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SENTENCING - Escapes and rescues - Breach of undertaking or recognizance

Friday, March 06, 2020 @ 9:26 AM  


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Sentencing of the 30-year-old offender convicted of two counts of human trafficking, receiving a material benefit, and two counts of breach of recognizance. Application by the offender for a declaration the mandatory minimum sentence of four years for human trafficking was unconstitutional. The offender trafficked an 18-year-old victim for six to seven months. The offender trafficked a second victim for two and a half years when she was between 19 and 21 years old. The victims took several appointments daily and earned $1,000 per day. The offender kept thousands of dollars per week of the victims’ earnings. The offender acknowledged the mandatory minimum sentence was not disproportionate for him in the circumstances under which he was convicted. He had no prior criminal record. He had a partner and young child, operated his own business and expressed remorse.

HELD: The offender was sentenced to six years’ imprisonment, less 72 days of pretrial custody. The offender’s application was allowed. Mitigating factors were the offender’s lack of a prior record, his relative youth, his family support, his steady employment, his positive presentence report, his partner and young child and his remorse. Aggravating factors were the offender’s control over the victims, the money he received, the age, vulnerability and number of victims, the victims’ working conditions, the moderate planning and sophistication, the number of customers, the duration of the exploitation and the impact on the victims. The sentences for each count of human trafficking were to be consecutive, subject to adjustment for the totality principle, because each count involved separate actions by the offender and involved two separate victims. A fit sentence was eight years, reduced to six years based on the totality principle, less a credit for 72 days of pretrial custody. Given the broad wording of s. 279.01 of the Criminal Code, which did not limit situations to the sex trade, there were reasonable hypotheticals where a minimum sentence of four years would be grossly disproportionate. The section violated s. 12 of the Canadian Charter of Rights and Freedoms (Charter) and could not be saved under s. 1 because a law that ran afoul of the principles of fundamental justice could not be saved. The mandatory minimum sentence was unconstitutional and of no force and effect. Sentence: Six years’ imprisonment, less 72 days of pretrial custody, including four years for trafficking; DNA order; 10-year firearms prohibition; non-contact order — Criminal Code, ss. 279.01(1), 279.02(1).

R. v. Jean, [2020] O.J. No. 80, Ontario Superior Court of Justice, R.J. Smith J., January 9, 2020. Digest No. TLD-March22020011