Court File and Parties
COURT FILE NO.: CR-21-50000086-0000
DATE: 20230104
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
TAPIWA MUSARA
Defendant
Counsel:
Julia De Vuono, Susan Orlando, for the Crown
Megan Andrews, for the Defendant
HEARD: December 9, 2022
Justice S. nakatsuru
Reasons for Judgment
[1] After a long trial Mr. Musara, I acquitted you of all offences except receiving material benefits from sexual services. I must now sentence you for this crime.
[2] The Crown seeks a sentence of 3 years. Your lawyer asks for a conditional sentence of 12 months.
[3] You were in pretrial custody for 13 days before getting bail. Credited on a 1 to 1.5 basis, you will get a sentence credit of 20 days. Your lawyer asked for further credit due to a Charter breach that I found in an earlier decision I made in this case. I will not give you further credit. I already gave you a remedy for that breach: the exclusion of evidence.
[4] The principles of sentencing are well-known to me. They are also well-known to lawyers. Indeed, you, yourself, and the public, generally, probably know a lot of about the important rules of sentencing. The bottom line is that the sentence, after considering those rules and applying them to the facts of your case, must be fit and proportionate to the seriousness of your crime and the degree of your responsibility. It must meet all the goals of sentencing.
[5] To start, I must assess the seriousness of the offence. It is serious. But your case is unusual for an offence like this.
[6] The Crown described the offence of receiving a material benefit from sexual services as being like "passive pimping", as opposed to the offence of procuring, which is "active pimping". That is not a bad description. But what makes your case unique is that you were not a "pimp" at all. The victim S.D. clearly testified that you were not that to her. I found on the facts you were not. Basically, you were a drug trafficker and sold S.D. cocaine. You received payment for the drugs, knowing that the money was from S.D. providing sexual services. You did not fall within any exception to the offence since you encouraged her to continue sex work. You did that because you wanted her to remain your customer and because of your friendship with Mr. Meyers, S.D.'s "pimp".
[7] The lawyers could not find a case where a judge sentenced someone on similar facts for a stand-alone offence of receiving material benefits from sexual services.
[8] The Crown referred me to some decisions that set out a list of factors to consider on sentencing for this crime.[^1] Those decisions are only helpful to a degree. The factors are more relevant to a "pimp" relationship. Still, some apply.
[9] There are factors that make your crime worse. S.D. was young, 18 years old. You were a decade older than her. She was further vulnerable when you committed your offence because you knew she had a bad addiction. I can infer that you received quite a bit of money from selling her drugs though I cannot really say how much.
[10] At the very last minute after sentencing submissions were completed, S.D. provided a victim impact statement. So that her voice was heard and the impact on her of your crime could fully be understood, I admitted her statement.
[11] S.D. has suffered greatly. But even without that statement, I had already figured out that she has been badly affected by her experience having seen and heard her testify. While that is an aggravating factor, I agree with your lawyer that given Mr. Meyer's conduct towards S.D., it is much more likely that he was the one that contributed to the impact on S.D., not you.
[12] In assessing the seriousness of your crime, I also appreciate that you were acquitted of sexual assault, threatening, procuring and human trafficking. You did not exploit her. You did not participate or assist in her offering sexual services. You did not commit any acts of violence or make threats. Indeed, you offered S.D. a place to stay when she had to leave a place she felt was unsafe. You did not exercise any control, direction, or influence over her movements. She was quite independent. Your conduct of receiving a material benefit lasted perhaps 2 to 4 months. You had little knowledge of her sex work aside from the fact she did it in connection with Mr. Myers. You were not aware she was being exploited by him. Though I agree with the Crown that the mere fact of the acquittals on these charges does not mean I cannot consider any evidence of exploitation by you on sentencing, on the facts as I found them, there is none. The essential nature of your relationship with S.D. was that you were her drug dealer. You got money for the drugs you sold to her, and you encouraged her to keep working. But that is all that you did. In this way, the facts of your case are quite different from the cases the Crown relies on.
[13] You were not on trial for drug trafficking. I am not sentencing you for the offence of drug trafficking. However, this does not mean that the fact that you sold drugs to S.D. is irrelevant on sentencing. It is. In part, because the purpose of the law – to denounce and eradicate the exploitative nature of sex work and to protect sex workers – was undermined by your actions. In this way, your crime remains serious.
[14] At the same time, I appreciate that you did tell S.D. to seek rehabilitation and help for her addiction. While this does show that you had some humanity towards S.D. and her plight, your basic motive for saying this was self-interested. Moreover, you took not real steps to help her. You continued to sell her cocaine. Although, on the last occasion, you did say you would stop selling her drugs if she did not get help.
[15] The other part of the offence that needs to be carefully assessed is the counseling and encouragement.
[16] I find that your comments to S.D. to "work" in the sex trade were not persistent or aggressive. Looking at the whole of the evidence, it strikes me that such comments were made infrequently, and the context was one where you were criticizing her for a perceived lack of motivation. Make no mistake, your counseling and encouragement was in earnest and driven by your own self-interest and your friendship with Mr. Myers. However, I found that your remarks had no effect on S.D. S.D. continued in the sex trade largely because of Mr. Myers' direction and influence even though he was in custody. In short, the circumstances of your counselling and encouragement were not the most serious.
[17] In sum, while there are factors that aggravate your offence, there are also factors that limit its gravity. Put another way, while the offence calls for denunciation and deterrence, I believe a range of options other than the penitentiary term argued for by the Crown can meet these objectives.
[18] There are several mitigating factors.
[19] At the time of the offence, you were around 28 years old. You are essentially a first offender. While you have a criminal record, it is for a simple possession of drugs and a fail to comply in 2017 in Alberta, where you had to pay a $500 fine.
[20] There is no plea of guilt to mitigate your actions, but you have expressed remorse in the Pre-sentence Report. Remorse without the acceptance of responsibility is not mitigating. However, I do accept that you have some insight into for your actions and the harm it caused S.D. Your present attitude taken towards your crime, in my view, does not stand in the way of your successful rehabilitation.
[21] The Pre-sentence Report is a very positive one. It is well sourced. Your parents, trained to be teachers, were immigrants who came from Zimbabwe, and have well made their way in this country. You came as a young person to join them in Canada. Clearly, you have intelligence and a strong work ethic; you did well enough in school though there were adjustment issues like being bullied. Things took a turn for the worse when your parents' marriage fell apart. It seemed like this happened over some period though they formally divorced when you were 18 years old. While you worked and tried your hand at different things in college, nothing really stuck. Unfortunately, like many others who find their way into the criminal justice system, your peer group was not the best. You began to sell drugs. This was a conscious choice of yours and you did it for profit. This opened the door, through which you stepped, to the commission of this offence. But as I said, you seem to have developed insight into this, have made big strides in moving away from this lifestyle and have bettered yourself.
[22] The Pre-sentence Report and the letters of support reveal another side of you. A very pro-social one. Your family and other contacts speak highly of you and support you. Since your arrest, you have finished your culinary degree and now have a job as a chef and kitchen manager. Your employer is willing to keep you even if you go to jail. Clearly, you are a hard-working and much valued employee.
[23] The life you have built together with your spouse, Jenessa Crombie, and becoming a father to two young children has matured you. Your spouse says that regardless of the sentencing outcome, she has trust in you and the relationship. You two have now been together for several years. This relationship has been positive for you. It speaks well to your potential for rehabilitation. I believe that maturing has led you to leave the criminal life behind.
[24] Overall, given your present attitude, your supports, your character, and your actions, I find that the prospect of rehabilitation is good. Thus, my sentence must consider the principle of rehabilitation.
[25] Lastly, you are a Black man. I understand that your upbringing had more stability than others that have endured anti-Black racism and have come before me in criminal court. Yet systemic factors are not irrelevant in your sentencing. Not every immigrant to Canada shares the same experience. You and your parents, being immigrants and being Black, have faced hurdles in this country. That much is just obvious. Even if you cannot point to a specific instance of racism. Even if outwardly your father has worked hard and has become a teacher here, like in his homeland. Systemic factors have affected your education like many young Black children. As you grew older, you were a witness to violence, including gun violence. You have lived in neighborhoods that also exposed you to lifestyles that bent your path in life. Rightly, these factors diminish your moral blameworthiness.
[26] Denunciation, deterrence, and rehabilitation are all important sentencing principles in play in this case. The crime is serious, but it is a stand-alone offence with unique circumstances. It is not at the most serious end of the spectrum for such an offence. Your responsibility for the offence is mitigated by factors I have outlined. I find that your potential for rehabilitation is very good. You are close to a first offender who has not been sentenced to jail before. The principle of restraint is thus important. Given this, I find that a penitentiary sentence is not required to meet the objectives of sentencing. This is consistent with the range of sentence expressed in the caselaw where 12 months is said to be at the lower end of the range and where reformatory sentences have been given to offenders in circumstances more serious than yours.[^2]
[27] I now turn to the issue of a conditional sentence. Regarding the first part of the test, I find that permitting you to serve your sentence in the community will not endanger the safety of the community. The positive steps you have taken to rehabilitate yourself assures me of this. Moreover, while on bail for these offences, you have behaved yourself and no allegations of any breach or misconduct has arisen. I find you will not go back to the lifestyle you had in trafficking in drugs, nor will you go back to unlawfully receiving monies from sex trade workers.
[28] The Crown's central objection to a conditional sentence is that it is not consistent with the fundamental purpose and principles of sentencing; the second part of the test. I disagree.
[29] First, the law is clear that a conditional sentence can achieve denunciation and deterrence, especially if the sentence is long and the restrictions are tight. The Supreme Court made this clear in R. v. Proulx.[^3] Also, for the same offence but on different facts, Dawe J., in R. v. Beeransingh,[^4] gave a conditional sentence to an offender.
[30] Second, the unique facts of your case and the prospect of rehabilitation support granting a conditional sentence, consistent with important principles of sentencing.
[31] Third, as the Court of Appeal said in R. v. Morris,[^5] when appropriate, a conditional sentence can do much to address the problem of over-incarceration of Black offenders in our prisons. We must do more than give lip service to this remedy. This means judges must not be timid in granting a conditional sentence when it is right to do so.
[32] Finally, your lawyer submitted that immigration consequences and COVID-19 are factors I should consider. The former concerns the immigration consequences arising by virtue of s. 36 of the Immigration and Refugee Protection Act[^6] and the lack of availability of an appeal should imprisonment greater than six months be imposed. The latter deals with the fact you have asthma and have a particular vulnerability to COVID-19 in the congregate setting of jail. But the law is clear that such collateral consequences cannot render a sentence unfit or disproportionate. Also, these factors while supporting a conditional sentence, are not particularly weighty in your case. While I point this out, I find that you meet the requirements for a conditional sentence regardless of these two factors.
[33] At the end of the day, I am convinced that the fit and just sentence here is a conditional sentence of 17 months. The sentence must be longer than that suggested by your lawyer given the denunciation and general deterrence concerns. This sentence is on top of the 20-day sentence credit for your time spent in pretrial custody. The first eight months of your conditional sentence will be under house arrest and the following nine months under curfew. The restrictive conditions proposed by your lawyer, with some slight changes, will be imposed. This will be followed by a 12-month probation period with the conditions outlined.
[34] I would like to thank counsel for their helpful materials and submissions.
Justice. S. Nakatsuru
Released: January 4, 2023
COURT FILE NO.: CR-21-50000086-0000
DATE: 20230104
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
TAPIWA MUSARA
Defendant
REASONS FOR JUDGMENT
NAKATSURU J.
Released: January 4, 2023
[^1]: See R. v. Tang, 1997 ABCA 174, 200 A.R. 70, at paras. 5-11; R. v. Miller (1997), 40 O.T.C. 17 (Prov. Ct.), at para. 38; R. v. Hall, 2019 ABQB 343, 96 Alta. L.R. (6th) 186, at paras. 25-26. [^2]: See R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145; R. v. Bedard-Morin, 2022 ONCA 844; R. v. Morgan, 2018 ONSC 2007; R. v. Green (24 May 2022), Judicial District, Docket Number (Ont. S.C.); Tang; Miller. [^3]: 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 22. [^4]: 2022 ONSC 5905. [^5]: 2021 ONCA 680, 159 O.R. (3d) 641, at para. 129. [^6]: S.C. 2001, c. 27.