Her Majesty the Queen v. Shondell Lucas-Johnson

COURT FILE NO.: CR-17-50000615-0000 DATE: 20180410

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHONDELL LUCAS-JOHNSON Accused

COUNSEL: Corie Langdon, for the Crown Royland Moriah, for the Accused

HEARD: April 4, 2017

B.A. ALLEN J.

PUBLICATION RESTRICTIONS NOTICE

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code. By order of this court, any information that could identify the complainants shall not be published in any document, broadcast or transmission.

REASONS FOR DECISION

(Application under s. 714.1 of the Criminal Code)

THE APPLICATION

[1] This is a human trafficking case. The defendant, Shondelle Lucas-Johnson, is charged with 14 counts under the Criminal Code related to the human trafficking of two females, CM and ML. In relation to CM, the charges include: trafficking a person under the age of 18 years (s. 270.01(1)), material benefit under 18 years (s. 279.02), procuring a person under the age of 18 years for the purpose of gaining and exercising control (s. 286.31); removing identity document from another person (s. 279.03(2); and forcible confinement (s. 279.2).

[2] The Crown brings the Application under s. 714.1 of the Criminal Code seeking a ruling to allow CM to give her evidence by video link.

BRIEF OVERVIEW

[3] CM resides in Nova Scotia. She was age 17 in December 2014 when she met Mr. Lucas-Johnson in Halifax through a mutual friend. They socialized for a brief period. He learned of problems she was having and invited her to stay for a couple of weeks at his condo apartment in Toronto. Mr. Lucas-Johnson paid CM’s plane fare and they flew to Toronto in January 2015. She stayed with Mr. Lucas-Johnson in a condo apartment in Toronto.

[4] A short time after she arrived in Toronto she found out her mother back in Nova Scotia was ill. She wanted to return home for this reason and Mr. Lucas-Johnson would not allow her to do this. He told her she would have to work at an exotic spa to earn money for him. She was to turn all of her earnings over to him. When she disagreed he got angry and assaulted her. Mr. Lucas-Johnson took her identification and gave her false identification for an older female.

[5] CM began working at the spa against her will on nine-hour shifts, seven days a week until March 2015 when Mr. Lucas-Johnson was arrested on an unrelated charge. CM left the apartment and a few weeks later provided a statement to the Peel Regional Police. In September 2016, Mr. Lucas-Johnson was arrested in Halifax and transported to Toronto.

THE LAW

[6] The court has the discretion to decide whether to grant an Order under s. 714.1 of the Criminal Code. That provision states:

714.1 A court may order that a witness in Canada give evidence by means of technology that permits the witness to testify elsewhere in Canada in the virtual presence of the parties and the court, if the court is of the opinion that it would be appropriate in all the circumstances, including

(a) the location and personal circumstances of the witness;

(b) the costs that would be incurred if the witness had to be physically present; and

(c) the nature of the witness’ anticipated evidence.

[7] Courts have identified factors that may be considered in arriving at a determination which I summarize below:

• whether a video appearance will affect the defence’s ability to cross-examine the witness;
• whether the nature of the witness’ evidence is non-controversial and not likely to attract significant objection
• the integrity of the examination site and whether the witness will be as free from interruption and interference as would be the case in a public court room;
• the distance the witness must travel to testify in person and the logistics of arranging a personal appearance;
• whether having to attend in person at a distance may interfere with important aspects of the witness’ life such as employment and the like;
• whether the witness lives in a country or area that would make travel difficult;
• the cost of the witness attending in person;
• the fact that the witness will be beyond the control of the court in the trial jurisdiction and that whatever powers the trial judge may have are extraterritorial;

[R. v. Young, 2000 SKQB 419, [2000] S.J. No. 590, at paras. 8 and 9, (Sask. C.A.)].

[8] Other courts have addressed other factors to consider which I summarize:

• ability or willingness of a witness to attend if they have volunteered to be a witness;
• whether the evidence is crucial to the case considering that personal attendance is the preferred method for receiving testimony;
• the extent to which video service enables a witness to use and refer to exhibits in the courtroom;
• necessity in the sense that there is a good reason that the witness appear by video link;
• reliability of the technology in the sense that the technology does not produce problems in the quality of the evidence received by video.

[R. v. Ragan, [2008], A.J. 1574, at para. 39, (Al.C.Q.B.) citing R. v. Heynen, [2002] Y.J. No. 6, at paras. 323-328, (Y.T.C.)]

[9] The main concern is that the ability to hear a witness’ examination-in-chief and the ability of the witness to be cross-examined not be seriously impacted if done by “a reliable, continuous video link”. If video link evidence is conducted properly a witness remains in the “virtual presence of the parties and the court during [her] testimony”: [R. v. Dessouza, [2012] O.J. No 272, at para. 25, (Ont. S.C.J.)].

[10] There is some concern about the trial judge’s ability to assess the witness’ demeanor over a video link. It has been recognized that demeanor evidence is not alone a reliable way to evaluate credibility. This does not mean that non-verbal indicators are of no evidentiary value. Current video link technology is sufficiently sophisticated to capture a variety of non-verbal cues and expressions perhaps in more detail when the camera is focused on the witness’ full face: [R. v. D.P., [2013] O.J. No. 2232, at paras. 7 – 10, (Ont. S.C.J.) and R. v. Ragan, at paras. 57 – 61)].

[11] Important to consider in this age of sophisticated electronic technology is an observation made by the Nova Scotia Court of Appeal:

The right to face one’s accuser is not in this day and age to be taken in the literal sense. In my opinion, it is simply the right of an accused to be present in court, to hear the case against him and to make full answer and defence.

[R. v. (M.E.) (1989), 1989 CanLII 7212 (NS CA), 49 C.C.C (3d) 475 (N.S.C.A.)]

APPLICATION OF THE LAW

Location of Witness, Cost and Nature of the Evidence

[12] The first factor at s. 714.1(a) requires considering the location of the witness and their circumstances.

[13] After CM left Toronto she returned to Halifax where she currently resides. Halifax is not a great distance away from Toronto and does not present with any logistical problems in regard to transportation to Toronto. The trial court’s control over CM is not a concern since a material witness warrant allows the trial jurisdiction some authority over a witness.

[14] Under s. 714.1(b), the cost involved for CM to testify in Toronto does not present a major impediment. No issues were raised under s. 714.1(c) about the nature of CM’s prospective evidence being of concern at the trial.

[15] It is CM’s circumstances that present for her the greatest obstacle to attending trial in Toronto.

Circumstances of the Witness

[16] Officer Jason Davis of the human trafficking enforcement team with the Toronto Police Service made contact with CM at Covenant House, a homeless youth centre, after she made her complaint to the Peel Police. Toronto Police took over the investigation since the allegations arose in Toronto. Before CM returned to Nova Scotia, Officer Davis spoke to her, the workers at Covenant House, and reviewed her statement to the Peel Police from which sources he learned about CM’s circumstances and the allegations.

[17] Officer Davis swore an affidavit addressing the basis of CM’s request to testify by video link. He also testified on the Application about the circumstances of CM’s life just prior to her moving to Toronto and on what he learned about her allegations against Mr. Lucas-Johnson.

[18] Officer Davis stated that toward the end of 2014 CM was having problems in Halifax with being bullied at school and with people harassing her because they accused her of stealing a cell phone which she denied doing. She dropped out of school. CM had recently been discharged from a lengthy stay in a hospital for depression and a suicide attempt and was having problems in her relationship with her mother. It was in this context that she met Mr. Lucas-Johnson on December 20, 2014 through a mutual friend.

[19] CM was 17 years of age when she met Mr. Lucas-Johnson. She found Mr. Lucas-Johnson trustworthy. She developed a good relationship with him. He learned of her problems. He told her about a condo apartment he had in Toronto and invited her to stay at the condo for two weeks for a break from her problems in Nova Scotia. Mr. Lucas-Johnson bought plane tickets to Toronto for CM, himself and his son. The residence was at apartment 1608 at 6 Eva Rd. in Toronto.

[20] CM stated when she first arrived in Toronto her friendship with Mr. Lucas-Johnson remained as it was in Halifax. He showed her around Toronto. It was during the second week when she asked to go home to her sick mother that their relationship changed. He told her she had to make money for him at Sunshine Spa, a spa that offered sexual services to clients.

[21] When CM disagreed Mr. Lucas-Johnson grabbed her and pushed her against a wall in the apartment and told her she is not leaving and she would be working at the spa. This frightened her. Mr. Lucas-Johnson showed her the website for the spa and from what she saw she knew that it was not a real spa as she knew a spa to be in Halifax. She could observe from the website that the spa was involved in services that were sexual in nature.

[22] Mr. Lucas-Johnson took her identification and gave her identification for an older female. He drove her to the spa and introduced her to the proprietor named Mary. When CM spoke to Mary she learned the type of services offered at the spa. She learned she had to have condoms and to wear lingerie. She learned she had to allow clients to touch her.

[23] The shift CM would work was from 7 p.m. until 4 a.m. or 5 a.m., seven days a week. She was expected to service about ten men per night. The sexual services she had to perform were sexual intercourse and fellatio and other types of sexual services. The first night CM made $1,000.00 which Mr. Lucas-Johnson took from her. If CM refused to go to the spa he would drag her from bed and assault her. On an occasion she brought home $500.00. Mr. Lucas Johnson said that was not enough and he assaulted her in the stairwell and held her by her jaw. He beat her on a daily basis. Mr. Lucas-Johnson would take all of the money and he would buy her the things she needed.

[24] On one occasion she did not return to the apartment and instead went to a hotel room to get away from Mr. Lucas-Johnson. Mr. Lucas-Johnson texted her and threatened to beat her. CM returned to 6 Eva Rd. She had no family, no friends or contacts in Toronto. Mr. Lucas-Johnson erased all of her contacts in her cell phone. He broke her cell phone for communicating with her boyfriend.

[25] On March 16, 2015, Mr. Lucas-Johnson was arrested at the apartment on an unrelated offence. CM left the apartment and went to stay for about a week with a woman she met at the spa. She called the Peel Police and informed them she had been trafficked by Mr. Lucas-Johnson.

The Preliminary Inquiry

[26] Officer Davis testified he had difficulty contacting CM about the preliminary inquiry that was originally scheduled for April 28, 2017. In November/December 2016, Officer Davis left messages for her to contact him. He received no response. In March/April 2017, Officer Davis contacted the Halifax Police and requested they serve CM with a subpoena.

[27] On the day before the preliminary inquiry, Officer Davis received a conference call from CM and a support worker at the facility where she was staying. CM indicated she did not want to take part in the court process. She said she had moved on with her life and did not want to return to Toronto because that would affect the progress she had made. CM was enrolled in school at the time and receiving support and assistance from a network of support workers. Her support workers were integral to her improving her life. CM advised Officer Davis that she had no support network, family or friends in Toronto. The only time she had ever been to Toronto was during her few months’ experience with Mr. Lucas-Johnson.

[28] Officer Davis testified before Justice French at the preliminary inquiry on April 28th and advised the court about CM’s circumstances and her reluctance to attend. Justice French acknowledged the problem for CM and suggested she attend by video link. CM agreed to attend with the support of a support worker. The preliminary inquiry was adjourned to June 2017.

[29] CM testified at the preliminary inquiry by video link from a Halifax courthouse. The technology was tested before the commencement of the proceeding. It took place in a small room in the courthouse where the video link was set up under a staircase. CM could see the courtroom in Toronto and the participants in the Toronto courthouse could see CM and her support worker. From Toronto it could be seen who was entering and exiting the video link room. Personnel at the room in the Halifax courthouse monitored people’s comings and goings.

[30] The preliminary inquiry lasted three days. The video link was found to be reliable. The video reception was instantaneous. CM’s face and demeanor could be clearly seen on the screen. There were no interruptions or technical problems. CM could watch the video recording of her police statement and the Toronto court could view the video of her police statement and the video link together on a split screen.

[31] CM had difficulty testifying at some points and she broke down crying. On the first day she could not complete her testimony and another witness had to be called to give her a break. CM told Officer Davis that the preliminary inquiry caused her an emotional setback.

The Prospect of Testifying at Trial in Toronto

[32] CM will be attending school at the time the trial is scheduled. Officer Davis had spoken to her support workers and they confirmed she was struggling in her life and feared having to relive her horrible experiences. The support worker told Officer Davis that CM indicated she was however open to testifying by video link from Halifax.

[33] Two days before the start of trial Officer Davis spoke to CM about some possibilities – that she might be required to attend court in person in Toronto or by CCTV or she might be allowed to testify by video link from Halifax. CM grew very anxious. She indicated that she could not physically or emotionally deal with going to Toronto where Mr. Lucas-Johnson’s family and friends live.

[34] Even if a support worker could travel with her to Toronto, which was a possibility, CM felt this would not assuage her fear. She said she was afraid of Mr. Lucas-Johnson’s associates coming into the courtroom. CM was also concerned that going to Toronto for a week would upset the system in place with her support workers and schooling. If she remained in Halifax, she would miss fewer days and could keep up with her homework.

[35] CM questioned the suitability of the small room in the Halifax courthouse from which the video link for the preliminary inquiry was transmitted. Officer Davis inquired about another room but none was available. CM was ultimately prepared to attend court by video link from that room.

[36] The evidence is that the cost of CM and a support worker coming to Toronto for the trial was not a primary problem. The plane tickets, hotel accommodations, food and other expenses would not be prohibitive. As I understand it, those expenses could be covered by the Ministry of the Attorney General’s victim support program.

Preparations for Video Link at Trial

[37] Officer Davis has booked the room in the Halifax courthouse for a week. He spoke to an employee at the courthouse about doing a trial run of the system in advance of the video link. Exhibits could be transmitted efficiently by fax or email which the employee would receive and take into the courtroom for CM to identify. An employee would monitor the room for the comings and goings of people.

CONCLUSION

[38] I allow the Application for the following reasons.

[39] The conditions of CM’s life and her experiences in Toronto persuade me that attending court in Toronto will not provide the most optimal setting for the court to receive the evidence it requires to make a determination. In arriving at my decision, I balanced CM’s life circumstances with the success of the video link at the preliminary hearing and the opportunity to test the system before she testifies at trial.

[40] The defence asserts that this is a case of CM simply not wanting to attend court in Toronto, of just preferring to testify by video link. On the face of things, I cannot disagree with the defence that CM does not want to testify in Toronto. But it clearly is not as simple as that. I find CM has very good reasons to prefer to testify in the city where she resides.

[41] According to the evidence I have on this Application CM was a very vulnerable 17-year-old girl before and at the time she met Mr. Lucas-Johnson. She had emotional problems, family problems and social problems with her peers. Mr. Lucas-Johnson was friendly and nice to her. He invited her to Toronto for a two-week break from her problems in Halifax. He even paid her plane fare. He provided her a nice place to stay. Mr. Lucas-Johnson had six of his associates living with him at the apartment, one of whom was the mother of his child. CM had never been to Toronto and he showed her around. She had no family or contacts here.

[42] When Mr. Lucas-Johnson introduced her to the idea of Sunshine Spa and she looked at the website she found she had never heard of a spa where women offered sexual services to clients. After the first week when she told Mr. Lucas-Johnson she wanted to go home to her sick mother he got angry and assaulted her.

[43] Mr. Lucas-Johnson told her she had to work at the spa giving sexual services to clients nine hours a day, seven days a week and had to give him all of the money she made. If she defied him he assaulted her and threatened her. She was terrified. She had no support and she was even more vulnerable than when she arrived in Toronto. She worked at the spa for some two months under Mr. Lucas-Johnson’s complete control until he got arrested and she was able to escape.

[44] This is CM’s only experience with Toronto. She got away and started to rebuild her life in Nova Scotia. She tried to put Toronto behind her. It not unreasonable to believe that thoughts of returning to Toronto, thoughts of seeing Mr. Lucas-Johnson and/or his associates in court or at the courthouse would create great anxiety. Just having to recount her story from Halifax by video link at the preliminary inquiry overwhelmed her. She had to stop her testimony interrupting the proceeding. While she could have a support person with her in Toronto, it is understandable that this would not make up for the disruption of the network of support, her schooling - the arrangements in Halifax that gave her emotional stability.

[45] As a trier of fact I have to be concerned with assuring I receive the best evidence under the best circumstances. The necessity for video link in the circumstances is reflected in the fact that I anticipate from the evidence I have about CM that I will not receive optimal evidence even if she testifies by CCTV in Toronto because of her bad memories about Toronto and her fear of seeing Mr. Lucas-Johnson’s associates. I do not find her fears and reluctance unreasonable. Her emotional reactions are likely to interfere with the presentation of her evidence and the fluidity and efficiency of the trial proceeding. I also note here that a prolonged proceeding would not benefit the accused.

[46] I must also concern myself with the right of the accused to make full answer and defence. There are certainly advantages to having CM in Toronto to testify in person. However, considering my own experiences with video link trials and accepting the observations of other courts, I find that with the current developments in video technology the right to face one’s accuser in this context can permit an expanded meaning for the concept. Although video link attendance by a witness should not be the rule, facing one’s accuser does not necessitate confronting the accuser in the flesh as long as the accused can know the case against him; as long as he is present in court and can see and hear the evidence of his accuser. That can be accomplished by video link.

[47] In conclusion, I am encouraged by the success of the video link at the preliminary inquiry and the fact that the system will be tested before usage at trial. I am also pleased there will be monitoring of the courtroom in Halifax and a process in place to assist with exhibits.

DISPOSITION

[48] I grant the Application. CM may testify by video link from Halifax, Nova Scotia.

B.A. ALLEN J.

Released: April 10, 2018