Appeal Court affirms conditional sentence for teen in sex case

Law360 Canada (January 13, 2025, 10:25 AM EST) --

John L. Hill

In 2014, Parliament passed the Protection of Communities and Exploited Persons Act. The legislation was based on the premise that prostitution is a form of sex or gender inequality and that it is associated with human trafficking and violence.

While it legalized the sale of sex, it criminalized the purchase of sex or communication with the intent to obtain sexual services. The legislation created the “somewhat” legalization of prostitution. Yet the association that continued in the public’s mind made equating the sex trade with human trafficking and violence made it difficult to defend a sex worker before a jury when that association persisted.

That was the lesson learned by 19-year-old A.L. when she and her 16-year-old girlfriend moved in together and placed advertisements on the web. A.L. posted revealing photos of her young associate to lure prospective customers. In four days, the 16-year-old engaged in paid sex with several men.

Eventually, the 16-year-old moved out and complained to police that she had been drugged and threatened by A.L. Police laid charges of trafficking a person under 18, advertising sexual services, and publishing and possessing child pornography as well as drug charges. A jury found A.L. guilty of the four counts, but it rejected the complainant’s testimony that A.L. had drugged her and forced her into sex work.

On appeal, A.L. argued that the convictions could not stand because the jury’s verdict was inconsistent and/or unreasonable. Undoubtedly, the complainant was a willing participant in the activity. Does the fact that the sex worker was a juvenile make the situation more serious and justify a severe penalty?

At trial, A.L. was sentenced to a conditional sentence of two years less a day with 18 months of house arrest and three years probation. The Crown had asked for a penitentiary term of six years. The Crown appealed the sentence.

The Ontario Court of Appeal heard the case in mid-December 2024, with written reasons handed down on Jan. 8, 2025 (R. v. A.L., 2025 ONCA 9).

The Appeal Court was not persuaded that the jury’s guilty verdicts and acquittals on the drug charges were inconsistent or unreasonable. The court cited R. v. R.V., 2021 SCC 10 and R. v. Pittman, 2006 SCC 9 as authority for the proposition that a verdict can be considered unreasonable only if a trier of fact, acting reasonably and properly instructed, could not have reached it. The trial judge found there was sufficient evidence to support the guilty verdicts even though the complainant was not proven to have been drugged and forced into the sex trade. There was enough evidence that A.L. had facilitated the younger woman’s work. Photos and texts had been put into evidence. A.L. was aware of and encouraged the complainant to carry out paid sex work at A.L.’s apartment. The Appeal Court, therefore, refused to intervene and strike down the conviction.

The court then had to decide if A.L.'s sentence was too lenient. The Crown relied on R. v. Friesen, 2020 SCC 9 in arguing the trial judge improperly elevated A.L.’s circumstances over the paramount principles of denunciation and deterrence in cases of sexual offences against children. Specifically, the Crown's position was that too much weight was given to A.L.’s mental health and intellectual disabilities.

In deciding that the trial judge’s sentence should be upheld, the Appeal Court used the Friesen decision to rebut the Crown’s request for a more severe punishment. Friesen reiterated the significance of the proportionality principle and the application of mitigating factors to reduce an offender’s moral culpability. A similar stance has recently been enunciated in R. v. Bertrand Marchand, 2023 SCC 26.

In R. v. M.M., 2022 ONCA 441, the Ontario Court of Appeal agreed that conditional sentences for sexual offences against children may be appropriate in exceptional circumstances, such as medical hardship that could not be adequately addressed in a correctional facility, but other exceptions may also apply. Chief Justice Michael Tulloch came to the same conclusion in R. v. Pike, 2024 ONCA 608, when he defined “exceptional circumstances” as shorthand for personal circumstances and mitigating factors sufficiently compelling to make a conditional sentence proportionate.

Conditional sentences for sexual offences against children have been upheld in exceptional cases where the appeal court has been satisfied that the sentencing judge adverted to the relevant governing principles. There was no basis to interfere with the factual findings of exceptionality (R. v. Singaqti, [2024] Nu.J. No. 37, R. v. T.J.H., 2023 YKCA 2, and R. v. Germain, 2022 ABCA 257, and R. v. R.B.B., [2024] N.S.J. No. 61).

The Appeal Court rejected the Crown’s contention that the trial judge inflated A.L.’s mental disabilities or her particular vulnerability to exploitation if incarcerated.

The sentencing judge committed no error justifying appellate intervention.
 
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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