORDERS to comply with the Sex Offender Information Registration Act (s. 490.012 (1) and s. 490.013 (1)

(2) b) Cr.C .); ORDERS you to submit to samples collection of bodily substances that is reasonably required for the purpose of forensic DNA analysis ( s. 487.051

(2) Cr.C . ). __________________________________ CHRISTIAN M. TREMBLAY, J.C.Q. M e Jean-François Roy Crown attorney M e Éric-Pierre Fugère Defence attorney Dates of hearing: July 10, October 5 and 29, 2018