R. v. Myers, 2023 ONSC 1015

Court File and Parties

Court File No.: CR-21-5-086 Date: 2023-02-24 Ontario Superior Court of Justice

Between: His Majesty The King And: Stephan Myers, Defendant

Counsel: Julia De Vuono, for the Crown Melody Izadi, for the Defendant

Heard: January 20, 2023

Justice: S. Nakatsuru

Reasons for Sentence

1Mr. Myers. I found you guilty of seven offences. Essentially, you trafficked S.D., a vulnerable eighteen-year-old from Orillia. You recruited S.D., made money off her sexual services, advertised her sexual services, threatened her, and had an illegal handgun. The facts upon which I found you guilty are found in my decision of R v. Musara, 2022 ONSC 2835.

2The Crown seeks a global sentence of ten years: seven years for the human trafficking and related offences plus three years consecutive for the firearm offence. Your lawyer asks for 3.5 years’ imprisonment plus a 2-year conditional sentence and probation.

3The Crown agrees that count 4, receive a material benefit from sexual services, should be conditionally stayed pursuant to the principle in R. v. Kienapple, [1995] 1 S.C.R. 729: see R. v. Wilson, 2022 ONCA 857, at paras. 3-4, 61. I also agree with the defence that count 3, procuring, should also be stayed for the same reason: R. v. Burton, 2023 ONCA 44, at para. 18; R. v. Augustin, 2022 ONSC 5901, at para. 6; R. v. McIntosh, 2022 ONSC 6437, at para. 1.

Aggravating Factors

4I must assess the nature of the offences you committed and your degree of moral culpability. There are several aggravating factors that make your crimes more serious.

5S.D. was a vulnerable, self-harming 18-year-old when you met her. You were considerably older at 27 and were experienced in the illegal ways of the world. You dealt drugs. You knew how the sex trade worked. You could get your hands on illegal weapons. It was you who introduced S.D. to and recruited her into sex work. You lured her with the promise of money and a lifestyle she could only dream of as a teenager growing up in Orillia.

6The amount of control you exerted over her was significant. At the beginning, you did it all: posted the ads, set the prices, bought her lingerie, spoke with the clients, arranged the hotels, etc. She was very much under your control, direction, and influence. This is tempered by the fact that, over time, S.D. developed a certain independence from you where she was able to conduct her sex work with less and less involvement from you. This was especially the case after you went to prison.

7You got her addicted to cocaine. Initially, you did not charge her for the drugs. But once she was badly addicted, you did. I have no doubt that you created and used her addiction to gain power over her to keep her working for you. This is a serious aggravating factor.

8The human trafficking lasted over ten months. It was not a short time. It also included the time when you were in prison. Even when you were locked up, you continued to exert influence over her and encouraged her to keep working. You were persistent and successful.

9Then there was the dynamics of your relationship. Clearly, she developed an emotional attachment to you. She lived with you. She had feelings for you. I have no doubt that she believed you felt the same for her. I cannot say what your true feelings were. I recognize that human relationships are complicated. Nonetheless, I have no doubt that you were aware of her feelings for you. And your actions kept her in your thrall. In short, you manipulated her emotions.

10There is the firearm that you had. I know you never actually threatened S.D. with the gun. But let there be no doubt: showing it to her could only have intimidated her. Most problematic is that you had no qualms about getting her to help you get rid of the gun in the lake, putting her in legal jeopardy, when you got into the shooting incident with your ex-girlfriend. I wish to emphasize that I am sentencing you separately for the gun offence. I only mention it here as it is a factor in assessing the global sentence. I will not be double counting the firearm as an aggravating factor on the human trafficking offence and then sentencing you separately for that firearm.

11You got a lot of money from S.D.’s sex work. I can’t say exactly how much. I appreciate that you did not demand all the money be turned over to you. From the beginning, it was a 50/50 split. However, as S.D. testified, likely due to her increasing need for the drugs she was buying from you, she was receiving very little of the money.

12In analyzing the aggravating factors, I find the following does distinguish your case from other caselaw given to me. You did not assault or use other forms of violence against S.D. You did not demand quotas or use aggressive tactics to make her work. However, you did threaten her. You threatened to kill her if she left the business and also demanded that she find a substitute if she did.

13Turning to the conditions of S.D.’s work. You probably felt that giving her a taser was offering some protection to her, but that was wrong. Then there was that incident where you put her in danger when a belligerent customer wanted his money back and you advised her to use her taser. That could only have endangered her. You also blamed her when she was robbed.

14There is the impact on S.D. I have carefully reviewed her victim impact statement. She has been greatly affected by your actions and continues to suffer to this day. Though I recognize that S.D. had some issues even before she met you, I lay the responsibility of most, if not all, of her present difficulties at your feet.

15A last aggravating factor. It is not a major one. You do have a prior criminal record. Though it is somewhat related, it is minor record. In 2014, you received a suspended sentence for an assault.

Mitigating Factors

16Turning now to mitigating factors.

17You are 31 years old. Twenty-seven at the time of the offences. The Enhanced Pre-Sentence Report (EPSR) has provided me a lot of information about who you are. An overarching difficulty I find with the EPSR is that the writer steered away from discussing the offences. That was only right, given you did not wish to speak about it as you are thinking about appealing. As a result, I have not been helped that much regarding your insight into the offences, how some of the background factors should diminish your sentence, and what recommendations there could be for your rehabilitation.

18The EPSR does tell me some things: (1) that you have strong family and friend support, (2) that there is another side to you that supports the prospect of rehabilitation, and (3) that you and your family have encountered anti-Black racism in your lives.

19Both your father and mother were immigrants from Jamaica, coming to Canada as children. They suffered overt racism as they grew up. They did not receive the benefit of academic schooling. They had times in their life when they were poor. Yet, even after divorce, they seem to have provided a nurturing and caring environment for you. Although you too suffered overt racism, especially in white neighborhoods your mother lived in, you have achieved some success. You managed to complete high school without difficulty. As a young child, you overcame a significant illness that hospitalized you for kidney issues. Both your parents remain supportive of you, despite your criminal behaviour. So too are other family members who have provided input for your EPSR. Your intimate partner is committed to stand by you.

20Everyone has described a man—a quiet, generous, and caring man—very much at odds with the crimes I have found you guilty of. Maybe they are being more loyal than candid, though one friend seems to give a more unvarnished opinion about what may have led you astray. While I recognize that likelihood, this network of support does speak well in terms of your ability to rehabilitate yourself away from a criminal lifestyle.

21You have a trade. You are working towards being an electrician. I gather that you are good at that trade and are a hard worker. This is also mitigating.

22During your time in custody, you have completed several courses. This says to me that you are a diligent person and interested in bettering yourself. This too makes rehabilitation more likely.

23So, from the EPSR, I find that the principle of rehabilitation should play a significant role in my sentence. I accept that given your minor criminal record, your background, and the supports you have, that I should not write you off with a lengthy sentence without giving thought to this important principle of sentencing.

24In terms of the anti-Black racism the EPSR mentions, I find it difficult to make a link between the racism you encountered to your offences and what has brought you to court. However, judicial notice can be taken of anti-Black racism and its effects. Moreover, the fact the EPSR writer does not set out the pathways to connect the case-specific facts and history of the offender to what I must decide does not mean that I am relieved from my duty to consider it. So, I have. The best I can say is that some of these systemic factors could well have contributed to what brings you to court and thus lessen your moral blameworthiness. Of course, I must not speculate. But I think I can conclude that the racism suffered by your family and you and the limited socio-economic opportunities that existed for you and your family, may have led you search for illegal means to improve your financial situation. This has some effect on your moral blameworthiness, but to be blunt, not too much, given the less than firm foundation I have been provided for making this connection.

25Finally, your lawyer asks for mitigation for the time you spent on bail. It is submitted that it was a strict house arrest with ankle monitoring for 690 days. This is a long time. Also, I am prepared to accept that, given that the conditions were tight, this would not have been easy. However, I have no evidence as to how this may have affected your life. Thus, I will give it some mitigating effect, but only to a modest extent. Further, I will not quantify it in exact months.

26These are the aggravating and mitigating factors.

Sentencing Principles and Analysis

27Regarding some of the cases setting out the different sentences given for human trafficking, I agree with London-Weinstein J. in R. v. Gardiner, 2020 ONSC 5954, at para. 99, that fixing a range for an offence like this is not easy. I also agree with her that generally it should be in the range of four to eight years. She gave a sentence of three years and nine months for human trafficking along with a sentence for sexual assault. Much of the authorities presented to me fall within that range: McIntosh, six years and two months; R. v. R.S., 2017 ONCA 141, five years; R. v. Jordan 2019 ONCA 607, 6 years; R. v. Lopez, 2018 ONSC 4749, five years; R. v. Jean, 2020 ONSC 624, six years; and Augustin, eight years. I note that in some recent Ontario Court of Appeal cases, with graver facts and offenders with more serious records, the court has imposed sentences in the range requested by the Crown: Wilson, 7 years reduced to 5 years as it was made consecutive to a manslaughter sentence; Burton, 8.5 years.

28The dominant sentencing principles in this case are denunciation and deterrence. I also must exercise restraint, since this will be a first penitentiary sentence for a relatively young man. Moreover, restraint is important because the judicial system must do the best it can to address the overincarceration of Black offenders. Finally, the sentence must consider your rehabilitation, which remains important. I find that there is a reasonably good prospect of it.

29The offences are serious but tempered by the fact that your control over S.D. was not as absolute as in other cases, no physical violence was used against her, and there was only a single victim. Your moral blameworthiness is high due to your active involvement, your deliberate and manipulative conduct, and your self-interested motives. On the other hand, it is mitigated somewhat by systemic factors and your background. Thus, I conclude that your sentence should be neither at the lowest end of the range, nor at the uppermost part of it.

30Looking at the sentence globally, I find the sentence proposed by the Crown is too long. It does not adequately take into account totality and your prospects of rehabilitation. For a relatively young man, a ten-year sentence for these offences, despite the aggravating factors, is too long and disproportionate.

31On the other hand, the global sentence proposed by the defence, essentially 3.5 years of jail in addition to a community sentence, poorly reflects the need to denounce and deter human trafficking and gun crime. The defence position that the human trafficking sentence be two years less a day falls significantly outside of the range for human trafficking sentences. On the facts of this case, such a sentence will do little to deter and denounce what has been decried as a form of modern-day slavery.

32In my view, the global sentence should be six years and eight months. This properly addresses both aggravating and mitigating factors including mitigation for time spent on strict bail release conditions. It meets the objectives of sentencing. The human trafficking sentence should be five years and two months. I have decided that the sentence for possession of a firearm must be consecutive to the other offences. I know you will be sentenced shortly by the Justice in Peel Region for a related firearm offence. I have not considered the shooting incident in that jurisdiction in sentencing you today. I am simply sentencing you for simple possession of the handgun. This offence, too, was serious. Fortunately, the firearm has been recovered. Keeping in mind the range for such sentences as set out in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, the fact the sentence will be consecutive, and the totality principle, I find that this sentence should be 18 months consecutive.

33Pre-trial credit must be calculated. You did 351 days of pretrial custody. Enhanced, you should get credit of 527 days.

[34] The following is how this sentence will be broken down:

• Count 1: Human Trafficking: 5 years and 2 months, less 351 days pretrial custody at 1.5:1 (527 days), resulting in a sentence of 3 years and 183 days (3 years, 6 months, and 3 days).
• Count 2: Receive Material Benefit from Human Trafficking: three years (concurrent)
• Count 5: Advertise Sexual Services: two years (concurrent)
• Count 8: Utter threat: six months (concurrent)
• Count 7: Possession of a firearm: one year and six months (consecutive)

35The further sentence will therefore be five years and 3 days.

36There will be a DNA order and a s. 109 order for ten years. The Crown left open the question of other ancillary orders that might be sought. I will entertain submissions if needed.