R. v. D.G., 2014 ONCJ 801

CITATION: R. v. D.G., 2014 ONCJ 801 DATE: October 30, 2014 ONTARIO COURT OF JUSTICE YOUTH JUSTICE ACT IN THE MATTER OF the Youth Criminal Justice Act S.C. 2002, c.1 HER MAJESTY THE QUEEN v. D.G. ********** R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE J. MARESCA on the 30 th day of October 2014, at BRAMPTON, Ontario ********** PROTECTED FROM PUBLICATION BY SECTIONS 110 AND 111 OF THE YOUTH CRIMINAL JUSTICE ACT APPEARANCES : A. Gauthier Counsel for the Crown L. Graham Counsel for D.G. THURSDAY, OCTOBER 30 TH , 2014 REASONS FOR JUDGMENT MARESCA, J. (Orally): D.G. has entered guilty pleas to four different offences, one, the offence of procuring under

section 212 of the Criminal Code . The second is making child pornography pursuant to

section 163.1 of the Code. The third is making available child pornography pursuant to

section 163.1(3) of the Code and attempting to procure a person to become a prostitute pursuant to section 212(1)(

d) of the Code. Essentially Mr. G., when 17 and in high school, recruited three young women, each aged 16 to work as prostitutes for him. Two of the women, T.B. and S.J. did, in fact, engage in sexual acts for money, which they gave to Mr. G. The third, Ms O. backed out when she observed, first-hand, what was involved. Mr. G. set this enterprise up as a business. He took suggestive photos of the women and posted them on the Internet on the site back page dot com.

Each photo was accompanied by text describing the women’s desirable physical qualities, and there was no doubt, that they were being offered for sex. He fixed prices for various sexual acts and rented hotel rooms where the women came to take the men they serviced. He collected money from the women afterwards and there is no issue that this was a for- profit venture. In sentencing, Mr. G., I must be mindful of the purposes of sentencing young persons, in particular, which I have set out in

section 38 of the Youth Criminal Justice Act . And I would just like to highlight those. The sentence that I impose must be one that is not greater than punishment that would be appropriate for an adult in similar circumstances. It must be similar to sentences imposed in the Region on similar young persons found guilty of the same offence, committed in similar circumstances. The sentence has to be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence.

And all available sanctions, other than custody, that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons. The sentence has to be the least restrictive sentence that is capable of achieving these purposes. It has to be one that is most likely to rehabilitate the young person and to reintegrate him into society. And it has to be one that tends to promote a sense of responsibility in the young person. And an acknowledgement of the harm done to victims and to the community.

There are a number of factors that the court must consider and those are set out in section 38(3). I also am cognizant of the fact that I must keep in mind

section 39 of the Youth Criminal Justice Act . And that section, essentially, directs that I must not sentence the young person to custody, unless I have considered all alternatives to custody that are reasonable in the circumstances in accordance with the sentencing principles that I have just described in

section 38. Now section 39(1) sets out the circumstances in which the court may sentence a young person to custody. The only sub-section that is relevant to this particular case is 39(1)(d). And that sub-section reads: “That in exceptional cases, where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence, would be inconsistent with the purpose and principles set out in

section 38 of the Act.” I will say now that I find for the reasons I will describe, a custodial sentence is not the appropriate sentence to impose in this case. I decline to rule therefore, on whether, had I determined that custody was an appropriate sentence, it would have been available under 39(1)(d). I am not going to go through that analysis. I find that there are alternatives to custody, that I think are sufficient, given the sentencing principles of the Act. In considering the appropriate sentence in this case, I have looked at the circumstances of the offence.

I have looked at the likely harm to these victims, although they have chosen not to participate, not to provide a victim impact statement. I have looked at the potential risk to society. And I have looked at the circumstances, in particular, of Mr. G. I have loosely grouped these things that I have looked at into categories of aggravating factors and mitigating factors. And that is how I will go through them. The aggravating factors are as follows: 1. The most obviously aggravating factor is the nature of the offence itself. Mr.

G. not only engaged in this scheme, which exploited women for his own personal gain, he did so knowing that these women were only 16. He placed them in danger by sending them into hotel rooms with male strangers, leaving them vulnerable, not only sexually, but also vulnerable to possible physical harm. Prostitutes are at risk. They are often beaten, they are often abused, they are sometimes killed by the men who purchase their services. You have no idea who you are sending them to. To place a 16 year old girl in this position is a very serious crime. 2.

The pictures of these women, which were posted on the Internet will be there, essentially, forever. There is no way of getting them back. These photos may haunt these young women for years to come. Not only are they reminders of this set of circumstances in their lives, but as a ticking time bomb for any potential boyfriend or spouse or an employer in the future, to come across. And you can do nothing about that now, having sent these photos out into the world. 3. This is a well planned scheme, whose sole purpose was to enrich Mr. G. And those are very serious aggravating factors.

There are a number of mitigating factors in this case as well. 1 . Mr. G.’s presentence report is extremely positive. He has strong family support. And I know his family is present in court this afternoon. He has strong moral guidance from them, as well as from his church. They are prepared to play a significant role in his rehabilitation

and his efforts to make amends to his community. 2 . Mr. G. has entered pleas of guilt to these charges. He has taken responsibility for his actions. He has acknowledged both his wrongdoing and its consequences to his victims. He has done so publicly in front of this court, in front of his family and in front of the community. No easy task. 3 . By pleading guilty, Mr. G. has spared these young women the humiliation and the re- victimization they would suffer as a result of a trial. 4 . Mr.

G. has undertaken counselling, to try to understand his own reasons for doing this, and what it may have meant for his victims. 5 . He has been actively involved in his church. He has donated his time to the service of others, through his church and through the Knight’s Table. 6 . Mr. G. has taken steps to continue his education. And he is working to support his family. 7 . He has just become a father, and seeing his daughter has brought home to him how important respect for women is. I am satisfied that Mr. G. is truly remorseful for what he has done.

And that he is actively taking steps to understand himself and to make amends. I am satisfied that he will not be back before this court again. Having considered all of these factors, in light of the direction I receive from the Youth Criminal Justice Act and the purposes of sentencing, I impose the following sentence. I will place Mr. G. on probation for a period of 24 months. There will be the following conditions to that probation. 1. He will report to probation today. I think he can still make it, if not today, then within 48 hours and as often as required thereafter. 2.

He will maintain gainful employment or attend full-time school or both. 3. He will reside where approved by his probation officer. 4. He will have no contact with T.B., R.O. and S.D. He is also not to attend any place that he knows any of these women to be. 5. He is not to rent or be found in any hotel or motel room, unless in the company of his parents or other person approved in advance by his probation officer. 6. He is not to employ, or be in a position of authority in the course of employment, over any female under the age of 17. Now while Mr.

G. did not use weapons in the course of committing these offences, they are offences which by their very nature carry with them the risk of violence. And in my view, although this order is discretionary, I think it is appropriate to impose an order prohibiting him from having any weapons for a period of two years. There is no reason you need to have them anyway. With respect to the DNA order, this is a primary designated offence. I do have a residual discretion not to require Mr. G. to provide a sample of his DNA.

And the test that I must use to determine whether or not to exercise that discretion, is whether requiring him to do so would be, in terms of his privacy interest, grossly disproportionate to the public interest in the protection of society and the early detection of crime. It is a minimally intrusive procedure. And in the circumstances of this case, I think that it is appropriate to make such an order and I do so. And that sample is to be provided within 72 hours. It can be done across the street today. MS GRAHAM: Your Honour, the only question that I may have is with regards to the no contact.

Did you intend for him not to have contact with his baby’s... THE COURT: No. I don’t believe I named her. MS GAUTHIER: It’s the wrong name, Your Honour. MS GRAHAM: Yeah. You said S.D. THE COURT: Oh, did I? MS GRAHAM: Yeah. THE COURT: Oh, I beg your pardon. MS GAUTHIER: So it should be T.B. and then S.J. rather than S.D. THE COURT: I beg your pardon, S.D. MS GAUTHIER: And then R.O. is the third.

THE COURT: That’s right. Sorry. I got that from the agreed statement of facts, so... MS GAUTHIER: Right. THE COURT: ...my mistake. All right. So it was not to prohibit you from having contact with your child’s mother. MS GAUTHIER: Right. But I did want to add the S.J. instead THE COURT: Yes. MS GAUTHIER: ...of Ms D. THE COURT: And I have done so. MS GAUTHIER: Thank you. THE COURT: Okay. MS GAUTHIER: And the other count, at least, one count, I think there was another - a luring - could be withdrawn. THE COURT: Any remaining counts will be marked withdrawn. MS GAUTHIER: Thank you. THE COURT: Okay. So, you know, this was a

chapter in your life that I am sure has been - something that is going to be very instructive. Everyone, at some point in their life make mistakes. Some more serious than others. And the measure of a man is what he takes away from those mistakes, what he learns from them and what he does with his future, so I wish you luck. MS GRAHAM: Thank you, Your Honour. MS GAUTHIER: Thank you. * * * *