R. v. Shaw, 2016 NSSC 292

SUPREME COURT OF Nova Scotia Citation: R. v. Shaw, 2016 NSSC 292 Date: 20161007 Docket: Cr. No. 442778 Registry: Halifax Between: Her Majesty the Queen v. Tashlynn Sheila Marie Shaw Restriction on Publication: s. 486.4 Sentencing Decision Judge: The Honourable Justice Robert W. Wright Heard: October 7, 2016 in Halifax, Nova Scotia Oral Decision: October 7, 2016 Written Decision: November 7, 2016 Counsel: Susan MacKay for the Crown Eugene Tan for the Defence Wright, J. (orally) [ 1 ] On June 20, 2016 the accused Tashlynn Shaw entered a plea of guilty to the following charges: a.

Two counts of living partly on the avails of prostitution of persons under the age of eighteen years, contrary to s. 212(2) of the Criminal Code (then in effect); b. Two counts of exercising control or direction or influence over the movements of the two named victims, for the purpose of gain, in such a manner as to show that she was aiding or abetting or counselling them to engage in or carry on prostitution in general, contrary to s.212(1) (

h) of the Criminal Code (then in effect); c. One count of assault with a weapon, contrary to s.267 (

a) of the Criminal Code . [ 2 ] Under the terms of the plea bargain, the remaining 16 charges under the Indictment were dismissed. Sentencing was then put over until October 7, 2016 to allow time for the preparation of a pre-sentence report and victim impact statements (the latter did not materialize). [ 3 ] At the time these guilty pleas were entered, Crown counsel read into the record the following Agreed Statement of Facts: Agreed Statement of Facts Both young women in question [have their] names banned from publication, but who I will refer to during this hearing [as K and J]. They provided money to Ms.

Shaw which she knew had been obtained by them from prostitution. Ms. Shaw had befriended each of these young women. They each had already been involved in prostitution by the time she met them. She drove them to meet clients and they were too young to book hotels. She arranged and paid for hotel rooms. She bought liquor for them, all paid for as a result of their earnings from prostitution.

At the time, K was 15 and J was 14. Ms. Shaw knew that each were under the age of 18. She placed advertisements regarding K’s services and arranged dates for her with clients. Ms. Shaw both cajoled and coerced her to keep on working as a prostitute, even when she indicated she did not want to continue, by Ms. Shaw threatening to tell her boyfriend about these activities. Ms. Shaw also coerced money from them both by mentioning to them that she needed money to support her young daughter and both of them provided her with money from the prostitution activities with this in mind.

During a relatively short period of time when K was not working as a prostitute, Ms. Shaw asked J to do some calls that had come into her regarding K’s advertised services and she did. Ms. Shaw also assaulted J during a get together. J was fearful of her harming her family and herself, as Ms. Shaw had said that she knew where both her mother and father lived and where she went to school. K became aware of this incident regarding J, both from Ms. Shaw herself and from J. She continued to prostitute herself partly because she feared what Ms. Shaw might do to her if she didn’t.

Regarding the assault with a weapon with regard to J, I can indicate that Ms. Shaw was at a gathering with a group of people including J and others. It was in an apartment. Ms. Shaw was brandishing a police style baton and a knife, a steak knife, and she assaulted J. None of the people at the gathering assisted J and they encouraged her in fact not to do anything to help herself. J decided to let herself be assaulted rather than fight back. J ended up with injuries including her hair, part of hair being pulled out (clumps of it), the side of her face was swollen, the corner of one of her eyes was swollen black.

There were abrasions on her chest from Ms. Shaw having clutched at her and grabbed her that way. She had a lump on the back of her head from having been hit by her on the head and she had a small scrape on her neck from having had the knife held to her throat by Ms. Shaw. Those are the circumstances in brief that support the guilty findings I would respectively submit. [ 4 ] Although defence counsel acknowledged agreement with this Statement of Facts, he called Ms. Shaw to the stand during this sentencing hearing to expand upon that statement.

As soon became apparent, the purpose in doing so was to demonstrate a lower level of participation and control by Ms. Shaw in these illicit activities than one generally finds in other reported cases. [ 5 ] In her direct testimony, Ms. Shaw related that she was just 23 years old at the time these offences were committed and financially destitute. She was the single mother of an infant daughter whose father had left and she was struggling to get by financially. That was the situation when she was first introduced to K through a friend of the man she was dating at the time.

K was already working for that individual in the prostitution trade. Some time later, Ms. Shaw also befriended J who also was already engaged in the prostitution trade. [ 6 ] As Ms. Shaw put it in her testimony, K and J came asking for her help in these illicit activities because as young teenagers, they did not have driver’s licenses, bank cards or a website. Ms. Shaw agreed to provide assistance to them by driving them places, placing ads on a website and, occasionally, booking hotels (although she said K and J usually booked hotels themselves). Ms.

Shaw provided these services for compensation, the amount of which is not in evidence. This went on for a period of several months (longer with K than with J). [ 7 ] Ms. Shaw reiterated the comments reflected in her pre-sentence report that she didn’t see the seriousness of her unlawful conduct at the time and didn’t think she would get in trouble over it. She said she was young and dumb at the time and wasn’t thinking of the harmful consequences for K and J.

She has now accepted responsibility for these offences and expressed her remorse and embarrassment, including what her young daughter will someday think of her. [ 8 ] Ms. Shaw also expanded on the circumstances surrounding the offence of assault with a weapon. She said that there were a number of people drinking at a friend’s home when J took her car keys and was trying to take off with two guys. She tried calling J’s mother to help deal with the situation but ultimately the assault occurred as described in the Agreed Statement of Facts. [ 9 ] Even though Ms.

Shaw attempted to downplay her level of participation and hence moral culpability in committing these offences, the fact remains that there was a significant element of coercion exercised over K and J in continuing to engage in the prostitution trade. As Crown counsel acknowledged in closing submissions, there was some degree of choice here on the part of K and J but nonetheless, this was very destructive behaviour on the part of Ms.

Shaw in exploiting the vulnerability of two young teenage girls, for financial gain, which the courts in this country have had occasion to condemn all too often. [ 10 ] Indeed, in cases of this nature, the courts have repeatedly stressed the sentencing objectives of denunciation and deterrence. Always to be balanced against that, however, is the sentencing objective of rehabilitation. Here, there is some reasonable prospect for Ms. Shaw’s rehabilitation, judging from the content of the pre-sentence report and her acceptance of responsibility and remorse. [ 11 ] It is evident from the pre-sentence report that Ms.

Shaw suffers from depression, anxiety and a mood swing disorder. At the time of the writing of the report, she was not then engaged in counselling but indicated that she does plan to connect with mental health services. [ 12 ] It is also related that Ms. Shaw has a grade 11 education and that she aspires to complete her high school education and then continue at community college, although her earlier efforts to do so had not been successful. [ 13 ] As for her employment history, Ms. Shaw lives on income assistance benefits off and on and receives no child support from the father of her daughter.

She was last employed in a clerical position at a Dollar store in 2011. [ 14 ] Ms. Shaw also has a relatively minor criminal record. She was convicted of a break and enter offence which occurred in 2010 for which she received an 18 month conditional sentence order. She subsequently breached a curfew condition in 2013 for which she received a sentence of 5 days in jail. Lastly, she was a party with other persons to an assault committed in December of 2015 which was

subsequent to the present offences. For that she received a one month conditional sentence order plus 11 months probation. [15] The probation officer who authored the pre-sentence report also recommended that Ms. Shaw have access to mental healthservices and anger management counselling to assist in her rehabilitation. Both those recommendations are endorsed by this court. [16] Against that factual background and the personal circumstances of the offender, the Crown is proposing a global sentence of 3years’ incarceration.

The recommendation of defence counsel is that the mandatory minimum sentence of 2 years’ incarceration relativeto the s.212(2) offences should be imposed, with the sentences for the other convictions to run concurrently. [17] In support of its position, counsel for the Crown has provided the court with seven sentencing cases, all from different provinces(none from Nova Scotia having been located).

I do not find any of these cases to be of any direct assistance where most of them dealwith different prostitution related offences, notably, human trafficking and procuring, and none of them are factually close to the presentcase. However, they do provide limited assistance insofar as they identify the sentencing objectives to be emphasized and variousaggravating and mitigating factors to be considered in prostitution related offences.

They do not firmly establish a range of sentencingfor the offences now before the court but rather indicate in a general way that the range of sentencing for these kind of offences is a verywide one, depending on the individual circumstances of the case. [18] The one case relied upon by defence counsel is the decision of the Alberta Court of Appeal in R. v. Tang 1997 ABCA 174, [1997] A.J. No. 460. That case involved the sentencing of an adult offender living off the avails of prostitution of two juvenilegirls (ages 13 and 14) in operating a sophisticated brothel business.

In assessing the degree of criminal culpability of a pimp living offthe avails of child prostitution, the court said that it is not enough to simply focus on the level of control exerted over the child prostitutesor on the money and benefits which are extracted. The court went on to say that a whole panoply of factors, in addition to usualaggravating and mitigating ones, should be considered which were then sequentially set out in paragraph 11 of that decision.

Rather thanquoting that paragraph at length, I will simply incorporate it by reference and now review each of those factors that are pertinent to thecase at bar: a. The degree of coercion or control imposed by the pimp on prostitutes activities; – As I stated earlier, although there wasa degree of choice here by the two victims, there was a significant degree of coercion or control by Ms. Shaw in having the two victimscontinue in the prostitution trade; b.

The amount of money received by the pimp and the extent to which the pimp allowed the prostitutes to retain theirearnings; - They are no specifics in regard to this factor in the evidentiary record; c. The age of the prostitutes and their numbers; - There were two victims who at the time were ages 15 and 14respectively; d.

Any special vulnerability on the part of the prostitutes; - Once again, it is acknowledged that there was an element ofchoice here on the part of the two victims and there was no specific evidence on the vulnerability of the two victims in the evidentiaryrecord (the reference in sentencing submissions by Crown counsel to a statement given by the mother of one of the victims cannot formpart of the evidentiary record). Nor were victim impact statements provided by either of the complainants.

Nonetheless, the court canreadily infer from the surrounding circumstances that these two young victims were in a state of vulnerability which was exploited byMs. Shaw; e. The working conditions in which the prostitutes were expected or encouraged to operate; - The two victims operated outof hotel rooms booked on occasion by Ms. Shaw who also solicited customers on a website; f. The degree of planning and sophistication; - This was an unsophisticated operation on the part of Ms.

Shaw who assisted, cajoledand coerced the two victims into continuing their prostitution activities for which she received compensation; g. The size of the pimp’s operations, including the number of customers the prostitutes were expected to service; - This wasa small operation as above described and there is no evidence as to the number of customers serviced; h. The duration of the pimp’s exploitative conduct; - The unlawful activity here spanned a period of several months; i.

The degree of violence, apart from that inherent in the pimp’s parasitic activities; - The evidentiary record does not containspecifics of any acts of violence outside of the assault with a weapon incident in respect of J.; j. The extent to which inducements such as drugs or alcohol were implored by the pimp; - It is acknowledged in the AgreedStatement of Facts and by Ms. Shaw in her evidence that she bought alcohol “for all of us” from time to time; k.

The effect on the prostitutes of the pimp’s exploitation; - There is no specific evidence in this regard, there having beenno victim impact statements filed. [19] The Alberta Court of Appeal in Tang then went on to comment (at para. 12) that although there was no evidence of overtcoercion being used to force the juvenile girls in that case into prostitution, the relationship was certainly an exploitive one thatcapitalized on the sale of children’s sexual services.

After weighing all of the relative factors, many of which are more egregious thanthose in the case at bar, the Court of Appeal upheld the trial court’s imposition of a sentence of 5 years’ incarceration. [20] Although the decision in R. v. Tang is now somewhat dated, I note that it was recently applied by the Ontario Superior Court ofJustice in R. v. A.A. [2012] O.J. No. 6256 where the offender was being sentenced on two counts of human trafficking. In my view, the

Tang decision remains useful in identifying additional factors to be considered by the court in imposing sentences for prostitution related offences. [ 21 ] In addition, of course, the court must consider the usual spectrum of aggravating and mitigating factors at play. To that end, defence counsel has urged the court to consider the following mitigating circumstances: a. Ms. Shaw did enter a plea of guilty to five of the offences with which she was charged, the remaining charges having been dropped by the Crown after discussions between counsel, thus sparing the two victims from having to testify at trial; b.

She has accepted responsibility and expressed sincere remorse for her unlawful conduct; c. She has a very limited criminal record; d. She committed these offences at the young age of 23 at a time when she was in very difficult personal circumstances. It is acknowledged that this is not an excuse for what she did but helps explain the bad decisions she made at the time; e. She has already suffered, and will continue to suffer, the public embarrassment and stigma amongst her family and friends for her unlawful conduct; f. She has already served 26 months of house arrest pending this sentencing under a Recognizance.

It is acknowledged, of course, that no actual credit can be given to her for this but it is submitted that the house arrest has already restricted her liberty for more than 2 years; g. The court ought to show some leniency where Ms. Shaw is the sole provider for her five year old daughter from whom she will now be separated for the duration of her sentence. [ 22 ] As noted earlier, s.212(2) of the Criminal Code carries with it a mandatory minimum period of incarceration of 2 years (the maximum being 14 years).

All three of the remaining offences carry a maximum punishment of 10 years’ imprisonment with no minimum. Obviously, the objective seriousness of the s.212(2) offences is considered to be higher. [ 23 ] With the little guidance I have from the sentencing case law provided to me at this hearing pertaining to the s.212(2) offences, it is not appropriate for me in this decision to attempt to establish an appropriate range of sentence (it being a very broad one).

In any event, in the present case the sentence recommendations from counsel are only one year in the difference with the defence recommendation of 2 years’ imprisonment being the mandatory minimum punishment. [ 24 ] The facts underlying this case place it at the lower end of gravity relative to the more egregious circumstances found in other reported cases. That is not to understate, however, the seriousness of the offences committed here which were exploitive of two vulnerable juvenile girls in capitalizing on the sale of their sexual services.

As the Court of Appeal stated in Tang , Courts are always concerned about the exploitation of the young by adults. [ 25 ] Although my approach is not to simply halve the difference between the respective recommendations of counsel, I conclude that a sentence a notch above the 2 year mandatory minimum would be appropriate on the individual facts of this case. I therefore sentence Ms. Shaw to a term of imprisonment of 30 months for the commission of the two s.212(2) offences, to run concurrently. [ 26 ] I further impose the same sentence of 30 months for each of the two offences under s.212(1)(

h) which are also to run concurrently. Lastly, I impose a sentence of 3 months incarceration in respect of the s.267 (

a) offence, again to run concurrently with the others. [ 27 ] As requested by Crown counsel, without opposition, the court also imposes the mandatory ancillary orders as follows: SOIRA order for a duration of 20 years; a forensic DNA analysis order under s.487.051 and the mandatory weapons prohibition order for a first conviction under s.109. [ 28 ] As a footnote it is recommended that Ms. Shaw be given access to mental health services and anger management counselling for rehabilitation purposes during her incarceration. J.