R. v. Finestone, 2017 ONCJ 22

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. CITATION: R. v. Finestone , 2017 ONCJ 22 DATE: February 7, 2017 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — SAGE FINESTONE Before Justice M. Greene Reasons for Sentence released on February 7, 2017

D. Moskovitz……………………………………………………………………….for the Crown W. Thompson and Samara Secter………….…………………………….…for Sage Finestone Facts of the Offence [ 1 ] Mr. Finestone and Ms. Robitaille are both charged with offences in relation to J.D., a 14 year old year girl. At the time of the offences, Mr. Finestone and Ms. Robitaille were dating. Ms. Robitaille also worked as a prostitute for Mr. Finestone. Mr. Finestone is not charged with any offences in relation to his working relationship with Ms.

Robitaille and no details were provided about the working relationship other than how it relates to the charges involving J.D. [ 2 ] On February 21, 2015, J.D., a 14 year old girl, was introduced to Mr. Finestone and Ms. Robitaille through a mutual acquaintance. J.D. met with Mr. Finestone and Ms. Robitaille at the Marriot Hotel at 90 Bloor Street West. Upon arriving at the hotel, Ms. Robitaille was asleep so J.D. socialized with Mr. Finestone. No details were provided about what this “socializing” entailed. [ 3 ] The following day, Mr. Finestone directed a third party named “Swiffy” to book a second hotel room.

Mr. Finestone then forced J.D. to engage in prostitution day and night. According to the agreed statement of facts, no violence or explicit threats of violence were used. No additional information about how J.D. was forced into prostitution was included in the agreed statement of fact, the Crown, however, in her factum wrote the following at paragraph 10 “That he did not use violence against her is not a mitigating factor as he targeted a young girl who was so vulnerable that he was able to control and coerce her by other means.

At first just by his attention and providing her with a place to stay that was not a group home…”. Ms. Robitaille and Mr. Finestone directed J.D. on what clothes to wear. Ms. Robitaille provided further instructions on how to act with customers, what type of services to perform, the definition of various terms and other relevant information on how to engage in prostitution. [ 4 ] Three days later, on February 25, 2015, Mr. Finestone moved J.D. to a new hotel where she was again forced to work as a prostitute. The income from J.D.’s forced prostitution went to pay for the hotel and expenses. [ 5 ] Mr.

Finestone posted an advertisement for J.D.’s services stating that J.D. was 19 years old. Over the course of the week that J.D. was under Mr. Finestone’s control, J.D. serviced approximately 20-30 clients with the sexual services including oral and vaginal sex. On one occasion no condom was used. Condoms and lubricant, however, were left in J.D.’s hotel room and available for her use. [ 6 ] While customers paid thousands of dollars for J.D.’s services, she was not permitted to set the price of her services or keep the money. All proceeds went to Mr. Finestone and Ms.

Robitaille. [ 7 ] On February 27, 2015, J.D. told Mr. Finestone that she was going out to meet her boyfriend. She was directed by Mr. Finestone to return by 6:00p.m. J.D. left as planned and returned with her boyfriend with the intention of packing up and leaving. Mr. Finestone directed a man named “Faria” to tell J.D.’s boyfriend to leave and to stand in the hallway outside of J.D.’s room to make sure that the boyfriend did not return. [ 8 ] At 9:00 p.m. on this same date, J.D. stated to another prostitute that she wanted to go home. J.D.’s mother offered to pay for a taxi to bring J.D. home.

Upon discovering this, Ms. Robitaille took J.D.’s cellular telephone from her and advised J.D. that she was not allowed to contact anyone. Mr. Finestone then unplugged the hotel room telephone and asked the hotel to block all calls to J.D.’s room. J.D. was then instructed to prepare for her next customer. Mr. Finestone left the room and Ms. Robitaille yelled at J.D. who by this time was crying and felt like a hostage who had no means of escape. Eventually Mr. Robitaille left the room, slamming the door on her way out.

A third person remained in the room with J.D. [ 9 ] Security, responding to a noise complaint, attended at J.D’s room moments later and found J.D. crying. J.D. told security that she

was under aged and was being forced to engage in prostitution. [ 10 ] During a police interview later that evening, while questioning Ms. Robitaille, Mr. Finestone stated to her “remember what we talked about”. After hearing this utterance, Ms. Robitaille ceased talking to the officer. Additional Aggravating Facts [ 11 ] In February, 2015, C.S., who was 16 years old at the time, began working for a man named Jonathan Taylor. Mr. Finestone and Mr. Taylor had been communicating about the sex trade during this time. C.S. met Mr. Finetstone and told him that she was only 16 years old. Mr. Finestone and Mr.

Taylor stated they would not work with C.S. but Mr. Finestone then directed Ms. Robitaille to tell C.S. that she would work for Ms. Robitaille privately. C.S. saw a number of customers. The following day, after moving hotels and seeing another customer, C.S. left. Additional Facts [ 12 ] On June 30, 2016, Mr. Finestone pled guilty to one offence of trafficking of a person under the age of 18 contrary to

section 279.011(1) of the Criminal Code . The mandatory minimum sentence for this offence is five years (section 279.011(1)(

b) of the Criminal Code) . [ 13 ] J.D. advised the police that she told Mr. Finestone that she was only 14 years old. Mr. Finestone denies this. Mr. Finestone states that J.D. told him she was 16 years old. The Crown chose to call no evidence to prove the aggravating factor that Mr. Finestone knew that J.D. was 14 as opposed to 16 years old. Victim Impact [ 14 ] The court is thankful to J.D for providing a victim impact statement. It is well recognized just how painful writing out such a document can be. The information provided by JD. is phenomenally helpful to the court. As a result of Mr.

Finestone’s conduct, J.D. suffers from low self-esteem and depression. Her innocence and childhood were taken away from her. While J.D.’s identify was protected by the courts, people in her community knew about the offence as a result, J.D. has suffered and continues to suffer from the public nature of her victimization. Like so many victims J.D. feels shame and responsibility for her own victimization. It is Mr. Finestone, however that is responsible for this, NOT J.D. At an age when J.D. should be enjoying first dates, and movies and school, because of Mr.

Finestone’s actions, J.D. is forced to contemplate whether or not she will ever have a “normal” life. [ 15 ] There can be no doubt that J.D. has suffered greatly because of Mr. Finestone’s actions and that she will continue to suffer for a long time. Circumstances of the Offender [ 16 ] Mr. Finestone at the time of the offence was 21 years old. Mr. Finestone suffers from alopecia which led to all of his hair falling out when he was a young person. The court was advised through reference letters what a strong effect this physical illness had on Mr. Finestone’s self-esteem and social life.

In addition to suffering from alopecia and the emotional trials attached to this physical ailment, Mr. Finestone also suffers from Asperger’s Syndrome (now identified as autism spectrum disorder), ODD, ADHD and a mood disorder. As a result of these physical and mental health issues, Mr. Finestone struggled as a young person. In a therapeutic report filed with the court, it was noted that as a result of this difficult childhood given his ongoing mental health and physical health issues, Mr. Finestone is easily swayed by peer pressure and engages in impulsive decision-making.

Some of the reference letters filed with the court identified

an additional struggle that Mr. Finestone faced as a young person. Mr. Finestone was adopted as a baby. Mr. Finestone is a person of colour and his parents are white. While it is clear that Mr. Finestone grew up with loving parents, he did at times struggle with his identity as a person of colour being raised by white parents. [ 17 ] Despite his ongoing mental and physical health issues, Mr. Finestone did manage to complete high school and has the support of many family members. Throughout his childhood, Mr. Finestone’s parents took steps to obtain the counselling and additional support that he needed.

Despite everyone’s best efforts, Mr. Finestone continued to struggle and at some point began using and then abusing drugs. [ 18 ] On consent of both parties, a number of reports were filed by Mr. Finestone speaking to his past psychiatric diagnoses and his ongoing mental health struggles. One of the reports was from Dr. Kevin Stoddart. He has a doctorate in social work and is the founding director of the Redpath Centre, a treatment center that works with persons suffering from Autism Spectrum Disorder (ASD). As a social worker Dr.

Stoddart is permitted to treat persons suffering from ASD he cannot, however, diagnose the illness. Only psychiatrist and psychologist are viewed as sufficiently skilled to make the diagnosis of ASD. Dr. Stoddart reviewed past psychological reports on Mr. Finestone where Mr. Finestone was diagnosed with Asperger’s Syndrome. Dr. Stoddart wrote in his report and testified at the sentencing hearing that Mr. Finestone has a clear and consistent history of Asperger Syndrome which is now known as Autism Spectrum Disorder. During cross-examination, the Crown attempted to minimize the impact of this diagnoses on Mr.

Finestone’s life by identifying specific attributes associated with those diagnosed with ASD that were not found recently in Mr. Finestone. Despite the absence of some symptoms or characteristics of ASD, Dr. Stoddart testified that there was no basis to second guess the diagnosis and that during all of his treatment sessions with Mr. Finestone, his observations were consistent with someone suffering from ASD. I accept Dr. Stoddart’s evidence on this point. [ 19 ] Mr. Finestone readily admitted to Dr.

Stoddart that his involvement in this offence was linked to his addiction to a lifestyle where he had power, money and flash. To that end, the Crown properly characterizes this offence as greed based. While I accept that greed was one of the reasons Mr. Finestone committed his offence, I also accept that his motivations were a bit more complicated than just greed. Dr. Stoddart wrote in his report and testified at the sentencing hearing that Mr. Finestone’s need to have the “flash” and clothes are linked to Mr. Finestone’s feeling of insecurity relating to his alopecia. Moreover, Mr. Finestone’s ASD causes Mr.

Finestone to fixate and develop obsessions in a manner not found in those that do not suffer from this mental illness. According to Dr. Stoddart, it was Mr. Finestone’s addiction to his lifestyle that led to the commission of this offence and this addiction was in

part linked to his diagnosis of ASD which gave him a reduced resistance to addictions and obsessions. [ 20 ] According to the reports filed with the court, during his youth, Mr. Finestone engaged in different therapies for his mental illness. Despite the best efforts of his parents, none of the programs proved to be completely successful and Mr. Finestone continued to struggle through his late teen years. [ 21 ] As previously noted, numerous letters of support were filed from family members and friends. All speak to the troubles Mr.

Finestone suffered as a young person because of his Asperger’s Syndrome, his mood disorder, his oppositional defiance disorder, his alopecia and the fact that Mr. Finestone, a person of colour, was adopted and raised in a white family. [ 22 ] Since his arrest, Mr. Finestone has made great strides to address his underlying mental health issues, his addictions and to improve his self-awareness and self-control. From June 17, 2015 until October 1, 2015, Mr. Finestone attended the residential treatment program called “Caratis School of Life”. Due to concerns with the therapeutic value of this program, Mr.

Finestone left the program on October 1, 2015. On February 8, 2016, Mr. Finestone started with the Vita Nova residential treatment program. Mr. Finestone remained at Vita Nova for approximately 9 months. He did very well at this program. His treatment focused on his issues surrounding his adoption, drug use, alopecia and guilt over this offence. [ 23 ] Mr. Finestone also engaged in therapy and education to help him understand and appreciate the extent of the harm his criminal actions caused. As part of his therapy he reviewed literature on the harm caused by prostitution including an

article that provided first person accounts of 23 prostitutes and examined the psychological and social issues attached to prostitution. Mr. Finestone also engaged in written exercises designed to enhance empathy. The reports indicate that those suffering from Asperger’s Syndrome have a difficult time appreciating the impact of their actions on others. Through these sessions Mr.

Finestone appears to have gained empathy and understanding about the emotional toll his behaviour had and continues to have on his victim. [ 24 ] The addiction counsellor from vita Nova, Joanne Charmet, wrote in a letter dated July 25, 2016 confirming that Mr. Finestone is fully engaged with his treatment and his education.

[ 25 ] Dr. Stoddart further testified that Mr. Finestone, since his arrest, displayed an ability to disengage with his criminal life and appeared to be committed to his treatment. Issues [ 26 ] Mr. Finestone faces a minimum sentence of 5 years. Counsel for Mr. Finestone argued that the minimum sentence for trafficking a person under the age of 18 is unconstitutional as it violates

section 12 of the Charter . Counsel for Mr. Finestone argued that a five year sentence is grossly disproportionate to what would normally be a fit sentence in this case. He further argued that applying a reasonable hypothetical, the sentence of five years could reasonably lead to a grossly disproportionate sentence. Counsel for Mr. Finestone argued that should the court find that the minimum sentence is unconstitutional, a sentence of 2 to 2 ½ years should be imposed. [ 27 ] Crown counsel urged the court to refuse to entertain the constitutional argument. She argued that the fit sentence for Mr. Finestone is five years or more and as a result, given the fact that I cannot declare the

section invalid, judicial economy demands that I refuse to entertain the argument. It was the position of the Crown that if I nonetheless decide to engage in an analysis of the constitutionality of the minimum sentence, I should find that it is constitutional. Should the Court Engage in the Constitutional Analysis? [ 28 ] Provincial court judges have no jurisdiction to make formal declarations that a law is of no force or effect under s.52(1) of the Constitution Act .

Provincial court judges do, however, have the authority to determine the constitutional validity of a mandatory minimum sentence when the issue arises in a case they are hearing ( R. v. Lloyd , 2016 SCC 13 at para 16 ). While provincial court judges do have this authority, it is open to the court to refuse to address the constitutional argument where it would have no impact on the offender before the court. McLachlin C.J.C. stated at paragraph 18 of R. v.

Lloyd , supra , To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. Bur a formalistic approach should be avoided. [ 29 ] It follows, that I must first assess what sentence might be appropriate in the case at bar.

If it potentially falls below the mandatory minimum sentence, then, in my view, this court should assess the constitutionality of the provision. What Range of Sentences Would be Appropriate but for the Mandatory Minimum Sentence? General Sentencing Principles [ 30 ] The overarching principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is best determined by considering all the aggravating and mitigating factors while keeping in mind the objectives of sentencing which include:

a) General and specific deterrence

b) Denunciation

c) Rehabilitation

d) Reparation to society and/or the victim

e) Separation from society where necessary

f) The need to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.

Generally, the Criminal Code does not place these objectives in any hierarchy of importance. How much weight a sentencing judgeplaces on any given objective will depend on the facts of each case. As our society has become more and more aware of the damagingeffects of child sexual abuse and child exploitation and the need to protect children from predators, the criminal justice system hasresponded. Pursuant to

section 718.01 of the Criminal Code, where a person is being sentence for an offence involving the abuse of aperson under the age of eighteen years old, primary consideration is to be given to the objectives of denunciation and general deterrence. [31] In recent years the Appellate courts have consistently maintained that in sentencing child sexual offenders and predators theobjectives of general deterrence and denunciation are paramount. In R. v.

Woodward 2011 ONCA 610, Justice Muldaver stated, atparagraphed 76, In so concluding, I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children,the focus of the sentencing hearing should be on the harm caused to the child by the offender’s conduct and the life-alteringconsequences that can and often do flow from it.

While the effects of a conviction on the offender and the offender’s prospects forrehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predatorsfrom society for society’s well-being and the well-being of our children must take precedence. [32] In R. v. D.D., (ON CA), [2002] O.J. No. 1061 (CA), the leading authority in Ontario on sentencing child sexualabuse, the court clearly stated that the focus on sentencing these types of offenders must be on denunciation, deterrence and protection ofthe public.

The court stated at paragraph 34, The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfytheir deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, theobjectives of sentencing proclaimed by Parliament in s.718(a), (

b) and (

c) of the Criminal Code, commonly referred to as, denunciation,general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognizedobjectives of sentencing. [33] I am mindful that the above cases involved findings of guilt for sexual assaults on a young person, but the offence of humantrafficking when it involves forced prostitution of a young person is a sexual assault. I therefore find that the comments outlined aboveare applicable to this case. I note that Justice Wien in R. v. A.A., [2012] O.J.

No. 6526 (S.C.J.) likened pimps to child molesters andabusers. Therefore, in sentencing Mr. Finestone I must focus primarily on the objectives of deterrence and denunciation. In sentencing Mr. Finestone the court must also be mindful of the harm caused by those that traffic in young girls. This is relevant toboth the specific inquiry about the appropriate sentence but also to the broader constitutional question. In R. v. Nur, 2013 ONCA 677, [2013] O.J.

No. 5120 (C.A.) affirmed by the Supreme Court of Canada in R. v Nur, 2015 SCC 15 , [2015] 1 S.C.R.773, Doherty J. held that in assessing the appropriate sentence, the court must consider the harm targeted by the elements of the crimeand the moral culpability required to establish guilt for the crime (paras 83-87). There can be no doubt that severe harm is caused evenby the least serious cases of child trafficking. As Warkentin J. held in R. v. Byron, 2014 ONSC 990 , [2014] O.J. No. 723 (SCJ)at paragraph 36, All cases of this nature must be taken seriously.

Young people must be protected from being trafficked, exploited and abused in thisfashion. Sadly, in an era of social media and the use of the internet, the on-line advertisements for sexual services continually victimizethose who have been forced into prostitution against their will because it is impossible to remove those images from the internet. This isparticularly tragic when the individual is a minor, as was IB [34] The horrors and evils of prostitution, especially when young persons are involved, are well documented and beyond dispute. Asjustice Trotter noted at paragraph 10 of R. v.

Burton, 2013 ONSC 3021 , [2013] O.J. No. 2423 (S.C.J.), The social ills and dangers associated with prostitution and juvenile prostitution in particular, are well-recognized and accepted by socialscience and reflected in the legal literature. [35] In light of all these comments, it is clear that the focus of any sentencing for offences arising from the sexual exploitation ofchildren, even the sentencing of youthful first offenders, has to be on denunciation and general deterrence. Aggravating and Mitigating Factors

[36] In R. v. Tang, 1997 ABCA 174 , [1997] A.J. No. 460 (C.A.) and R. v. Miller, [1997] O.J. No. 3911 (SCJ), the courtsarticulated a number of factors that serve as a guide in assessing the aggravating factors as they relate to the offence. It is useful toconsider each of these factors in assessing the gravity of the offence in the case at bar.

a) Degree of coercion or control by Mr. Finestone on J.D. [37] The agreed statement of fact states that the victim was forced into prostitution. As noted previously, no details were provided aboutwhat was done to force the victim into prostitution except that explicit threats and violence were not used. In the Crown’s factum, shewrote that the victim was vulnerable and that Mr. Finestone was able to coerce her into prostitution by just paying attention to her andproviding her a place to stay.

I draw from this that the coercion involved related to manipulation of a vulnerable young person asopposed to explicit or even implied threats or violence. Therefore, while coercion was clearly involved with procuring J.D. intoprostitution, the degree of coercion is at the very low end. The amount of coercion increased substantially, however, during the last fewhours of the offence when J.D. started to express a desire to leave. At that point, Mr. Finestone would not allow J.D. to communicatewith others, placed someone outside her room to ensure her boyfriend did not return and took away her telephone.

Fortunately the noisein her room attracted attention and led to police involvement and as a result this heightened degree of control did not last long. TheCrown in her factum wrote “It is not hard to imagine that had she not come to the attention of hotel security that the appellant may haveescalated things further”. It is not appropriate, in my view, for me to engage in speculation as to what might have occurred had securitynot arrived. There is no evidence, however, that but for the police arriving that Mr.

Finestone would have stopped forcing J.D. to workas a prostitute. [38] As to the degree of control used by Mr. Finestone over the victim, there is no suggestion that during the first 5 ½ days that thevictim was working for Mr. Finestone and Ms. Robitaille that she was not permitted to leave the hotel, her room or contact people. During the last few hours, these movements were significantly controlled. [39] While there was little control over the victim’s movements during the first 5 ½ days of the offence, Mr. Finestone did exert controlin other ways. He had complete control over her work environment. Mr.

Finestone and Ms. Robitaille selected the customers, decidedthe price, controlled when J.D. worked and what sexual acts would be performed. Moreover, the victim did not know prior to the arrivalof the customer what sexual services she would be required to provide.

b) The amount of money received by Mr. Finestone and the victim [40] The Court was not advised exactly how much money was made. The agreed statement of fact states that the several thousanddollars was earned over the six days. It is clear, however, that the victim saw numerous clients and that she did not receive any of themoney. All the money went to Mr. Finestone and Ms. Robitaille.

c) The age of the victims and number of victims. [41] The victim in the case at bar was 14 years old, although Mr. Finestone thought she was 16. While Mr. Finestone pled guilty to oneoffence involving one victim, he did admit as an aggravating factor that he had some limited involvement with a second underage victim. In my view these are meaningful aggravating factors.

d) The working conditions and health safeguards [42] All the sexual acts occurred in a hotel room. Condoms were provided, although on one occasion the victim engaged in sexualintercourse with a customer and a condom was not used. There is no evidence before the court that Mr. Finestone ordered this, knewabout it or had any role in it. Mr. Finestone did, however, place advertisements on line for J.D.’s services and did not specify anyrestrictions. There is no suggestion of any other type of risky behavior (other than the inherent risks attached to prostitution).

e) Vulnerability of the victim. [ 43 ] In the case at bar, the victim was a young person living in a group home. This, in my view, makes her vulnerable.

f) The degree of planning, sophistication and size of organization [ 44 ] Mr. Finestone worked in conjunction with Ms. Robitaille to pimp out the victim in this case. Ms. Robitaille was a prostitute herself. She was in love with Mr. Finestone and worked for Mr. Finestone. The agreed statement of fact references other people working alongside Mr. Finestone and on one occasion Mr. Finestone issuing a direction to a Mr. Faria (whose girlfriend was also a prostitute) and on another occasion issuing a direction to another person to book a hotel room.

Nonetheless, when the agreed statement of fact is considered as a whole, in my view this was a small operation, with little planning involved and was not a sophisticated project.

g) The duration of the exploitative conduct [ 45 ] The duration of the exploitive conduct was six days. During this time the victim was forced to service 20-30 men.

h) The degree of violence, if any, apart from that inherent to the pimp’s parasitic acts [ 46 ] No explicit threats were made, no implied threats were referenced in the agreed statement of fact and no actual violence was used.

i) The extent inducements were used [ 47 ] No inducements were referenced in the agreed statement of fact. I note, however, that in her factum the Crown wrote that J.D. was forced into prostitution by the inducement of a place to stay. There is no actual evidence before the court, however, of an inducement other than this passage from the Crown’s written argument.

j) The effect on the victim [ 48 ] As noted above this offence had a huge impact on the victim. She lost her childhood and her innocence. She was violated day and night for six days.

k) The extent to which the pimp demanded sexual favours from the victim [ 49 ] Mr. Finestone did not engage in any sexual acts with the victim. [ 50 ] In light of the above facts, it is clear that there are a number of aggravating factors in the case at bar which clearly place this offence outside the lower end of the offending conduct captured by this offence where it involves forced prostitution as opposed to other non- sexual forced labour. Some of the more meaningful aggravating factors include the age and vulnerability of the victim, Mr.

Finestone’s involvement with a second under-aged victim (albeit he decided not to pimp her out directly), the harm suffered by the victim, the fact that Mr. Finestone exerted complete control over the work environment, the number of client’s that J.D. was forced to service, the fact that Mr. Finestone worked with others, Mr. Finestone was able to direct others to do certain acts in furtherance of exploiting J.D., and the increase in control and coercion during the last few hours of the offence. It is equally clear, however, that the offending conduct is not on the higher end.

No violence or threats were used, there was limited coercion during the first 5 ½ days, the duration was only six days, it was not a sophisticated scheme, Mr Finestone did not engage in any sexual activity with the victim and no inducements like drugs or alcohol were used. There are, however, no mitigating factor to attach to the offence itself, only an absence of some aggravating factors.

[51] The court is also required to consider not just the gravity of the offence but also the circumstances of the offender. There are noaggravating factors to attach to Mr. Finestone’s personal circumstance. There are numerous mitigating factors:

a) Mr. Finestone is a youthful;

b) Mr Finestone has no criminal record;

c) Mr. Finestone is remorseful for his conduct;

d) Mr. Finestone is taking responsibility for his actions;

e) Mr. Finestone has entered a plea of guilty;

f) Mr. Finestone has been actively engaging in counselling and residential treatment in order to address his criminality;

g) Mr. Finestone had some real difficulties as a child which are linked to his mental health issues and his alopecia;

h) Mr. Finestone has strong family support; and,

i) Mr. Finestone has very good rehabilitative prospects. [52] In addition to these mitigating factors, defence counsel also urged the court to find that Mr. Finestone’s diagnoses of AutismSpectrum Disorder further serves to mitigate his circumstances as it played a contributing role in the offence before the court. Crowncounsel argued that Mr. Finestone is on the high functioning end of this disorder (if he suffers from it at all), that it minimally affectshim and that it played no role in the commission of this offence. Mr.

Finestone’s actions were motivated by greed and greed alone. [53] An offender’s struggles with a mental disorder can be a mitigating factor on sentence where that disorder or disability can becausally linked to the offending conduct (R. v. Robinson, (ON CA), [1974] O.J. No. 545 (C.A.). [54] On the record before me, Mr. Finestone was diagnosed with Asperger’s Syndrome when he was a young person as well someadditional disorders. This diagnosis was confirmed by more than one practitioner. In recent years, the label “Asperger’s Syndrome” hasbeen vacated by those tasked with labelling mental illnesses.

In the DSMV, Asperger’s Syndrome and Autism Disorders were joined tocreate one illness of Autism Spectrum Disorder. [55] Dr. Stoddart testified that a new assessment is not required and that all persons diagnosed with Asperger’s Disorder aregrandfathered into this new disorder. He allowed for the reality that some people, if re-tested, may no longer meet the diagnosticcriteria. Dr. Stoddart also readily agreed that Mr. Finestone does not meet every single characteristic of a person suffering from ASD. He nonetheless testified that from his experience in working with Mr.

Finestone, the diagnosis was still appropriate. Dr. Stoddard,advised the court, however, that he is not permitted to make diagnoses. The most he could testify to is that he works with many patientsthat suffer from ASD and that in his treatment of Mr. Finestone, he saw nothing to suggest that the diagnosis was inaccurate. [56] The fact of the disorder itself, however, is not necessarily mitigating. To be mitigating the mental disorder must be causally linkedto the offending conduct. To that end, Dr. Stoddart made the following observations and conclusions in his report: Mr.

Finestone experienced difficulty in his childhood and youth with impulsive behaviours, peer relationships, highly focused obsessionsand mood regulation. These traits, in combination with lack of treatment and close adult supervision at this transitional period in his life,predisposed him to unlawful behaviours Dr. Stoddart further wrote at page 5 of his report, Although Mr. Finestone is of the age when adults would naturally be more skilled at avoiding self-destructive social situations. Mr.Finestone continues to demonstrate that he is significantly delayed in this respect.

In fact, the diagnostic criteria for Autism SpectrumDisorder, a life-long developmental disorder necessitates that: “Symptoms cause clinically significant impairment in social, occupational,or other important areas of current functioning.” This emphasizes that the effects of the disorder, and associated symptoms, has and willcontinue to impair normal adult functioning. Mr. Finestone clearly continues to suffer from the impairments of Autism and thoseconditions associated with it.

[ 57 ] When I consider the uncontradicted evidence of Dr. Stoddart, the observations made by friends and family of Mr. Finestone as recorded in their reference letters, and the letter from Julia Zikman, social worker, I find that the defence has established a causal link between Mr. Finestone’s ongoing mental health issues and this offence. As noted by Dr. Stoddart, Mr.

Finestone’s mental health issues in combination with a lack of treatment during the transitional period in his life “predisposed him to unlawful behaviours”. [ 58 ] While I find that there is a sufficient causal link to allow the court to consider Mr. Finestone’s mental disorder as a mitigating factor, I accept that it was not the only factor causing Mr. Finestone to commit this offence and nor can I conclude that it was the main factor causing Mr. Finestone to commit this offence. Mr.

Finestone’s difficulties as a child arising from his physical ailment and his mental health issues while relevant and provide a context for Mr. Finestone’s conduct, I agree with Crown counsel that greed was also a factor. Range of sentences normally imposed [ 59 ] There are very few reported cases addressing the appropriate sentence for human trafficking offences of young girls. There are, however, a number of sentencing decisions for living off the avails of young girls and procuring young girls into prostitution.

Given the similarity between these offences, in my view, the best way to assess the general range of sentences for the offence before the court, is too look at sentences imposed for a broader range of offences that includes similar conduct. [ 60 ] In R. v. Miller , [1997] O.J.

No. 3911 (SCJ) where the defendant was convicted of numerous counts of living off the avails of prostitution, Hill J., referencing English jurisprudence, identified a helpful guide to assessing the general range of sentences that should be imposed depending on the presence or absence of certain aggravating factors for offenders who engage in pimping. These categories, are merely guides and to some extent are of limited utility because they relate to persons found guilty of living off the avails of adult prostitutes as opposed to child prostitutes.

There can be no doubt that this range would be greater for those pimping under-aged victims. Hill J. stated, at paragraph 39, The court, in Tang, noted the usefulness of the guideline categorization of the living off the avails offence by Dr. D.A. Thomas, Principles of Sentencing, 2 nd ed. (1970) at pp. 130-3: In the first: Sentences within the bracket of four to five years are usually approved where the offender has coerced the woman concerned into becoming or remaining a prostitute, and has exercised a significant degree of control over her activities.

In the second category: Where the element of coercion is lacking but the offender relies on the earnings of the woman as his main source of income, the appropriate sentence is more likely to be within the range of two or three years imprisonment. In the third category: Sentences in the lowest bracket, between twelve and eighteen months imprisonment, are likely to be found where the offender receives money from his woman concerned but the relationship cannot be characterized as one of exploitation. Mr.

Finestone does not fall into the lowest bracket where a sentence of 12-18 months is generally imposed, nor does Mr. Finestone fall squarely into the second category as it was conceded in the agreed statement of fact that J.D. was “forced” into prostitution. While no violence was used, the word “forced” indicates that some coercion was involved. Moreover, in my view, the acts of Mr. Finestone in conjunction with Ms. Robitaille during the last few hours of the offence can readily be labelled as coercive.

The third and most serious category where the range is four to five years, to a large extent reflects the gravity of the offence before the court. Though to the extent that Mr. Finestone fits into this category, he would be at the very low end, given the lack of violence, the limited coercion used and the fact that while Mr. Finestone did control J.D.’s work environment he did not otherwise control her movements until the last few hours of the offence.

There is no evidence before the court that allows me to conclude beyond a reasonable doubt that J.D. was not permitted to leave the hotel and contact her friends and family until the last day when the police arrived. As noted above, these categories, while a helpful guide, do not take into account the fact that J.D. was 14 years old. Similarly, they take into account the extensive mitigating factors present in the case at bar. [ 61 ] In R. v. Miller, supra , Hill J. imposed a sentence of 22 months for ten counts of living off the avails of prostitution.

In many respects the facts of Miller are far less aggravating in that the victims were all adults. Having said that, in Miller there were many victims, the duration of the offending conduct extended well over a year, the offender made a substantial amount of money off the victims and he committed actual acts of violence against some of his victims.

[62] In R. v. Badali 2016 ONSC 788 (SCJ), after declaring that the minimum sentence for the offence of living off the avails ofprostitution was unconstitutional, Justice Glass imposed a 3 year sentence on Mr. Badali; two years for the offences of procuring andliving off the avails of prostitution where the victim was 16 years old and one year consecutive for obtaining the sexual services from aperson under 18. The trial judge found, after a trial, that Mr.

Badali procured this young victim into prostitution with the promise ofmoney, he engaged in a sexual act with the 16 year old victim, he took a portion of her earnings and fined his victims if they were late forwork or failed to clean their rooms as he saw fit. He did not, however, dictate the kinds of services the victims must provide. Furthermore, it appears that the trial judge accepted that the victim told Mr. Badali that she was 19 years old. The police discovered theoffence after the young victim had been working for Mr. Badali for three days.

In upholding the three year sentence, the Court ofAppeal commented on the youthful age of the victim, the fact that Mr. Badali procured her into engaging in prostitution and that Mr.Badali had a criminal record that included convictions for forcible confinement extortion and uttering threats (R. v. Badali, [2016] O.J.No. 4799 (CA). In many respects the facts in Badali are less aggravating than the facts in the case at bar in that Mr.

Badali thought thevictim was 19 years old, the victim was 16 years old not 14 years old, the victim had greater control over her work environment, thevictim was told to use condoms (as opposed to condoms just being made available), the victim retained some of the profits from herprostitution, at no point did Mr. Badali attempt to limit his victim’s ability to contact people or apply overt coercion to compel her toremain at work and, there was only one under-aged victim. Having said that, Mr. Badali had a trial, had a prior criminal record and hadnot displayed any signs of remorse. [63] In R. v.

Nakpangi, [2008] O.J. No. 6022 (SCJ) a total sentence of five years was imposed on an offender who committed the offenceof human trafficking on a person under the age of 18 and a related offence in relation to a second young person. There were numerousaggravating factors in the Nakpangi case that are not present in the case at bar including actual acts of violence and threats of violence,providing false identification to one of his victims and the fact that in Nakpangi the offence took place over two years.

It is difficult toinfer an appropriate range of sentence from this case alone since it was this sentence that in part motivated Parliament to institute themandatory minimum of five years. Moreover, given all the case law, it is difficult to imagine a sentence of less than 5 years beingimposed today on Mr. Nakpangi even if there was no minimum sentence. [64] In R. v. S.(R.R.), 2016 ONSC 2939 , [2016] O.J. No. 2411 (SCJ), a sentence of five years was imposed for humantrafficking and other related offences.

The gravity of the offence in S.(R.R.), however was far more serious than the gravity of theoffence in the case at bar and, S.(R.R.) did not have any of the mitigating facts that are present in Mr. Finestone’s case. Firstly, S.(R.R.)had a lengthy criminal record that included a number of convictions for violence against women. He also had no interest in treatment orin addressing his criminality. Secondly, S.(R.R.) threatened his victim, and physically assaulted her on more than one occasion. Hechoked, dragged and slapped the victim.

Thirdly, the duration of the offence was substantially longer lasting four months instead of sixday. I do note, however, that the victim in R. v. S(R.R.) was over the age of 18 which is a relevant factor in assessing the gravity of theoffence. Nonetheless, given all the other aggravating factors and absence of mitigating factors it is difficult to conclude that Mr.Finestone and S.(R.R.) should receive the same sentence. [65] In R. v. Byron, 2014 ONSC 990 , [2014] O.J. no. 723 (SCJ), a sentence of six years was imposed where the gravity of theoffence was far more aggravating than the offence in the case at bar.

While the victim in Byron was 17 years old, the duration andextent of the exploitation far exceeds what took place in Mr. Finestone’s case. The victim in Byron was forced to service over 100 menover many months, was moved to multiple cities by Byron to further her prostitution, she was threatened and assaulted by Byron, and hedestroyed her health card. Moreover, nude photographs of the young victim were posted on-line. Mr. Byron was not a youthful firstoffender and was on a judicial interim release at the time that he committed the offence of human trafficking.

In addition to theseaggravating factors very few mitigating facts were put before the court. Mr. Byron had a trial, did not take responsibility for his conductand did not show any sign of remorse for his conduct. [66] In R. v. K.B., (ON CA), [2004] O.J. No. 1146 (C.A.), the Court of Appeal reduced an eight year sentence to asix and a half year sentence for an offender who was convicted of a number of offences where he pimped and preyed on young peoplefor his own financial gain.

While the court reduced the overall sentence imposed, the Court of Appeal took no issue with the five yearminimum sentence being imposed on K.B. for his actions of living off the avails of prostitution in relation to a 12 year old victim, whereshe engaged in only one act of prostitution. Additional aggravating facts in that case included that K.B., a man in his 20s offered to bethe 12 year old victim’s boyfriend and they lived together for two weeks. Moreover, when the victim indicated that she did not want tocontinue working as a prostitute, K.B. slapped her and pushed her on the bed.

Moreover, K.B. was convicted of living off the avails of a16 year old girl whom had also been his girlfriend and of attempting to procure a 15 year old girl into prostitution. The Court of Appealheld that a global sentence of six and a half years was appropriate for all these offences. While the court commented that there was somehope for K.B.’s rehabilitation, he did have a prior, albeit dated, record, he did not have a pre-existing mental illness and he had notengaged in the same level of rehabilitation that Mr. Finestone has engaged in. [67] In R. v. Tang, [1997] A.J.

No. 46 (CA), a total sentence of six years was imposed on Mr. Tang: five years for living off the avails ofprostitution and one year consecutive for keeping a common bawdy house. In many respects the facts in Tang are more aggravating thanthe facts in the case at bar. Firstly, Mr. Tang exercised control over two young girls aged 13 and 14. Secondly, substantial planningwent into his operation and the trial judge found it was a sophisticated operation that went on for six weeks. Thirdly, Mr. Tang extractedsexual services from his victims. Mr. Tang, like Mr.

Finestone had no criminal record and did not engage in any gratuitous violence. The Court of Appeal commented that but for the mitigating factors a higher sentence would have been appropriate.

[68] All these cases seem to suggest that but for the minimum sentence, when one considers the aggravating and mitigating facts in thecase at bar, a sentence slightly lower than five years but higher than three years would be appropriate. Given this finding, in my view itis appropriate for this court to address the constitutionality of the section. Test for Infringement of S.12 of the Charter [69] The law is clear. Judges are not to easily interfere with minimum sentences. The courts have set a very high bar for what types ofsentences constitute cruel and unusual punishment. A mandatory minimum sentence will only be considered cruel and unusualpunishment and therefore violate

section 12 of the Charter where the minimum sentence is grossly disproportionate to the offence andits circumstances. [70] Grossly disproportionate is a high standard. To be considered grossly disproportionate, the sentence “must be more than merelyexcessive. The sentence must be ‘so excessive as to outrage standards of decency: and disproportionate to the extent that Canadianswould find the punishment abhorrent or intolerable”. (See R. v. Ferguson (2008) 2008 SCC 6 , 228 C.C.C. (3d) 385 (S.C.C.) atpara 14 ).

The court “should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation”(see R. v. Nur, 2015 SCC 15 , [2015] S.C.J. No. 15 at para 39). [71] In R. v. Lloyd, 2016 SCC 13 , [2016] S.C.J. No. 13 at para 45, the Supreme Court of Canada stated, It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties whichmay be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct as criminaland in determining proper punishment.

While the final judgment as to whether a punishment exceeds constitutional limits set out by theCharter is properly a judicial function, the court should be reluctant to interfere with the considered views of Parliament and then only inthe clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offencesas to outrage standards of decency. In R. v. Morrissey 2000 SCC 39 , [2000] 2 S.C.R. 90 at paragraph 26, the Court stated, Where a punishment is merely disproportionate, no remedy can be found under

section 12. Rather, the court must be satisfied that thepunishment imposed is grossly disproportionate for the offender, such that Canadians would find the punishment abhorrent orintolerable. As I said in Goltz, at p. 501, “the test is not one which is quick to invalidate sentences crafted by legislators [72] All these cases make it very clear that the standard for gross disproportionality is a stringent one. This is necessary because it is notthe place of a trial judge to second guess the wisdom of Parliament.

There is a strong argument that judges should be ever more hesitantabout finding mandatory minimum sentences as they relate to offences involving sexual violence against children unconstitutional. Thisis because the objectives of mandatory minimums mirror the general objectives of sentencing such offenders. The appellate courts haveconsistently held that in sentencing offenders who sexually abuse young persons the objectives of deterrence and denunciation areparamount. Similarly, mandatory minimum sentences highlight the objectives of deterrence and denunciation over other objectives ofsentencing.

McLachlan C.J.C. stated in R. v. Nur, supra, at para. 44, Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence,the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts ofthe ability to tailor proportionate sentences at the lower end of the sentencing range.

They may, in extreme cases, impose unjustsentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle ofproportionality. They modify the general process of sentencing which relies on the review of all relevant factors in order to reach aproportionate result. They affect the outcome of the sentence by changing the normal judicial process of sentencing,

[ 73 ] If personal circumstances and other objectives of sentencing play a lesser role in sentencing child sexual offenders, then it is less likely that a mandatory minimum sentence for such offences will be unconstitutional. Is the sentence I would impose on Mr. Finestone grossly disproportionate to the mandatory minimum? [ 74 ] The first step in assessing whether

section 279.011(1)(

b) violates

section 12 of the Charter, is to determine whether the sentence I would have otherwise found to be a fit and proportionate sentence is grossly disproportionate to the 5 year mandatory minimum. As I noted above, absent the minimum sentence, a sentence over three years but less five years would be appropriate in this case. I cannot conclude that a five year sentence is grossly disproportionate to what I would have otherwise imposed. [ 75 ] Mr. Finestone took advantage of a vulnerable 14 year old girl. He used her vulnerability to force her into prostitution for his own material gain.

When the victim showed signs of wanting to leave, he increased the level of control over her by removing her means of contact with the outside world. The victim will be forever harmed by Mr. Finestone’s acts. Moreover, Mr. Finestone was also involved to some extent with the exploitation of a second under-aged victim. Will the public find a sentence of five years in this case intolerable? Will it outrage their standards of decency? I do not think so. [ 76 ] Ms. Moskovitz argued that “pimps are the parasites of our society”. Justice Wein, in R. v. A.A., [2012] O.J.

No. 6256 (S.C.J.) stated that pimps are the “lepers of both the underworld and the decent world”. Given this description of the average pimp, it is difficult to imagine that the imposition of a sentence a year to 18 months more than what would otherwise be imposed would outrage society’s standard of decency. I therefore cannot find, using Mr. Finestone’s offence and personal circumstances that the mandatory minimum sentence of 5 years violates

section 12 of the Charter. Reasonable Hypothetical [ 77 ] The next step in the analysis is to consider whether using a reasonable hypothetical, a sentence of five years would be grossly disproportionate to what would otherwise be a fit sentence for the offence. [ 78 ] The inquiry under this stage, must focus on “reasonable hypothetical circumstances, as opposed to far-fetched or marginally imaginable cases” ( R. v. Nur, supra, at para 54). To be a reasonable hypothetical, the fact pattern suggested must be a “reasonably foreseeable situation where the impugned law may apply” ( R. v. Nur,supra, at para 58).

The court looks to facts that can reasonably arise and will reasonably be caught by the section. McLachlan C.J.C. stated in R. v. Nur, supra, at para 68 , The reasonable foreseeability test is not confined to situations that are likely to arise in the general day-to-day application of the law. Rather, it asks what situations may reasonably arise. It targets circumstances that are foreseeably captured by the minimum conduct caught by the offence. Only situations that are “remote” or “far-fetched” are excluded [ 79 ] In assessing what conduct might reasonably be caught under

section 279.011(1) , the court is guided by recent judicial

interpretations of this provision. In R. v. Beckford, [2013] O.J. No. 371 (S.C.J.) , the court held that this provision requires a heightened mens rea that includes not just the intention to commit the operational conduct but also that the conduct be committed for the purpose of exploiting a young person or for the purpose of facilitating the exploitation of a young person. Persons who indirectly contribute to the trafficking of persons without the requisite intent will not be captured by this provision (at paras 35-36). [ 80 ] The essential elements of

section 279.011(1) include the following

a) The conduct which includes recruiting, transporting, receiving, holding, concealing, harbouring, or exercising control, direction or influence over the victim;

b) The victim is under the age of 18;

c) The accused intended to engage in the prohibited conduct for the purpose of exploiting that person OR for the purpose of facilitating the exploitation.

[ 81 ] The first hypothetical put forward by the Applicant relates to a young relative being forced to work for the family business instead of visiting with his friends. The compulsion in his hypothetical arises from the fact that the young person is a new immigrant and the relative is his sponsor. The relative in the hypothetical threatens to withdraw his sponsorship if the young person does not provide free labour in the family business.

In my view, this hypothetical arguably would not meet criminal muster since the purpose of forcing the young person to work could reasonably be linked to promoting family values, to be part of the family and community and to teach skills. Given the high level of mens rea required by this section, in my view the facts enunciated in this hypothetical could no reasonably be captured under

section 279.011(1) of the Criminal Code . I do appreciate, however, that this provision can and does extend to non-sexual exploitation. [ 82 ] The second and third hypotheticals provided by the Applicant in my view also do not meet the test for a reasonable hypothetical. [ 83 ] The fourth hypothetical provided by the Applicant does make out all essential elements of the offence. This hypothetical is of an 18 year offender exercising control over a 17 year old victim though uttering threats. As a result of the threats the victim is forced to clean the offender’s house one time only.

In this scenario, the exercise of control is present, the victim is under 18 and the offender intends to exercise control through threats for the purpose of exploiting the victim by extracting unpaid labour out of her. In my view, while this fact scenario may not be the most common, there are number of variations on it that are reasonably foreseeable such that in my view it is a reasonable hypothetical. For example, a café owner faced with a young person who is homeless and vulnerable catches her stealing some food.

The owner, threatens to tell all the neighboring businesses about the young person and put her photograph on the internet so that she will be barred from all local businesses unless the young person works in the kitchen and cleans the café every day for free. This continues for 5 days and ends when the young person tells a friend about what is taking place who in turn contacts the authorities. In this hypothetical, the work done far exceeds the cost of the food taken, and the owner clearly is forcing the young person to engage in labour she would not do but for the threat.

In this hypothetical, the store owner is excercising control over the young person and does so for the purpose of exploiting her. Pursuant to

section 279.011(1) (

b) a sentence of 5 years would attach to both these offences. [ 84 ] Forced child labour is abhorrent and is internationally condemned. Nonetheless, it is difficult to imagine a sentence of greater than one year attaching to either of the above scenarios especially if the offender was a youthful first offender with great prospects for rehabilitation. [ 85 ] In the case at bar, the Crown identifies at paragraph 10 of her factum that control can be exercised over a young person because of their vulnerability without any overt threats or violence.

The promise of a warm place to stay and paying some attention to a young person may be enough to control the young person. Therefore, this offence captures inducements that fall substantially short of violence. In light of this reality, another reasonable hypothetical is the 18 or 19 year old boy with no prior record, who is homeless and troubled, forces a 17 year old homeless youth 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 17 year old services one clients 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 17 year old victim leaves. In this fact scenario all the essential elements of the offence are made out yet it is difficult to imagine a sentence greater than 2 years being imposed on this offender.

A sentence of 5 years in this case would also be grossly disproportionate [ 86 ] Another reasonable hypothetical given that the mens rea for the offence includes having the intention and purpose of facilitating in the exploitation of a young person would be where an eighteen year old prostitute agrees to drive a seventeen year old prostitute to a motel at the behest of a pimp so that the 17 year old could work as a prostitute for the pimp at the motel.

In this scenario, the offence is made out, it could reasonably take place, and would result in a sentence that would be at least three times higher than what would actually be a fit sentence. [ 87 ] When I consider the broad range of conduct captured by this section, even taking into account the heightened mens rea, many reasonable hypotheticals can be constructed where a 5 year sentence would be grossly disproportionate to the fit sentence. As such, in my view,

section 279.011(

b) violates

section 12 of the Charter.

Section 1

[88] The court was advised by Crown counsel that should this court find that the minimum sentence in question violated

section 12 ofthe Charter, she would not be calling any further evidence nor did she want the opportunity to make further submissions on this point. [89] Pursuant to

section 1 of the Charter, a law that violates of the charter will nonetheless prevail where the Attorney-Generalestablishes that the law has a pressing and substantial objective and that the law is proportional to that objective. McLachlan C.J.C.stated in R. v. Nur, supra, at para 111, A law is proportionate if (1) the means adopted are rationally connected to that objective; (2) it is minimally impairing of the right inquestion; and (3) there is proportionality between the deleterious and salutary effects of the law: R. v. Oakes, (SCC),[1986] 1 S.C.R. 103.

It will be difficult to show that a mandatory minimum sentence that has been found to be grossly disproportionateunder s.12 is proportionate as between the deleterious and salutary effects of the law under s.1 [90] In the case at bar, there can be no doubt that there is a pressing and substantial objective. Protecting young people from thepredatory and exploitive conduct of others is a pressing and substantial objective. Similarly, there is a rational connection between theobjective and the legislation. As was noted in R. v.

Nur, “Despite the frailty of the connection between deterrence and mandatoryminimum sentence provisions, a rational connection exists between mandatory minimum terms of imprisonment and the goals ofdenunciation and retribution” (at paragraph 115). [91] In relation to the second prong of proportionality which is minimal impairment, at this stage the court must ask “whether there areless harmful means of achieving the legislative goal” (R. v. Nur, supra, at para 116). In my view the law at stake in the case at barsuffers from the same frailty as the legislation in issue in the Nur case.

Section 279.011(1) has a very wide scope and includes a range ofconduct where the conduct at the lower end of the range that is captured does not require a sentence of 5 years to address the objective. In this case, as in Nur, Parliament could have achieved its objective by drafting an offence with a closer correspondence betweenconduct attracting significant moral blameworthiness and the minimum sentence. [92] With respect to the third prong, in light of my decision that the

section provides for a grossly disproportionate sentence for manyoffences captured under the section, it cannot be said that there is proportionality between the deleterious and salutary effects of the law. I therefore find that the provision cannot be saved by

section 1 of the Charter. [93] As a judge of the Ontario Court of Justice, I have no jurisdiction to declare the mandatory minimum sentence unconstitutional undersection 52 of the Constitution Act, but, having found the law unconstitutional I need not apply the minimum sentence. The Appropriate Sentence [94] In the case at bar, the applicant argued that a sentence of 2-2/1 years is an appropriate sentence. Crown counsel argued that asentence of five years or more is appropriate. As noted above, in my view a sentence of more than 3 years but less than 5 years isappropriate in the case at bar.

Having identified this broader range, I am now required to determine what the appropriate sentence actualis given the specific facts of this case. [95] At the sentencing hearing, counsel for Mr. Finestone argued that an additional factor the court must consider in determining theappropriate sentence is not just the progress Mr. Finestone has made since his arrest but also the fact that there are limited resources inthe penitentiary for those suffering from ASD. He argued that as a result, Mr. Finestone should receive a lesser penalty to reduce thenegative effects prison will have on his rehabilitation.

Counsel further argued that one of the characteristics of Mr. Finestone’s mentaldisorder is that he does not understand and appreciate complex social cues. Counsel argued that as a result Mr. Finestone will be atgreater risk in the prison as he will not be able to understand and react appropriately to the “con code” which is an unwritten code ofconduct amongst inmates. [96] Crown counsel called Mr. O’Brien who testified about the available programs at the penitentiary and the mechanisms available toassist inmates that may be at greater risk. In light of this evidence, I am unable to accept the submission that Mr.

Finestone will notreceive appropriate treatment or that his safety will be at risk. In relation to the first point, Mr. Finestone has excelled at Vita Nova, atreatment center that does not afford special programing for those suffering from Asperger’s Syndrome. This suggests that Mr. Finestonecan benefit from a host of programs. Secondly, I accept the uncontradicted evidence of Mr. O’Brien that Mr. Finestone will be assessed

upon admission and given access to appropriate mental health treatment. Moreover, having assured the court that Mr. Finestone’ssafety will be addressed in the penitentiary, the staff are on notice of the concerns raised in this case and I am confident they will takeappropriate steps to guarantee Mr. Finestone’s safety. Neither of these factors provide a realistic basis to reduce what would otherwisebe an appropriate sentence for Mr. Finestone. [97] Counsel for Mr. Finestone further argued that I should give Mr.

Finestone credit for the time he has been on a recognizance in thecommunity given the stringent terms of his release. In R. v. Downes (2006) (ON CA), 79 O.R. (3d) 321 (CA), theCourt of Appeal held that in some cases credit may be given for the impact of pre-sentence release conditions. Strict bail conditions,however, are not the same as being incarcerated. Therefore, if credit is to be given for strict bail conditions, the credit should not be on aone for one basis. Moreover, in many cases, the court may choose to not give any credit for the pre-trial liberty restrictions that arisefrom a tight bail.

Crown counsel argued that despite the house arrest term, Mr. Finestone should not receive any credit for his timespent on a strict release because Mr. Finestone’s liberty was not actually restricted. To that end, Crown counsel highlights that Mr.Finestone was permitted to reside in treatment facilities that were to his benefit and engage in social programming attached to histreatment. This has placed Mr. Finestone in a more positive position at his sentencing. Moreover, it is clear from the reference materialthat Mr.

Finestone was afforded many opportunities to engage in activities outside of his residence with designated persons. I agree withCrown counsel, in light of all this evidence, this is not appropriate case to credit Mr. Finestone for his strict bail conditions. [98] As previously noted, other courts have held that a sentence of four to five years is usually appropriate where the offender hascoerced adult victims into becoming or remaining a prostitute, and has exercised a significant degree of control over her activities.

Giventhe amount of coercion involved in this case, the absence of violence and the short duration of the exploitation Mr. Finestone wouldarguably sit at or just below the four year mark. However, when one takes into account the additional very aggravating factors of thevictim’s young age, a sentence in the area of five years or more would nonetheless normally be appropriate. I must keep in mind some ofthe exceptional circumstances that exist in this case. While not an exceptional circumstance, Mr. Finestone is a youthful first offenderand as such the principle of restraint applies.

More importantly, as noted above Mr. Finestone suffers from a mental illness and hastaken tremendous steps to develop awareness about the impact of his behaviour on others and the negative effects of pimping andprostitution generally. From a review of the case law, it appears to be quite rare that those involved in pimping take such active steps tochange their lives. I also note that Mr. Finestone has been in treatment for approximately eighteen months and is working hard toovercome his addictions and other causes of his criminality. Everyone in his life has noticed a dramatic change in Mr.

Finestone over thepast two years. Mr. Finestone should be credited for this. [99] It is always difficult to sentence a youthful first offender to jail where his prospects for rehabilitation in the community are so high. The courts want to encourage and commend offenders who take responsibility for their actions and have turned their life around. Thepersonal circumstances of the offender in cases involving sexual violence against young persons, however, play a lesser role than theywould otherwise play in the sentencing process for other offences.

This is because the appellate courts have consistently held thatdeterrence and denunciation are paramount considerations. When I take into account all of Mr. Finestone’s personal circumstances asnoted above, keeping in mind the need to focus on deterrence and denunciation, in my view a sentence of 4 years should be imposed. Taking into account the 3 ½ weeks spent in pre-trial custody, calculated at 1.5:1 for a total of 36 days Mr. Finestone is sentenced tothree years ten months and twenty four days. [100] In addition to the term of imprisonment, the following additional orders will apply:

i) A DNA order; ii) An order under

section 109 of the Criminal Code for 10 years; and, iii) A SOIRA order for 20 years [101] Crown counsel further requests that an order be made under

section 161 of the Criminal Code. A

section 161 order should only beimposed where “there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the judge issatisfied that the specific terms of the order are a reasonable attempt to minimize the risk (R. v. K.R.J., 2016 SCC 31 , [2016]S.C.J. No. 31 at para 48). In the case at bar Mr. Finestone is a youthful first offender. There is no evidence that he suffers from any sexual deviancy or that heposes a risk to re-offend. Since his arrest, Mr. Finestone has taken all reasonable steps possible to address his criminality.

I am satisfiedon all this evidence that Mr. Finestone is determined to move forward in a pro-social manner and that he will continue on this path. Iappreciate the serious nature of this offence, but when I consider all the evidence, I find that the Crown has not provided a sufficientevidentiary basis for this court to conclude that Mr. Finestone poses an ongoing risk to children. I therefore decline to make an Orderunder

section 161 of the Criminal Code. Released February 7, 2017

______________________________ Justice Mara Greene