COURT FILE NO.: CR-22-10000325 DATE: 20240301

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – JEAN EDY DONACIEN

Counsel: M. Gharabaway, for the Crown E. Willschick, for Mr. Donacien

HEARD: February 26-27, 2024

REASONS FOR DECISION [1]

SCHRECK J.:

[1] Jean Donacien told a young sex trade worker, C.C., that if she worked with him he would invest their money and they would buy a house together. C.C. worked in the sex trade for the next few months and gave all the money she earned to Mr. Donacien. She alleges that he came to control her throughout this period and engaged in assaultive behaviour. This culminated in an altercation between them on March 7, 2020 during which Mr. Donacien locked her out on the balcony of a condominium unit. After escaping by jumping off the third-story balcony, C.C. disclosed her allegations to the police.

[2] As a result of C.C.’s allegations, Mr. Donacien is charged with human trafficking (Count 1), recruiting, holding, concealing or harbouring a person who provides sexual services for consideration (Count 2), receiving a material benefit from the sale of sexual services (Count 3), two counts of assault causing bodily harm (Counts 4 and 5), assault (Count 6) and unlawful confinement (Count 7). [2] He has elected to be tried in this court without a jury. Two witnesses testified at the trial: C.C. and a woman who witnessed seeing her on the balcony.

[3] There is no issue that C.C. engaged in the sex trade with the assistance of Mr. Donacien and provided her earnings to him. However, it is the defence position that she did so in the context of a legitimate living arrangement and that her evidence that he engaged in assaultive or controlling behaviour is not credible. While there is no dispute that Mr. Donacien locked C.C. out on a balcony, it is his position that he did so to protect himself against assaultive behaviour by her.

[4] For the reasons that follow, Mr. Donacien is found guilty on all counts except Count 5, where he is found not guilty as charged but guilty of the lesser offence of assault.

I. EVIDENCE

A. The Beginning of the Relationship

[5] In late 2019, 20-year-old C.C. was living in British Columbia and self-employed in the sex trade. She was introduced to Mr. Donacien, who lived in Montréal at the time, through mutual friends. They initially communicated on social media, then C.C. travelled to Montréal, where they met in person.

[6] C.C. testified that when she first met Mr. Donacien, she believed that they would have a boyfriend-girlfriend relationship and that he loved her. They made a plan to invest money together so that they could buy a house. Mr. Donacien told her that he would provide her with a place to stay where she could pursue her work in the sex trade.

B. C.C.’s Work in the Sex Trade

[7] C.C. and Mr. Donacien travelled to Toronto together in December 2019. Upon arrival, Mr. Donacien rented a car and a residence in Vaughan through Airbnb. C.C. posted an advertisement for sexual services on a website. The advertisement was one she had created while working in British Columbia. However, the website required payment in Bitcoin, which Mr. Donacien provided.

[8] The contact information on the advertisement corresponded to a text messaging application on C.C.’s mobile phone. Both she and Mr. Donacien could log into it and read and reply to text messages from clients. According to C.C., both she and Mr. Donacien communicated with clients. He sometimes received inquiries from clients when she was sleeping, in which case he would wake her and tell her about them.

[9] C.C. worked in the sex trade doing both “incalls” (where clients came to where she was staying) and “outcalls” (where she went to a location specified by the client). When she did outcalls, Mr. Donacien would drive her there and pick her up. He insisted that she always tell him where she was, which she testified was a “security kind of thing.”

C. The Provision of C.C.’s Earnings to Mr. Donacien

[10] According to C.C., she charged clients $200 for half an hour and $300 for an hour. She saw at least five clients a day and sometimes as many as 10 and would not sleep more than three or four hours a night. The clients would pay her in cash or by e-transfer. In either case, Mr. Donacien told her to immediately forward all the money to him, which she did.

[11] C.C. produced screenshots of bank e-transfer confirmations on her phone showing transfers to Mr. Donacien between December 2019 and February 2020. The transfers were for amounts ranging from $10 to $1340 with most being between $300 and $500. The transfers totalled approximately $15,000 and C.C. estimated that she provided Mr. Donacien with a similar amount in cash during this period. According to her, when she asked him what he did with the money, he told her that he would “invest it” and would make her feel bad for inquiring.

[12] C.C. testified that Mr. Donacien had damaged a Porsche he had rented and that the repair cost was $6000. He told her that the damage was her fault because he had been waiting for her when it occurred. In order for him to be able to pay for the repair, C.C. asked some of her clients if they could provide her with money. One client agreed to provide her with $15,000, which she forwarded to Mr. Donacien. C.C. produced a screenshot of a text message between her and the client in which the payment of the $15,000 was discussed. C.C. also had a screenshot of a social media account for this client, which included information about him. It was suggested to C.C. in cross-examination that she had obtained the money from the client by extorting him with threats to tell his wife that he had hired an escort. C.C. denied this.

D. Alleged Assaultive Behaviour

[13] C.C. testified that she initially believed that Mr. Donacien loved her. Their relationship began to change when she saw a post on social media from a woman who claimed to be pregnant with Mr. Donacien’s baby. C.C. denied that this made her jealous. However, she confronted him about it and they had an argument during which he picked her up and threw her to the ground. She suffered bruises as a result of this, which she claimed lasted for about three weeks. C.C. testified that this occurred while they were staying at a rented residence near Parklawn and Lakeshore Boulevard in Toronto, although her evidence as to when this occurred was unclear.

[14] C.C. also described an incident where she and Mr. Donacien were driving to Toronto from Montréal and he believed that she had tried to grab his bag, although it was her own bag she had tried to grab. Mr. Donacien reacted by striking her head against the car window, causing an injury to her head. C.C. had a photograph on her phone depicting an injury to the left side of her head.

E. The Balcony Incident

[15] By March 2020, C.C. had rented an Airbnb residence by herself using money she had earned through sex work. She did this because Mr. Donacien had rented another Airbnb with a friend and she did not want to share a residence with his friend. On March 7, 2020, Mr. Donacien slept at C.C.’s Airbnb. When he woke up, he asked her to drive him to his friend’s place so that he could drop off some keys. They drove to a condominium building at Front Street and Bathurst Street and Mr. Donacien went inside while C.C. waited in the car.

[16] When Mr. Donacien returned to the car, C.C. asked if she could go upstairs. She initially testified that this was because she wished to use the bathroom, but later agreed that she had wanted to see who was there. She and Mr. Donacien went up to a unit on the third floor. When they entered, Mr. Donacien told his friend that C.C. had come there to see if a girl was in the unit. Mr. Donacien’s friend blocked C.C.’s entry. She testified that she and Mr. Donacien then went downstairs, but then returned to the unit, although her evidence was unclear as to why they did this.

[17] According to C.C., once she and Mr. Donacien returned to the unit, he and his friend took her phone and started “beating on me.” Mr. Donacien approached her from behind and pinned her arms to her body. He then pushed her onto the balcony and locked her out there. She saw Mr. Donacien and his friend laughing at her through the window, after which they left the unit.

[18] C.C. was wearing only a T-shirt and was cold. She testified that she was afraid that Mr. Donacien would return and do her harm, so she decided to jump off the third floor balcony. She landed in a small enclosed space. The woman who lived there let her into the building and she then left through the lobby.

[19] As C.C. left the building, she saw Mr. Donacien and his friend in a car driving out of the building’s garage. C.C. jumped onto the hood of the car. She testified that she did so because she wanted to get her phone back. The car stopped and Mr. Donacien opened the door and threw C.C.’s phone onto the ground. C.C. picked it up and left.

[20] Miranda Hotrum, a resident of the building, testified that on that date she heard a commotion and looked down from her balcony. She saw a woman on a lower balcony pounding on the door and screaming for help. The woman asked Ms. Hotrum to call the police. Ms. Hotrum went inside and did so, after which she went to the lobby to notify the concierge about the situation.

[21] In the lobby, Ms. Hotrum saw the woman from the balcony, who appeared to be “frenetic.” The woman again asked that the police be called and said, “He took my stuff.” Ms. Hotrum saw the woman run outside and then jump onto the hood of a car in which there were several people. She then got off the hood, after which the car drove away. The woman entered a second car and drove after them.

F. C.C.’s Statement to the Police

[22] Later that day, C.C. went to the police and made a statement. The police took photographs of her showing marks on her arm, which she testified were caused by being assaulted by Mr. Donacien and his friend. She also provided the police with her phone and they extracted photographs and the bank transfer information.

[23] C.C. agreed that she had made an allegation of assault against Mr. Donacien to the Montréal police on an earlier occasion. She agreed that she did not pursue this allegation, although she was unsure whether she had retracted it. She explained that at the time, she feared Mr. Donacien because he knew where her mother lived and she believed him to be associated with members of a criminal gang. [3]

II. ANALYSIS

A. The Presumption of Innocence

[24] Mr. Donacien is presumed innocent of the charges against him and cannot be convicted of any charge unless the Crown proves each and every essential element of that charge beyond a reasonable doubt. There is no onus on Mr. Donacien to prove anything, least of all his innocence. Proof beyond a reasonable doubt is a high standard. It is far higher than proof of likely or probable guilt.

B. Assessment of C.C.’s Credibility

(i) Demeanour

[25] The Crown’s case turns primarily on the testimony of C.C., whose credibility is in issue. Assessing credibility is not an easy task. The demeanour of a witness is of limited value as an indicator of credibility or reliability: R. v. J.L., 2022 ONCA 271, at para. 6; R. v. G.M.C., 2022 ONCA 2, 159 O.R. (3d) 561, at para. 68. More objective measures include the plausibility of the evidence, whether it was confirmed by other evidence, and whether it was internally and externally consistent.

(ii) Inconsistencies

[26] An inconsistency on a significant issue can be an important factor in assessing a witness’s credibility. However, it is not the mere fact of an inconsistency that is important but, rather, the reason for it. If the trier of fact infers that the inconsistency results from the witness’s inability to keep his or her story straight, then it will have an obvious effect on the witness’s credibility and may be fatal to it. Where the inconsistency has other causes, such as an honest mistake or a faulty memory, it may have little effect on a witness’s credibility, but may be important to its reliability. Of course, in some instances the reason for the inconsistency may be unclear, in which case the burden of proof suggests that the trier of fact may have to err on the side of caution in favour of the defence.

[27] In this case, there were inconsistencies in C.C.’s evidence. The most significant inconsistencies relate to her evidence about whether she was jealous of Mr. Donacien’s relationships with other women. C.C. denied having any such feelings, but acknowledged that she had an altercation with Mr. Donacien after confronting him about a social media post in which a woman claimed to have been impregnated by him. She initially testified that she went upstairs to the condominium unit on Front Street to use the washroom, but later acknowledged that she did so to see who was there, although she did not accept that she did so because she believed a woman to be in the unit.

[28] I do not accept C.C.’s denial of being jealous. She clearly had some romantic attachment to Mr. Donacien and his association with other women made her unhappy. The fact that she was not forthright about this in her testimony may be explainable by embarrassment resulting from a realization that she had been deceived, but it is nonetheless a cause for concern.

[29] There was also some inconsistency with respect to C.C.’s explanation for jumping off the balcony in light of her subsequent behaviour. She claimed to have jumped off the balcony because she was afraid that Mr. Donacien might return and do her harm. However, this is difficult to reconcile with her subsequent conduct, which included jumping on the hood of the car in which he was a passenger. I do not view this inconsistency as particularly significant. People can experience a variety of emotions at the same time or in rapid succession, and C.C.’s fear of Mr. Donacien may have given way to anger or been overtaken by her need to retrieve her phone, which she explained she needed to be able to work and support herself.

(iii) Motive to Fabricate

[30] The presence or absence of a motive to fabricate is also a consideration in assessing credibility. However, care must be taken not to treat the absence of evidence of a motive to fabricate as conclusive proof that no such motive exists: R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at para. 29. A witness may have a motive to fabricate that is not apparent: R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 93. Also, the trier of fact must always keep in mind that there is no onus on the defence to demonstrate that a Crown witness has a motive to fabricate: R. v. Dindyal, 2021 ONCA 234, 403 C.C.C. (3d) 33, at para. 22; R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.), at para. 121.

[31] Where, as in this case, the defence relies on an alleged motive to fabricate, the trier of fact is required to consider it: R. v. S.R., 2022 ONCA 192, 79 C.R. (7th) 162, at para. 30; Ignacio, at para. 35. In this case, the defence submits that C.C.’s allegations were fabricated because she was jealous of Mr. Donacien and believed that he had been associating with other women. While I accept that C.C. was jealous, I doubt that it was to such an extent that she would fabricate these allegations and continue to pursue them four years later.

(iv) Corroboration

[32] Evidence which confirms relevant aspects of a witness’s testimony can provide comfort that the testimony can be trusted: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 40-42. In this case, many aspects of C.C.’s evidence are corroborated. The photographs taken by the police and those on her phone corroborate her evidence that she was assaulted. The e-transfer confirmations corroborate her evidence about forwarding her earnings to Mr. Donacien. The evidence of Ms. Hotrum corroborates C.C.’s account of being locked out on the balcony. While none of this conclusively proves the truth of her entire account, in my view it goes a long way towards overcoming any concerns that arise from the inconsistencies in her evidence.

[33] Subject to my reservations about C.C.’s evidence about the extent of her jealousy, I accept most aspects of her evidence as being an accurate account of what transpired between her and Mr. Donacien.

C. Counts in the Indictment

(i) Count 1 – Human Trafficking

(a) The Conduct Requirement

[34] In Count 1, Mr. Donacien is charged that he did “recruit, transport, transfer, receive, hold, conceal or harbour” or “exercise control, direction or influence over the movements of” C.C. for the purpose of exploiting her or facilitating the exploitation of her, contrary to s. 279.01(1) of the Criminal Code. The offence of human trafficking has a conduct requirement and a purpose requirement: R. v. A.A., 2015 ONCA 558, 327 C.C.C. (3d) 377, at paras. 79-82. The Crown must prove both beyond a reasonable doubt.

[35] The conduct requirement is met if the Crown proves that the accused engaged in any one of the specified types of conduct, that is, “recruit, transport, transfer, receive, hold, conceal, or harbour” or “exercise control, direction or influence over the movements of” the complainant: R. v. Gallone, 2019 ONCA 663, 147 O.R. (3d) 225, at para. 33.

[36] It is clear that Mr. Donacien engaged in some of the conduct identified in s. 279.01. He “transported” C.C. by driving her to meetings with clients. He also “harboured” her by providing her with a place to stay: R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 74; R. v. Ochrym, 2021 ONCA 48, 69 C.R. (7th) 285, at para. 32. I am also satisfied that Mr. Donacien exercised “control, direction or influence” over C.C.’s movements. He persuaded her to come to Toronto to engage in the sex trade, initially by deceiving her into believing that they would have a relationship together, and then later by engaging in threatening conduct.

(b) The Purpose Requirement

[37] The purpose requirement has two components. First, the accused must intend to do the thing or things that satisfy the conduct requirement. Second, the accused must engage in the conduct for the purpose of exploiting or facilitating the exploitation of the complainant: A.A., at para. 82.

[38] The term “exploitation” is not to be given its ordinary meaning in this context but, rather, the definition set out in s. 279.04(1), which provides that:

279.04 (1) For the purposes of sections 279.01 to 279.03, a person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.

The Crown is only required to prove that the accused’s purpose in engaging in the prohibited conduct was to exploit the complainant, but need not prove that the complainant was actually exploited: A.A., at para. 84; Gallone, at paras. 53-54.

[39] In the context of s. 279.04(1), the term “safety” includes safety from psychological harm: A.A., at para. 71. However, something more than trivial interference with psychological well-being is required: R. v. Sinclair, 2020 ONCA 61, 384 C.C.C. (3d) 484, at para. 24.

[40] There is no issue that Mr. Donacien intended to do the things that he did, so the real issue is whether he did so for the purpose of exploiting C.C., as that term is defined. It is clear from her evidence that C.C. feared Mr. Donacien after he began engaging in assaultive conduct. Counsel for Mr. Donacien points out that none of the assaultive conduct was the result of C.C. refusing to engage in sex work. Two instances were because she had engaged in jealous behaviour and the incident in the car was because he believed that she had tried to grab his bag. That may be, but his conduct made it clear to C.C. that he was prepared to employ violence when she did not behave the way he wanted her to. His overall course of conduct was to maintain control over her. She feared him and her fear was reasonable.

[41] In addition to this, C.C. was vulnerable. She did not know anybody in Toronto and had no money of her own. She initially depended on Mr. Donacien for a place to live. In these circumstances, she reasonably feared for her psychological safety if she did not do as Mr. Donacien wanted: Sinclair, at para. 15; R. v. McEwan, 2022 ONSC 4298, at para. 111. Mr. Donacien was aware of this fact and used it to his advantage.

[42] Based on the foregoing, I find that C.C. was exploited by Mr. Donacien. As noted in A.A., at para. 87, where the complainant is actually exploited, “inferring that the accused’s purpose was to exploit the victim will usually be a relatively straightforward task.” I draw that inference in this case.

[43] Mr. Donacien is found guilty on Count 1.

(ii) Count 2 – Recruiting, Holding, Concealing or Harbouring a Person Who Provides Sexual Services for Consideration

[44] In Count 2, Mr. Donacien is charged that he did, for the purposes of facilitating an offence under s. 286.1(1), “recruit, hold, conceal or harbour” C.C., a person who offers or provides sexual services for consideration, contrary to s. 286.3(1). For the reasons explained earlier, I am satisfied that Mr. Donacien at least “harboured” C.C., and there is no issue that she was a person who provided sexual services for consideration.

[45] The Crown must also prove that Mr. Donacien engaged in the conduct described for the purpose of facilitating an offence under s. 286.1(1), the offence of obtaining sexual services for consideration. There is no issue that Mr. Donacien knew that C.C.’s clients were obtaining sexual services from her for consideration, and he clearly intended to facilitate them doing so.

[46] Mr. Donacien is found guilty on Count 2.

(iii) Count 3 – Material Benefit from Human Trafficking

[47] Mr. Donacien is charged in Count 3 with receiving a financial or other material benefit, knowing that it was obtained by and derived directly from the commission of an offence under s. 286.1(1), contrary to s. 286.2(1).

[48] There is no issue that Mr. Donacien received money which C.C. had earned through the provision of sexual services. Mr. Donacien relies on the defence created by s. 286.2(4)(a), which provides that no offence is committed where the material benefit is received “in the context of a legitimate living arrangement with the person from whose sexual services the benefit is derived.”

[49] I do not accept that Mr. Donacien received the money from C.C. in the context of a legitimate living arrangement. She provided virtually all of the money she earned to him, which was far more than what would have been her fair share of their living expenses. Furthermore, s. 282.2(5)(a) provides that the defence is unavailable in cases where the accused used intimidation and coercion in relation to the complainant, which I find Mr. Donacien did in this case.

[50] Mr. Donacien is found guilty on Count 3.

(iv) Count 4 – Assault Causing Bodily Harm

[51] In Count 4, Mr. Donacien is charged with assault causing bodily harm, contrary to s. 267(b) of the Criminal Code. This count relates to C.C.’s testimony that Mr. Donacien smashed her head against the car window while they were driving to Toronto from Montréal. I accept C.C.’s evidence on this issue. The photograph of the injury to her head shows that the assault caused bodily harm that was more than trifling or transient.

[52] Mr Donacien is found guilty on Count 4. [4]

(v) Count 5 – Assault Causing Bodily Harm

[53] Mr. Donacien is charged with a second count of assault causing bodily harm in Count 5 in relation to the altercation that occurred after C.C. confronted him about the social media post of the pregnant woman. I accept C.C.’s evidence that he assaulted her. However, her evidence with respect to the injuries she suffered from this was somewhat vague and I am not satisfied beyond a reasonable doubt that they were more than trifling or transient.

[54] As a result, Mr. Donacien is found not guilty of assault causing bodily harm on Count 5 but guilty of the included offence of assault.

(vi) Count 6 – Assault

[55] In Count 6, Mr. Donacien is charged with assault in relation to the incident at the Front Street condominium. I accept C.C.’s evidence that Mr. Donacien grabbed her and pushed her onto the balcony.

[56] Mr. Donacien is found guilty on Count 6.

(vii) Count 7 – Unlawful Confinement

[57] In Count 7, Mr. Donacien is charged with unlawful confinement based on C.C.’s evidence that he locked her out on the balcony. There is no issue that Mr. Donacien engaged in conduct that prevented C.C. from “mov[ing] about according to her own inclination and desire”: R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24. There is no air of reality that he did so in self defence because C.C. was engaging in threatening behaviour. C.C. denied the suggestion that she did so and there is no evidence that she did.

[58] Mr. Donacien is found guilty on Count 7.

III. DISPOSITION

[59] For the foregoing reasons, Mr. Donacien is found guilty on all counts except Count 5, where he is found not guilty as charged but guilty of the included offence of assault.

Justice P.A. Schreck Released: March 1, 2024

COURT FILE NO.: CR-22-10000325 DATE: 20240301 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JEAN EDY DONACIEN REASONS FOR DECISION P.A. Schreck J. Released: March 1, 2024

Footnotes:

[1] An abbreviated version of these reasons was delivered orally in court on March 1, 2024. In the event of any inconsistency between those oral reasons and these written reasons, the written reasons should be taken as correct.

[2] A second count of human trafficking (Count 8) was withdrawn by the Crown.

[3] The parties agree that this evidence is only admissible to explain C.C.’s behaviour and is not admissible to show that Mr. Donacien has a propensity to engage in criminal behaviour.

[4] The evidence was that this offence occurred in the Quinte region of Ontario, although the Indictment alleges that it occurred “at the City of Toronto.” Counsel agree that this discrepancy is of no moment, as jurisdiction is not an essential element of an offence provided it occurs within the territorial jurisdiction of the court: R. c. G.L., 2023 ONCA 750, at para. 28; R. v. Treloar, 2024 ONSC 816, at para. 17.