WARNING The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a ) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
( b ) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
Date: 2023 08 15 Court File No.: Toronto Information Numbers: 4810-998-3000064-00 4810-998-700004591-00 4810-998-300004184-00
BETWEEN:
HIS MAJESTY THE KING
— AND —
Luz Adriana GONZALEZ-VALBUENA
Before: Justice S. Chapman
Heard on: March 15 and June 22, 2023 Reasons for Sentence released on: August 15, 2023
Counsel: J. Cruess and V. Puls........................................................................ counsel for the Crown P. Mergler.................... Counsel for the accused Luz AdrianaGONZALEZ-VALBUENA
Overview
1On March 15, 2023, Ms. Gonzalez-Valbuena plead guilty to ten (10) counts of human trafficking (s.279.01) a global count of receiving material benefit from human trafficking (s. 279.02) and eight (8) counts of withholding travel documents for the purpose of human trafficking (s.279.03). A plea package of 137 pages was filed with the court and the parties agree that it accurately states the history of the offences. As well, a number of the victims provided written and/or oral victim impact statements attesting to the devastating consequences of Ms. Gonzalez Valbuena’s sophisticated exploitation of them as part of her industrial scale human trafficking scheme.
2The Crown seeks a total sentence of 11 years custody with credit for time served. The defence seek a sentence in the range of 6 to 7 years with credit for time served, including enhanced credit given the particularly harsh terms of Ms. Gonzalez-Valbuena’s pre-sentence confinement in protective custody. I find a fit sentence in all of the circumstances, to be one of 8 years minus presentence custody, and I impose that global sentence along with certain ancillary orders.
Facts
3Over the course of nearly four years Ms. Gonzalez Valbuena employed five different homes to house up to approximately 60 Mexican foreign nationals at a time. She used various methods to recruit Mexican foreign nationals to come to Canada purportedly for work and a better life. She promised them jobs and housing and she did so using a fake employment agency. When the victims arrived in Canada, they soon learned that the conditions promised did not match reality.
4Some of the victims fled Mexico due to persecution for things like sexual orientation. Others fled due to safety concerns in Mexico. All were vulnerable once in Canada without authorization to work and an inability to speak English. In nearly every case she demanded and withheld the victim’s passport as a “deposit” to ensure the victim did not leave without paying her.
5During each worker’s stay the offender would arrange the victim’s work and was typically paid directly by the victim’s employer for their work. She would then pay the victim some portion of the earnings, often at a rate lower than minimum wage, if she paid them at all. She typically took over ½ of the victims’ wages.
6In addition, she charged them $500.00 or more a month for rent and arbitrarily deducted various other random sums from their income. The rent charged was illegal for employer room and board under the Employment Standards Act. Many of the victims spent much of their time sleeping on blow up mattresses in the basement of a house that they shared with numerous other Mexican nationals. The living conditions were abysmal and often involved inadequate heat and no hot water.
7Ms. Gonzalez-Valbuena repeatedly employed verbal abuse of victims including threats to call immigration on them if they stepped out of line and made repeated derogatory comments about their nationality or sexual orientation. She employed all of these tactics to create an environment of threats, fear and insecurity causing the victims to provide work for her.
8By employing threats of deportation to Mexico – a country that was not safe for the victims for various reasons – Ms. Gonzalez-Valbuena was able to secure and profit from their labour. She had them living in substandard conditions while making illegal deductions from their wages. She exploited the fact that many of the victims were now living in a foreign country in which many of them did not know the language or the laws. She was able to convince them that she had police and judges in her pocket and that there would be no point in the victims doing anything other than complying with her considerable demands. She harboured each of the victims for the purpose of exploiting them.
9The accused materially benefited from each of the ten named victims’ work, enriching herself through the money she took from their wages, the rent they were required to pay, or other labours or services she demanded of them, such as providing child- care and housekeeping services. It would seem that no restitution has been made. She withheld the passports of most of the victims as a means of ensuring her control over them and she did so for the purpose of trafficking them.
10The elaborate regime she established was only interrupted by the execution of a search warrant at two of her homes on July 6, 2022, at which time numerous Mexican Nationals were located. Thankfully, they were apparently provided with immediate and ongoing support through victim services.
11During the course of the search, the police found 26 Mexican passports in Ms. Gonzalez-Valbuena’s purse, none of which were in her name. Upon her arrest she provided an inculpatory statement admitting to many of the allegations, save for those related to threatening behaviour. After a contested bail hearing on September 7, 2022, she was detained. She has been in custody from her July 6, 2022 arrest to this day. She has expressed interest in pleading guilty since her detention and even prior to receiving disclosure.
12After her arrest, the police investigation into her labour trafficking activities continued and 21 Mexican foreign nationals provided statements explaining how they were subjected to the offender’s exploitative work conditions. Police also located significant corroborative evidence as summarized by DC Mike Murphy in his will say appended to the agreed facts. It is clear that an enormous amount of work was involved in the investigation of these offences and the scope of the criminality vast.
Victim Impact
13Many of the victims filed victim impact statements and several read them out in court. One of the complainant’s describes her ongoing fear of Ms. Gonzalez-Valbuena or people associated with her. She feels powerless because she was humiliated and unable to defend herself due to her fear of consequences. She is still afraid that the offender could send someone to Mexico to harm her children or her family.
14Another victim describes the emotional impact of being made to feel like a mere object, a thing, not a person. It was extremely difficult for him to be missing family and going through this exploitation. Another victim describes the destruction of his dreams of living a good life with good people in Canada due to his treatment by Ms. Gonzalez-Valbuena.
15At least one of the victims has been diagnosed with post-traumatic stress and depression and has attempted suicide. He describes the impact on his family as well, his wife and children that were also caught up in the offender’s scheme, and the emotional impact on them. He describes the way that the offender controlled his family’s life and acted like their owner. His son had to hear the way Ms. Gonzalez-Valbuena yelled at, insulted and threatened them, including threats of deportation or jail and has been self-harming ever since. Their autistic daughter would hide in the bed and shake with fear at the sound of the offender’s voice.
16At least one of the victims was injured at work and did not receive proper medical attention. Some were accused of stealing things and made to pay for them. Others had things stolen from them. One victim describes the emotional impact on him when at times he was even kicked out of the house and had to sleep under a bridge, which he found to be degrading. They all describe feeling vulnerable and like there was no way out for them.
Circumstances of the Offender
17Ms. Gonzalez-Valbuena is 42 years of age. She is the mother of several children ranging in age from three to 21 years. Apparently, they are all in Columbia at present being raised by her parents. Her oldest daughter wrote a letter on her behalf that is filed as an exhibit in these proceedings. Her children miss her.
18Ms. Gonzalez-Valbuena arrived in Canada on September 27, 2008. She is a citizen of Columbia and a Convention Refugee in Canada. Her status as a Convention Refugee was recognized by the Refugee Protection Division of the Immigration and Refugee Board of Canada in a decision dated June 26, 2009. She has never obtained her permanent residence status.
19She made a successful refuge claim to come to Canada after leaving Columbia and living in several countries, including Costa Rica and the United States. Though the paperwork in relation to the refugee claim was not filed with the court, counsel informs the court that her refugee claim was based, at least in part, on the fact that when she was 16 years old and living with her parents in Columbia, she was kidnapped and held hostage in the jungle for 6 months by FARC gorillas. During this time, she was sexually violated. Her parents have written a letter to the court setting out something of the circumstances of that tragic incident. For reasons elaborated upon below, I find this to be a very significant mitigating circumstance in this case.
20Ms. Gonzalez-Valbuena is not a first offender. She arrived in Canada as a refugee claimant in 2008 and was married in 2010. That marriage resulted in a number of criminal convictions against Ms. Gonzalez-Valbuena.
21On December 19, 2014, she was convicted of dangerous operation of a motor vehicle, assault with a weapon and failing to comply with a probation order. She was sentenced to a total of 75 days custody, with 105 days spent in pre-sentence custody, 18 months of probation, a 12 month driving suspension and a ten year weapons prohibition.
22The circumstances involved Mr. Gonzalez-Valbuena and the victim, her then husband, attending church for a baptismal meeting. As they left the meeting, they had a verbal disagreement. As the victim started to walk away towards his own car, she threatened to smash his car. The victim became fearful and started to run towards his car and managed to get into the driver’s seat. As he did so, Ms. Gonzalez-Valbuena rammed her SUV into the driver’s side door of the victim’s car as he sat in the driver’s seat unable to move. She reversed her car and continued to ram her SUV multiple times into the victim’s car. Finally, the victim drove away with the bumper to his car hanging off. The victim sustained injuries. Their young child was also in his car at the time.
23At the time of these events Ms. Gonzalez-Valbuena was subject to a peace bond as a result of a previous domestic assault charge. She was also on probation in relation to an earlier incident involving her March 28, 2014, conviction for assaulting a peace officer. The circumstances leading to the imposition of that probation order involved a radio call in the early morning hours of December 22, 2013, in response to which the police attended a bar in Toronto for the purpose of arresting an intoxicated and belligerent Ms. Gonzalez-Valbuena. As she was being arrested, she pushed and pulled away from officer. She resisted arrest by kicking at and attempting to bite the officers. When they finally got her into the scout car, she was kicking the doors and windows and yelling at the officers. She managed to kick out the window frame of the door of the cruiser.
24As well, on January 23, 2015, she was convicted of possession of property obtained by crime and the sentence was suspended with 12 month probation imposed. On August 11, 2015, she was convicted of failing to comply with a probation order, namely the condition that she have no contact or communication with the victim of the assault with a weapon conviction, that is her then husband and father of her child. Her husband had custody of their child but pursuant to a court order she was permitted to see their child for 2 hours a week in the presence of a Children’s Aid Society worker so long as she gave her husband time to leave the premises before she did. Despite the no contact terms of the court order, she repeatedly texted the victim in hopes of discussing their relationship. Further, on one of the supervised access visits Ms. Gonzalez-Valbuena followed the victim and their son as they left the visit. She became aggressive during this encounter causing the victim to fear for his safety. He ran away from the situation along with his son and immediately called the police.
25To be clear, Ms. Gonzalez-Valbuena has already been sentenced in relation to these matters and she will not be sentenced for them again. However, the fact of the convictions, and some of the underlying circumstances, reflect on her prospects for rehabilitation and the need for specific deterrence.
The Principles that Apply
The Principles of Sentencing
26Section 718 of the Criminal Code sets out the fundamental purpose and objectives of sentencing. Denunciation requires that a sentence express society’s condemnation of the offence that was committed: R. v. Bissonnette, 2022 SCC 23 at para. 46. Deterrence has two forms. Specific deterrence is meant to discourage the offender from reoffending whereas general deterrence is intended to discourage members of the public who might be tempted to engage in the criminal activity for which the offender is convicted: R v. Bisonnette supra, at para. 41. The fundamental principle of sentencing is one of proportionality, which I elaborate upon below.
27In addition, s. 718.2 of the Criminal Code sets out other principles which must be taken into consideration in imposing sentence. Section 718(2)(a) states that the court shall consider increasing or reducing the sentence to account for any relevant aggravating or mitigating circumstances relating to the offences or the offender. Section 718.2(b) to (e) outline the other considerations a sentencing court shall take into account, and I have considered those factors carefully in imposing sentence in this case.
Human Trafficking Cases
28Human trafficking attracts a maximum penalty of 14 years custody. This speaks to the seriousness with which Parliament views the offence. As stated by Justice Glithero in R. v. Domotor, 2012 ONSC 4300, at paras 50 and 51:
… this country has a long and strong tradition of respecting human rights and dignity, and a strong tradition of providing assistance to those who require it, and a strong tradition of being welcoming to people from other lands. As Canadians we are proud of these values that are central to our being and when our values are abused, flagrantly, as they were by these three individuals, we are offended and intolerant to those who behaving in this fashion. Modern day slavery is disgusting to us and it offends our core values.
29General deterrence, denunciation and specific deterrence are paramount sentencing considerations for offences involving human trafficking given the “callous, cruel and repulsive nature” of these crimes: R. v. Augustin, 2022 ONSC 5901 at para. 88.
30There are very few sentencing decisions dealing with labour trafficking, as in this case, unlike sexual trafficking which sadly has already developed a robust body of jurisprudence. However, these are not separate offences. They are different ways in which the same offence may be committed. It is generally acknowledged that sexual trafficking involves a unique, gendered form of degradation and exploitation and can be seen as a generally more egregious than labour trafficking. That being said, the specific methodology of exploitation used by a perpetrator and the nature of its impact on victims in any given case should be assessed on its own facts rather than categorically. It is difficult to imagine a worse form of exploitation than sexual trafficking. But there are labour trafficking cases that come close in terms of the sheer breadth of the criminality, the morally culpable nature of the conduct, and the serious physical, psychological and financial harm occasioned. Again, each case must be considered on its own individual facts and as such the human sex trafficking cases have some relevance to sentencing in this case.
31There are a number of reported sentencing decisions involving sex trafficking of victims, some of them children. The range of sentence imposed in such cases is understandably very broad and difficult to define given the infinite circumstances which the offence can be committed: R. v. Gardiner, 2020 ONSC 5954 infra at para. 99. A review of some of the case law demonstrates a possible range of anywhere from 4 to 23 years custody. A summary of some of the cases provides insight into the mitigating and aggravating circumstances properly considered in human trafficking cases at large:
R. v. Moazami, 2015 BCSC 2055, the offender was convicted of many sexual offences against 11 victims, 8 of whom were children, as well as a single count of human trafficking in relation to those same individuals. Moazami employed violence, threats, intimidation, coercion and in some cases drugs to compel the victims to provide sexual services for 2.5 years. He was 31 years old at the time of sentencing, with an unrelated criminal record and a difficult childhood, and was sentenced after trial to 23 years custody.
[R. v. Copeland (unrep’d SCJ, April 2019)](R. v. Copeland (unrep’d SCJ, April 2019)), the offender was convicted of numerous sexual offences and one global count of human trafficking in relation to 5 victims (including 2 children) over the course of 10 years. He concocted a series of lies about his background, became romantically involved with his complainants and manipulated them into performing sexual acts on strangers, often while he watched and recorded. He threatened to expose his complainants, distribute sexual images/videos, take them to court if they left or did not do as he wished. He was sentenced to 14 years custody.
R. v. Burton, 2018 ONCJ 153, was convicted of 9 counts, including human trafficking, material benefit from human trafficking and withholding passports in relation to two victims. Both victims had some involvement in the sex trade prior to meeting Mr. Burton but the offender employed a boyfriend pimp approach on one and took the passports of both to secure their compliance in his exploitive regime. He took all of the money they made from their sex work. Though he did not use overt violence he did use significant fear in order to manipulate and control them. He had a significant criminal record, including multiple convictions for sexual assault, and after trial he was declared a dangerous offender and sentenced to a total of 10.5 years of custody to be followed by a 10 year long term supervision order.
R. v. A.E., 2018 ONSC 471, the offender was convicted of human trafficking and other offences in relation to two victims both of whom were young women looking to make money in the sex trade. He employed threats of violence, and some actual violence, in relation to both women one of whom he exploited over the course of 3 to 4 years and the other over a period of a few months. He took all of their money and convinced them that he was investing it and that they were building an empire together. The 30-year-old offender has a lengthy criminal record, including a youth conviction for murder, but was apparently a model inmate in presentence custody. He had a difficult childhood and was facing deportation by virtue of the convictions. He was sentenced to a total of 10 years custody.
R. v. Mohsenipour, 2023 BCCA 6, two offenders were convicted of 19 counts including human trafficking and receive material benefit from human trafficking and were sentenced to a total of 10 and 9 years respectively. The offences involved the sexual trafficking of 3 victims (one under 18), for a period of approximately 3 years. The offenders ran an escort service out of Vancouver and Edmonton and employed threats and actual violence to secure control over the victims.
R. v. Antoine, 2020 ONSC 181, was convicted of 5 counts including human trafficking and receive a material benefit from human trafficking and was sentenced to a total of 8 years. The conduct involved the sexual exploitation of two victims, one over the course of a few months and one over the course of a few days. There was no violence of threats of violence employed. However, both victims were young and vulnerable and their drug addictions were exploited by the offender, who provided them both with narcotics, so as to maintain control over them.
R. v. Gardiner, 2020 ONSC 5954 involved a conviction for one count of assault, one count of sexual assault and one count of human trafficking in relation to one victim over a period of 7 months. The offender was 31 years of age at the time of sentencing (27 at the time of commission) and had no criminal record. The court found the scheme to be unsophisticated. The offender engaged in significant community service prior to sentencing and Justice London-Weinstein therefore reduced the 9 year sentence she was contemplating to one of 7 years.
32For sentencing in sexual trafficking cases see also: R. v. Myers, 2023 ONSC 1015; R. v. Augustin, 2020 ONSC 5901; R. v. A.S., 2017 ONSC 802; R. v. Jordan, 2019 ONCA 607; R. v. Crosdale, 2019 ONCJ 3; R. v. Sinclair, 2020 ONCA 61; R. v. Lopez, 2018 ONSC 4749.
33There is only one reported case dealing with the sentencing of labour traffickers and it therefore provides the most guidance in determining an appropriate sentence in the instant case. In R. v. Domotor, 2012 ONSC 4300 Justice Glithero sentenced three individuals from the same family all of whom plead guilty to participating in an elaborate human trafficking ring. There were 19 victims involved and the conduct took place over the course of 2.5 years. A husband and wife and their adult son were all major players in a large family criminal organization operating out of Hungary and Canada. The victims were recruited in Hungary and promised good work conditions and pay along with airline tickets so that they could fly to Canada. Once in Canada they were required to live in the basement of the offender’s home in poor conditions. They spoke no English and were coached to make false refugee claims, collect social services and then forfeit the proceeds to the offenders. The victims were employed in the offender’s construction company and were paid little to nothing for their labour.
34The victims of the Domotors had their passports confiscated by the offenders and were the subject of threats and in one case actual violence. They were directed not to leave the house and given scraps of food to eat. Their families in Hungary were threated and intimidated by the original recruiters when charges were laid in Canada. The husband was sentenced to 7 years custody, which was the maximum sentence suggested by the Crown. The wife was given credit for 3 years in presentence custody and sentenced to time served and the 21 year old son was sentenced to three years custody. The two adults had minor criminal records. The scheme was found to be premeditated and designed to take advantage of the relaxation of Canadian Immigration policy, as well as an abuse of social assistance programs. It is perhaps noteworthy that the sentencing judge imposed the maximum sentence proposed by the Crown in this case. It is also noteworthy that the case was decided 11 years ago and as noted by Justice London-Weinstein in the Gardiner case, there has been some evolution of the sentencing principles that govern human trafficking since that time.
35In cases involving numerous convictions for different offences in relation to numerous victims over a lengthy period of time, such as in human trafficking cases, it is important to carefully consider the principle of totality and its interaction with consecutive versus concurrent sentences. It is important that the scale of the criminal conduct be reflected in the sentence along with the experiences of and impact on the individual victims. As stated by Ottenbreit J in R. v. McLean, 2016 SKCA 93, in addressing a sentencing that involves multiple offences against multiple victims, care must be taken to not treat such cases as singular events as this runs the risk of allowing offenders to commit crimes “cheaper by the dozen.” It also denigrates the experience and trauma of the individual victims.
36On the other hand, the sentence cannot amount to a crushing disposition for the offender. The over-arching principle in sentencing is always one of proportionality. I am guided by the Court of Appeal’s decision in R. v. Stuckless, 2019 ONCA 504, in particular at paragraph 78:
When consecutive sentences are imposed, the totality principle is designed to ensure that the imposition of consecutive sentences does not result in a total sentence that is unjust. The application of the principles was explained in Jewell, at p. 279 CCC:
In my view, the appropriate approach in cases such as the two under appeal is to, first, identify the gravamen of the conduct giving rise to all of the criminal offences. The trial judge should next determine the total sentence to be imposed. Having determined the total sentence, the trial judge should impose sentences with respect to each offence which result in that total sentence, and which appropriately reflect the gravamen of the overall criminal conduct. In performing this function, the trial judge will have to consider not only the appropriate sentence of each offence, but whether in light of totality concerns, a particular sentence should be consecutive or concurrent to the other sentences imposed [p.770].
And at paragraph 80:
By first identifying the gravamen of the entirety of the offending conduct, this approach aids in ensuring that the sentence is proportionate to the offending conduct and the offender before the court. The imposition of consecutive sentences should not lengthen the sentence imposed beyond what is just and appropriate: R. v. M. (C.A.), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28 at para. 42. At the same time, however, the offending conduct should not be viewed in a compartmentalized fashion that minimizes the interrelation of the crimes and the corresponding heightened gravity of the offences and moral blameworthiness of the offender.
37In imposing sentence, I must consider the fundamental principle of sentencing set out in s. 718.1 of the Criminal Code which is proportionality. Proportionality requires that the sentence reflect the gravity of the offence and the responsibility of the offender. Proportionality also has a restraining function and serves to guarantee that a sentence is individualized, just and appropriate: R. v. Bissonnette, 2022 SCC 23 at para. 51.
Analysis
Labour Trafficking and Domestic Servitude
38This case involves different forms of labour trafficking including paid employment and domestic servitude. It also involves the commission of offences that contravene the Immigration and Refugee Protection Act, in particular counselling someone to lie to an immigration officer and the employment of a foreign national in an unauthorized manner contrary to s.124(1)(c) of the Act.
39There are ten victims that are the subject of the particular counts in the information, but it is agreed that I am to take into account all of the agreed facts including the experiences of the 21 victims that provided statements to the police, in order to assess the seriousness of the conduct. As well, there were a variety of tools and techniques that Ms. Gonzalez-Valbuena used to exploit the victims, ranging from threats of physical violence, to threats to deport, to financial coercion, to degrading and belittling comments directed to their sexual orientation and national identities. The victims were required to provide services in different kinds of labour ranging from paid employment in fields like hotel cleaning and butchery to in some cases being essentially used as domestic slaves.
40In this case, the victim impact is very serious. It speaks to the devastating life- long effects of human trafficking. Some of the victims discuss feeling like mere objects owned by Ms. Gonzalez-Valbuena. Many of them lived in a state of constant fear of being reported to immigration or the police. Many of them were controlled through threats made by Ms. Gonzalez-Valbuena concerning their families in Mexico, alluding to her alleged connections to the cartels. To the victims, who had family members in Mexico, these threats were very real and compelling.
41It is difficult to provide anything like a complete recitation of the experience of each of the victims. They are all varied in terms of the nature and duration of the exploitation, the type of labour provided, their living conditions, the nature of the threats used to secure compliance, etc. However, I will refer to the experiences of some of the victims to shed light on the tragic circumstances of what is aptly referred to as modern day slavery. The central feature common to all of the conduct is Ms. Gonzalez- Valbuena’s leading role in the offending and her expectation of substantial financial and other material advantage from an industrial scale regime of human trafficking.
42One of the named victims, Ms. S. A. was working for Ms. Gonzalez-Valbuena for essentially 24 hours a day. She left Mexico due to threats from the cartel. She was responsible for looking after the offender’s children and was made to sleep in the children’s room. For her work she was paid approximately $14.00 a day. She wasn’t allowed to go out of the house for other jobs because of her duty to look after Ms. Gonzalez-Valbuena’s children. She was repeatedly yelled at and threatened by the offender and poorly treated over the course of three (3) months, between December 2019 and March 2022.
43Mr. M.L.H. was exploited over the course of nearly four years. He spent his first two weeks in Canada sharing a space with 24 other male Mexican Nationals. Ms. Gonzalez-Valbuena used him to clean her house, wash her car, and maintain her property. She also brought his wife, Ms. A.R., into the exploitive scheme just over two years into his term as a victim. They were both threatened in various ways including through the control of their passports and by reference to Ms. Gonzalez-Valbuena’s purported cartel connections in Mexico, where their families live. M.L.H. and A.R. had their child taken away from them for days on end as a means of controlling them. M.L.H. developed a medical condition that was left untreated. He attempted suicide twice. Ms. A.R. was herself trafficked for nearly two years.
44Two of the named victims, Ms. P.C.A, and her partner Ms. M.M.G. were exploited over the course of two months in 2018. Both of these women fled Mexico due to persecution for their sexual orientation. They were both initially housed in a basement by Ms. Gonzalez-Valbuena, on an inflatable mattress with 20 other Mexican nationals. Both of their passports were taken away from them by the offender as a “deposit”. They worked at a meat store as a butcher and much of their income was taken by Ms. Gonzalez-Valbuena. So many deductions were taken from their pay that they were often left with as little as $20 or $30 a month to live on. Ms. P.C.A. was also used to look after Ms. Gonzalez-Valbuena’s children. They were both regularly verbally abused by Ms. Gonzalez-Valbuena. One of the means of exploiting them was to belittle their sexual orientation, which was the very reason that they had to leave their home in Mexico. Like so many of the other victims she repeatedly threatened these individuals that she would report them to immigration or police and that they would be deported or worse.
45Four years later another named victim, Ms. Y.T.G., was exploited over two months in June and July of 2022. She was manipulated into providing free childcare and house cleaning services to the offender while at the same time working in housekeeping at the Marriot Hotel. The offender repeatedly belittled this victim’s worth as a person and as a Mexican and would go through her phone as a means of controlling her.
46Ms. L.H.M. was subjected to explicit abuse, in that the offender told her that she could not leave no matter how much she wanted to. She was subjected to the threat that her family in Mexico would be murdered or harmed if she was non-compliant. The offender threatened to sex traffic her and took some steps towards this objective though her arrest interrupted the ultimate execution of this plan. This victim overheard the offender discussing money laundering with another human trafficker.
47When C.R. dared to ask his employer how much he was paying for his services, Ms. Gonzalez-Valbuena made an example of him and kicked him out. She lied to this same person and told them that he could not get a driver’s license or other identification in Ontario or that this would cause a problem for him in Mexico. She had Mr. J.Q. cooking meals for the other victims. During his six days there he witnessed the offender being verbally aggressive with everyone. If someone came home at 11:00 pm they were locked out. F. L. was not allowed to cook or leave the house or use hot water in the shower during his year long exploitation. He was also sexually harassed by Ms. Gonzalez-Valbuena. She told him he was “nothing”.
48The experience of A.G. is particularly unique in that he was trafficked for 4.5 years and involved in an abusive domestic relationship with Ms. Gonzalez-Valbuena for some of that time. He returned to Canada to pursue a relationship with her, as they had a child together, and then he was ultimately trafficked by her. She tried to involve him in her labour trafficking regime and when he refused she kicked him out. He now has no access to his child and fears that the child is living in Columbia. It would seem that he is right.
The Withholding of Passports
49Another important feature of this case is the withholding of passports as a means of facilitating human trafficking. Though linked to human trafficking, this is a separate offence and one that itself carries a maximum sentence of five years on its own. The Crown suggests that Parliament has made this a separate offence and to give meaning to Parliament’s intention in doing so, the sentences imposed on these counts should be concurrent to one another but consecutive to the sentences imposed for human trafficking. It would seem that the legislator intended to protect a unique legal interest, namely the control over one’s own travel documents and with it the liberty to travel home, free from the exploitation of those that would take advantage of their undocumented status and vulnerability. Ms. Gonzalez-Valbuena not only seized the passports of the majority of her victims as a tool of controlling their movements, but also in many cases used them as a form of leverage for financial gain, demanding money for their return.
The Aggravating and Mitigating Factors
The Mitigating Factors
50Ms. Gonzalez-Valbuena has plead guilty to these offences, and she is entitled to considerable credit for doing so. It has saved the victims the additional trauma associated with having to come to court to testify and be challenged on their account as to the circumstances of their exploitation and degradation. As well, it has saved a great deal of court time as this was a massive investigation, and it would no doubt have taken considerable court time to try this case. Further, and significantly, she expressed her desire to take responsibility for her conduct by pleading guilty very early on in the proceedings, even prior to disclosure. I take this as a sign of some remorse and certainly a willingness to accept responsibility for her conduct.
51Ms. Gonzalez-Valbuena has had a challenging life. As already indicated, when she was a teenage girl, she was kidnapped by FARC gorillas in Columbia and held captive for 6 months in the jungle. During this time, she was raped and subjected to other atrocities. It could fairly be said that she was herself sexually trafficked as a child and that has no doubt traumatized her for life. Her parents attest to this fact in their letter of support for her. They want her home and are currently looking after her children, some of whom are quite young. The fact that she cannot be involved in the raising of her own children for many years to come is a significant collateral consequence of any custodial sentence and therefore a mitigating factor in this case.
52As well, I am also going to give some additional credit for time served in unusually harsh circumstances based on the submission that she has been in protective custody throughout her time in presentence custody, albeit for her own protection. Apparently she has not access to yard throughout her entire stay in custody.
53Further, though it is not yet entirely clear what the immigration consequences of these convictions will be for Ms. Gonzalez-Valbuena, it may well be that she will be deported to Columbia upon the completion of her custodial sentence. The legal picture is complicated by virtue of her status in Canada as a refugee. Nonetheless, I take those potential immigration consequences, and the psychological threat of them hanging over her, into account in mitigation of sentence.
The Aggravating Factors
54Ms. Gonzalez-Valbuena is not a youthful first offender. She is now 42 years of age, and she has a criminal record in Canada, including for offences of violence against an intimate partner.
55The conduct she engaged in took place over a considerable period of time, 4 years, and was only abated by virtue of her arrest. Each day over the course of those four years she made the continued commitment to engage in this criminal conduct. Throughout this time, she abused and exploited numerous people in a variety of ways. She appears to have tailored her approach to each victim in such a way as to exploit their particular vulnerabilities. To them, the threat of being reported to the police or immigration authorities was real. So too were the threats made in relation to family in Mexico through Ms. Gonzalez-Valbuena’s purported connection to the Cartels. She augmented her power and control over the victims by denigrating them based on sexual orientation and nationality and she did so while purporting to have the police and judges in Canada under her influence.
56There has been no meaningful gap in her involvement in the criminal justice system from 2013 to the time of the commission of these offences. It was just a year after she completed her last period of probation that she began human trafficking C.A. and her partner, that is in the Fall of 2018, and it is clear from their statements to police that when they arrived in Canada there were already 20 other Mexican foreign nationals under her control. She continued to traffic foreign nationals for nearly four years until the execution of search warrants at two of her properties on July 6, 2020. That is ten years of uninterrupted and escalating criminality.
57She expertly took advantage of the vulnerabilities that come with working illegally in a foreign country and that is largely unique to human trafficking. The victim impact statements really speak to the vulnerability of an immigrant who comes to a country in the hopes of a better life only to have their dreams taken away by a human trafficker. As a foreign national working in a country without a work permit one is susceptible to ill treatment by employers and few employment opportunities. These victims did not have supports in the community. They didn’t speak English. They didn’t know the laws and customs of Canada and were misled in this regard.
58The threat to be deported to Mexico had a different meaning for each of the victims and the offender exploited her knowledge of their specific fears. For example, one couple she exploited nearly had their son abducted in Mexico and were in Canada to escape persecution. With another couple under her control, she took away their young son for days at a time as a means of controlling them.
59Further, her course of conduct involved systemic violations of the Employment Standards Act including the requirement of a minimum wage, which was $15.00 an hour at the time. Most of the payments were routinely well below minimum wage. Further, and in contravention of the act, as their employer she routinely demanded further wage reductions in relation to room and board that were illegal for her to claim. The maximum and employer can charge an employee for room and board, that is a private room with daily food provided, is $377.00 a month. She was providing them with non- private spaces and suboptimal living conditions for $400.00 and $500.00 a month in contravention of the Act.
60There were many people living in limited space, some sleeping on inflatable mattresses in the basement next to many others, and there were limits on showers and heating. Sometimes she would accuse them of stealing things and then deduct from their pay for her purported loss. These factors contributed to the overall cumulative impact of the exploitation on the victims.
61All of the workers were employed illegally and in contravention of s.124(1)(c) of the Immigration and Refugee Protection Act, which is an offence that itself carries a maximum of two years custody. In some cases, work permits were promised and dangled like a carrot in order to manipulate victims. She coached the victims on what lies to tell the immigration authorities at the border and searched their phones and deleted incriminating communications she had sent them. In some cases, the victims were not permitted to leave the house in groups. When she was unhappy with Mr. C.G., she explained to him that if he was not deported, he would be killed. In short, this was a cruel, sophisticated and carefully executed regime of human trafficking.
62Also, very aggravating is the victim impact, some of which I have already touched on. The exploitation of these victims caused mental health issues in many cases. Some of the victims suffer from PTSD, some have contemplated and attempted suicide, others are in treatment. Some of the trauma is inter-generational, such as in the case of the son of L.H., who is now experiencing the effects of the harm and is abusing his sister. Some of the victims had to beg for money and others were locked out of the house in punishment and had to sleep outside under a bridge. Many of them describe feeling like mere objects, owned by Ms. Gonzalez-Valbuena. The victim impact is very serious and constitutes a significant aggravating circumstance.
Conclusion
63In conclusion, I largely agree with the way that the Crown has structured the sentencing in relation to each count in this case and mostly adopt it. However, I find that a total fit sentence, having regard to the principles of totality and proportionality, is one of 8 years minus the standard Summers credit for time spent in presentence custody.
64It is agreed that the presentence custody in this case started on the day of the arrest, that is July 6, 2022. As of today, that is 405 real days, which is enhanced to 608 day – or 20 months custody. That means she has a total credit of twenty months in custody to be noted on the record, leaving a remaining sentence of 6 years and 4 months to be served as of today.
65In addition, the Crown seeks a DNA order in relation to what is a primary designated offence, a lifetime weapons prohibition and a s. 743.1 non-communication order with all 21 of the named individuals listed in the plea package. These orders are not opposed by Mr. Mergler and are appropriate in the circumstances. Accordingly, I made these orders.
Released: August 15, 2023 Signed: Justice S. Chapman
