COURT FILE NO.: CR-17-50000615-0000
DATE: 20180622
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SHONDELL LUCAS-JOHNSON
Accused
Corie Langdon, for the Attorney General
Royland Moriah, for the Accused
HEARD: April 4 – 6, 10 – 12, 16 - 20 and April 26, 2018
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 By order of this court, any information that could identify the complainants shall not be published in any document, broadcast or transmission.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 JUDGMENT
THE CHARGES
[1] This case involves human trafficking and other sex trade offences. The defendant, Shondell Lucas-Johnson, is charged with 14 counts under the Criminal Code related to the human trafficking of two females, CM and ML. CM was age 17 at the time of the offences and ML was age 18.
[2] In relation to CM, the charges include: one count of trafficking a person under age 18 (s. 279.011(1)(b)); one count of concealing identity document from another person under 18 (s. 279.03(2); two counts of procuring to offer sexual services of another person under 18 years (s. 286.3(2); one count of forcible confinement (s. 279(2)).
[3] In relation to ML, Mr. Lucas-Johnson is charged with: one count of trafficking a person age 18 (s. 279.01(1); and two counts of procuring to offer sexual services of another person age 18 (s. 286.3(1)).
[4] Not specifically naming either complainant, Mr. Lucas-Johnson is also charged with: one count of material benefit from trafficking another person under age 18 (s. 279.02(2)); two counts of material benefit from sexual services of another person under age 18 (s. 286.2(2)); one count of material benefit from trafficking another person age 18 (s. 279.02(1)); and one count of material benefit from sexual services of another person age 18 (s. 286.2(1)). These charges relate to both CM and ML.
[5] Mr. Lucas-Johnson faced a charge of breach of recognizance for failing to reside with his surety (s. 145(3)(a)) which the Crown withdrew.
THE PROCEEDING
Similar Fact Application
[6] The Crown brings a cross-count similar fact application seeking an Order that the evidence pertaining to one of the complainants can be used to support the charges against Mr. Lucas-Johnson related to the other complainant. I decided the evidence for the application would be heard as part of the trial evidence and a decision on similar fact be made after all evidence is heard.
Adoption of Videotaped Police Statement
[7] CM was age 17 at the time the offences were committed. She provided a statement to Peel Police on April 11, 2015. Section 715.1 of the Criminal Code provides that in any proceeding relating to certain sexual offences, in which the complainant is under the age of 18 years at the time the offence is alleged to have been committed, a videotape made within a reasonable time after the alleged offence, in which the complainant describes the acts complained of, is admissible in evidence if the complainant adopts the contents of the statement. The videotaped statement was played in court and CM adopted its contents.
Testimony of CM by Video Link and Testimony of ML by CCTV
[8] CM applied under s. 714.1 of the Criminal Code to testify at trial by way of video link from a courthouse in Halifax. The preliminary inquiry had proceeded in that manner. I granted the application: [R. v. Lucas-Johnson, 2018 ONSC 2370 (Ont. S.C.J.)].
[9] ML applied under s. 714.1 to testify by CCTV from a room outside the courtroom in Toronto. The defence conceded and her testimony proceeded in that manner.
THE EVIDENCE
CM’s Evidence In-Chief
Before CM Worked at Sunshine Spa
[10] CM resides in Nova Scotia. She had a grade 9 education and was age 17 in December 2014 when she met Mr. Lucas-Johnson through a mutual friend in Halifax. CM testified that she told Mr. Lucas-Johnson her correct age when she first met him in Halifax. She said she told him her age because he had remarked that she had such a young face. According to CM, they socialized for a brief period in Halifax. CM told him of personal problems she was having. She testified that he acted as a good friend. She felt very comfortable with him. CM stated that Mr. Lucas-Johnson told her little about himself except that he had two children and a disabled brother.
[11] It is CM’s evidence that he invited her to stay for a couple of weeks at his condo in Toronto so she could clear her head and get away from her troubles in Nova Scotia. According to CM going to Toronto was Mr. Lucas-Johnson’s idea.
[12] Mr. Lucas-Johnson did not tell CM much about the condo. He told her his son’s mother, Tanesha, and his son resided there. CM testified she did not know what Tanesha was involved in in Toronto.
[13] Mr. Lucas-Johnson told CM the condo had two bedrooms and she would have one of the bedrooms to sleep in. He, Tanesha, and his son would sleep on the couch in the living room. She learned Mr. Lucas-Johnson’s friend “Shaqy” and his girlfriend “Frenchy” slept in the other bedroom. CM stated that Mr. Lucas-Johnson did not tell her much about his activities in Toronto. She stated that she did not know he was a pimp before she left Nova Scotia or when she arrived in Toronto.
[14] CM had not previously been to Toronto. Nor did she have friends, family or contacts in Toronto. Mr. Lucas-Johnson paid CM’s plane fare to Toronto. They flew together with his young son in January 2015.
[15] The condo was at apartment 1608, 6 Eva Rd., Toronto. CM testified that for the first week after she and Mr. Lucas-Johnson arrived in Toronto, he continued to act like a good friend. He took her out to dinner, malls and movies which he paid for. CM testified she and Mr. Lucas-Johnson never developed a romantic relationship.
[16] CM testified she never had keys or a fob to the building or to the apartment while she resided there. Mr. Lucas-Johnson always used his key and fob to let her in. During the first week CM could freely contact her mother and boyfriend in Nova Scotia by her cell phone.
Evidence Related to Working at Sunshine Spa
[17] At the start of the second week in Toronto, CM found out her mother back in Nova Scotia was ill. She told Mr. Lucas-Johnson she wanted to return home for that reason. CM testified that at this point in time Mr. Lucas-Johnson’s attitude and conduct toward her changed drastically. She testified Mr. Lucas-Johnson told her she could not return to Nova Scotia. She had to work to pay him back for the money he spent on her. She testified she offered to pay him back in small amounts once she got back to Nova Scotia because she had no money. CM testified Mr. Lucas-Johnson ignored her offer, ignored the whole conversation.
[18] From the second week at the condo until March 2015 when she finally left, CM’s circumstances changed radically.
[19] The matter of her working in Toronto came up again. CM testified that at the beginning of the second week in Toronto, Mr. Lucas-Johnson showed her a website for an establishment called Sunshine Spa (“the Spa”) as a way to let her know where she would be working. CM stated she became suspicious about the type of work that was going on at the Spa because the website contained pictures of women in sexy poses wearing lingerie. She testified he never told her exactly what the women do at the Spa and she did not ask any questions.
[20] CM stated this was the only time he mentioned the Spa before she started working there. CM stated that she knew from the website that what went on at the Spa was something she did not want to do. After that conversation, according to CM, Mr. Lucas-Johnson told her she had to work at the Spa whether she liked it or not. Two or three days after the conversation about the Spa, Mr. Lucas-Johnson drove her to the Spa. The arrangement was that Mr. Lucas-Johnson would drive CM to the Spa and pick her up after her shift was over. CM testified she felt she did not have a choice.
[21] CM stated that on the way to the Spa on the first day, Mr. Lucas-Johnson told her about Mary, the proprietor of the Spa. CM stated that she felt upset on the way because he was forcing her to go. She testified that even on the way to the Spa she did not know what services the Spa offered. She said after she met with Mary she did not want to stay there. CM however said nothing to Mary about that. She testified she had nowhere else to go so she stayed there. Mary explained everything to CM. She told her about the sexual services offered and about the lingerie to wear.
[22] The shift was nine hours, 7 p.m. to 4 a.m. Mr. Lucas-Johnson picked CM up at 4:00 a.m. CM had no lingerie of her own. She stated she got lingerie from another woman at the Spa and also received lingerie and shoes that Mr. Lucas-Johnson took from Tanesha. CM stated Tanesha came to work at the Spa during the second week she was there.
[23] According to CM, Mr. Lucas-Johnson forcefully took her government-issued identification during the second week. Mr. Lucas-Johnson gave her a fake identification for another female who was older than 17 years of age. She testified that when she started working at the Spa, she showed Mary the fake identification and Mr. Lucas-Johnson took it from her after her first shift. She said she did not have access to her identification.
[24] According to CM, from the second week living at the condo, Mr. Lucas-Johnson would not allow her to leave the apartment without him. He would go with her to pick up food and other things she needed or go out himself to pick up those things. CM stated she was never able to leave the condo alone. As noted earlier, CM stated she did not have a key or a fob to enter the building or apartment.
[25] CM testified that from the second week, Mr. Lucas-Johnson did not like her communicating with her mother or boyfriend on her cell phone. He would at times take her phone while she was at work so she would not be distracted from making money. When she had her phone at work she did not communicate with Mr. Lucas-Johnson.
[26] Mr. Lucas-Johnson would go through her phone to see her contacts and whom she was communicating with. He would get angry and take her phone. At one point he took her phone and smashed it. He gave her Tanesha’s old cell phone from which she could only access Facebook to make phone calls. She could not receive calls on that phone unless she turned on the WiFi. She did not get another phone until a week before she went to the police after she left the condo.
[27] CM testified that the first argument with Mr. Lucas-Johnson happened when she woke up after her first shift. The importance of this evidence will become evident later in the decision. CM told him she would not be returning to the Spa to do something that was illegal that could get her into trouble. Her evidence is that Mr. Lucas-Johnson warned her that she does not know who he is. He told her he had been to jail before for beating women and he does not mind going to jail for beating her. CM testified he repeated those words often. This is when CM says Mr. Lucas-Johnson first got violent with her. CM testified this is when he first grabbed her by her jaw.
[28] CM said the argument continued until the next morning. She was in the bedroom and he placed his right hand and fingers around her jaw and threw her up against the wall. This evidence will also be discussed further below. CM said, after this incident, she knew she did not have a choice whether to work at the Spa servicing men. She said she had been in abusive relationships before and she knew what would happen if she continued to challenge Mr. Lucas-Johnson.
[29] CM said she had seen him beat Tanesha about once a week and drag her on the floor. She saw him cut her hair during a fight. The police frequently came to the apartment because of noise complaints related to the fighting. CM did not want that to happen to her. She knew she could not fight him physically.
[30] Mr. Lucas-Johnson told CM she had to work every night and that she would have to give him all of her money. About two weeks after she started working at the Spa, he set the limits of the money he expected her to make, over $700.00 a shift, or he would beat her. He would grip her on the face and throw her up against the wall. He took her money from her purse after every shift. CM testified she was not able to keep any of the money ever.
[31] CM talked about an incident that happened after a slow night at the Spa when she only made $200.00. Mr. Lucas-Johnson got very angry. He brought her to the stairwell outside the apartment unit and pushed her down the stairs. He repeated the words that he did not mind beating women who defy him.
[32] CM said the consequence of defiance and not making enough money was that he would yell at her, beat her and lock her in the bedroom all day until she had to go to work. She testified he would not feed her. She said he started locking her in the bedroom when she started not making enough money, around the time she made $200.00, about half way through the time she lived at the condo. CM said the confinement and food deprivation happened about five times, and then would briefly stop until she left the apartment in March 2015.
[33] CM testified Mr. Lucas-Johnson assaulted her nearly every day. She did not sustain any visible physical injuries. She did not seek medical treatment.
Evidence Related to when CM left the Condo
[34] The police came to the apartment on March 17, 2015 as a result of a noise complaint. CM and Tanesha were in a fight in the apartment that went out into the hallway. CM’s explanation for the fight was that Tanesha got jealous because CM and Mr. Lucas-Johnson had gone out to get food and Mr. Lucas-Johnson did not bring back food for Tanesha. Mr. Lucas-Johnson also got into the fight with Tanesha.
[35] The police arrived and Mr. Lucas-Johnson was arrested. He was taken away. CM was not allowed to stay at the apartment that night. Tanesha would not permit it. Tanesha stayed at the apartment with her son.
[36] CM testified she went to stay at the guest suite in the building where Shaqy and Frenchy had moved. She remained at the suite for three nights. She testified she did not work at the Spa those days. After the three nights at the guest suite Frenchy drove CM to the Spa because Frenchy and her boyfriend had to leave the guest suite. CM said she agreed to go to the Spa because she had nowhere else to go.
[37] CM next went to stay with a woman called “Shay Shay” who she met at the Spa. She stayed with Shay Shay during the two weeks before she went to the police and returned to Nova Scotia. She testified that she did not have money for rent or food and Shay Shay allowed her to stay at her apartment expense-free. After two weeks she told CM she could not stay without paying. CM eventually returned to Nova Scotia with the assistance of the police.
CM’s Evidence on Cross-Examination
[38] On cross-examination, CM gave evidence that varies in critical areas from the evidence she gave in-chief and in prior statements, which I find poses problems for her credibility.
[39] The first time CM disclosed her experience with Mr. Lucas-Johnson was when she spoke to the Peel Police on April 11, 2015. This was two weeks after she stopped residing at Mr. Lucas-Johnson’s apartment. CM also gave evidence at the preliminary inquiry, some two years later on June 28, 2017. Her evidence at trial commenced on April 11, 2018, exactly three years after her statement to the police.
[40] Defence counsel cross-examined CM about how Mr. Lucas-Johnson introduced the idea of her working at the Spa.
[41] Defence counsel questioned CM about Mr. Lucas-Johnson showing her the pictures of the website and about her response that she did not want to work at a spa and wear sexually revealing lingerie. In view of that evidence, defence counsel questioned the fact that while Mr. Lucas-Johnson was driving her to the Spa within days of introducing the idea, and having provided her no details about the Spa, CM did not resist or say anything in spite of her previous disagreement with working there. Defence counsel questioned the evidence that Mr. Lucas-Johnson just told her he is driving her to the Spa, like it or not. He was going to drop her off and pick her up after the shift.
[42] CM conceded that she said nothing to Mr. Lucas-Johnson. She agreed she did not ask any questions, query the type of work she would be doing, or ask any details about the Spa. Defence counsel questioned her, and she agreed, that he just dropped her off. CM agreed she said nothing because she “didn’t know what to say.” CM testified she just got into the car with him and she did not know where they were going. There were no arrangements made for her to work. Mr. Lucas-Johnson told CM to just talk to Mary and she would tell her about the Spa’s business and the type of work she would be doing.
[43] CM acknowledged the fact that Mr. Lucas-Johnson had not threatened or assaulted her. He had not been violent with her. She agreed that up to this point all he had said to her is that he wanted her work to pay him back.
[44] CM’s trial evidence in-chief was that Mr. Lucas-Johnson first became violent the morning after the first night she worked at the Spa. At trial, CM testified about when, during the second conversation about the Spa, before she started at the Spa, she raised her mother’s illness and said she wanted to go home. She stated that Mr. Lucas-Johnson just ignored the conversation and walked away.
[45] Defence counsel questioned CM about an inconsistency between that trial evidence and evidence in her police statement about when Mr. Lucas-Johnson began to be violent with her. Defence counsel pointed out that in her police statement she said the first violence happened before she started working at the Spa. CM told the police this happened when she mentioned going home and not wanting to work at the Spa. According to her earlier account, Mr. Lucas-Johnson followed her into the bedroom and “slammed” her against the wall and told her she was going to make money every day.
[46] CM’s denied she said there was violence before she worked at the Spa. Her explanation for the inconsistency was that Mr. Lucas-Johnson actually did not “slam” her against the wall. He just “pushed” her against the wall and, to her, “pushing” does not mean violence. She said a lot of things were going through her mind and “her grammar was not proper”.
[47] CM testified Mr. Lucas-Johnson never told her what to say to Mary. She said she did not know what to say. But what she did say was, “I’m C. J. M_ _ _ _ _ _”, which is her first and middle initials and her full real surname. CM indicated that Mary asked her for identification which CM said she turned over to her and which Mary returned to her. That evidence suggests that what CM would have given Mary was her true Nova Scotia government-issued identification.
[48] Defence counsel pointed out that before the first shift CM must have had her true identification. The point defence counsel was making was that CM must have shown Mary her true identification because she had introduced herself by her true initials and surname.
[49] In answer to that query, CM corrected defence counsel saying that she did not give Mary her true identification. She gave Mary her false identification showing a false name and date of birth. This gave rise to a further question from defence counsel as to how it would make sense that she would give Mary false identification after introducing herself by her true name.
[50] CM’s response was, “Maybe yes, I did that as a way to get out. Who knows?” When asked to explain what she meant, she said, “Trying to make it known it was not me on the picture, but obviously she (Mary) didn’t care.” CM was asked why she did not simply tell Mary she did not want to be at the Spa. CM responded, “Yes, maybe I wasn’t thinking right, obviously, because I didn’t know what to do or where to go”. Defence counsel further questioned whether Mary queried why CM introduced herself by a different name than was on the fake identification. CM responded that Mary never asked about it.
[51] On further questioning, CM acknowledged there was a great change in Mr. Lucas-Johnson’s attitude in the second week when he told her she had to work to pay him back. She said it surprised her. She conceded she never asked why he was doing this to her. Nor did she tell Mary that she did not want to be at the Spa despite Mary informing her about the sexual services she would have to offer. CM stated she said nothing because she was shocked because she had never heard of an exotic spa. There were no such places in Nova Scotia.
[52] Defence counsel pointed out that despite her shock at the services she was to provide, CM provided sexual services to men for the entire shift on her first night. She made $1,000.00. CM’s evidence was that she was angry and scared at the end of the first night at the Spa.
[53] Defence counsel queried, in relation to her first night at the Spa, CM’s evidence that: she did not want to work at the Spa or return to the condo; that she had $1,000.00 in her hand following the first shift; and that Mr. Lucas-Johnson had not as yet threatened her or been violent with her. He questioned why she did not escape or seek help.
[54] CM replied that she did not know where to go. She testified she could not get a taxi to the airport to buy a ticket to fly home because she only had the fake identification with her.
[55] Defence counsel questioned CM about access to her cell phone during the first night at the Spa, and other nights, given her evidence that she did not want to be at the Spa. CM acknowledged that she had her cell phone with her and that Mr. Lucas-Johnson had not at that point restricted communications with her cell phone. But she did not use it to seek help. She did not call the police and accepted the defence suggestion that the police would have provided a safe place for her.
[56] CM gave evidence that on one occasion after her shift she went to a hotel rather than back to the condo. She left the Spa with the money she earned and rented a room. She said she had to get away from the condo because Mr. Lucas-Johnson was by this point threatening and assaulting her daily. CM’s evidence was that Mr. Lucas-Johnson called her at the hotel and threatened her.
[57] Defence counsel suggested that CM must have realized she had an opportunity to escape after any shift at the Spa when Mr. Lucas-Johnson did not pick her up. Defence counsel further suggested CM went to stay at a hotel because there were too many people staying at the condo. CM denied both suggestions saying she rented the hotel room because of fear and did not try to escape because she was afraid of Mr. Lucas-Johnson’s threats and violence.
[58] Defence counsel also referenced CM’s evidence that her phone would not allow people to call her. She would have to turn on the WiFi. Defence counsel suggested this means she actually called Mr. Lucas-Johnson from the hotel and not vice versa. She also denied this. CM however admitted that Mr. Lucas-Johnson came to pick her up at the hotel which she acknowledged means she had to have told him where she was. Defence counsel asked why she would tell him where she was and CM said she was afraid of Mr. Lucas-Johnson because he had threatened her.
[59] CM was cross-examined on her evidence in-chief that Mr. Lucas-Johnson locked her in the bedroom and withheld food. Her evidence was that he did that about five times. Defence counsel asked her why she never mentioned to the police that food was withheld. CM’s response was that she thought she had told that to the police. When asked about how Mr. Lucas-Johnson was able to lock her in the bedroom from outside the room. CM could not explain this. She did not know whether there was a lock on the outside of the door.
[60] Defence counsel also questioned her on her evidence that Mr. Lucas-Johnson restrained her from leaving the condo without him. He would take her to and from work or if she used a driver, he would wait for her at the condo to let her in. CM said he or Tanesha always had to buzz her into the building and let her into the apartment. CM was emphatic that she never had a key or a fob. Defence counsel put to her, and she agreed, that therefore when she finally left the condo, she did not have to drop off a key or fob.
[61] Defence counsel then pointed out a portion of CM’s police statement where CM stated, “I messaged him [Mr. Lucas-Johnson] on Facebook that I was leaving like I’m not coming back, I left the keys you know just something like just saying like…” CM did not provide an explanation that I found intelligible or reasonable for telling the police she left the keys when she left the apartment when her trial evidence is that she never had keys.
[62] CM testified in-chief that she did not have an opportunity to use her money to buy anything. Defence counsel asked CM if she had bought an air mattress while living at the condo. She replied that she had not. Counsel referred to a remark she made in her police statement about her picking up her belongings from the apartment. In the statement she bemoaned the fact that some of her things were missing which she told the police included the air mattress she purchased.
[63] Defence counsel challenged her that the evidence about the key and the air mattress contradict her narrative about Mr. Lucas-Johnson’s total control of her movements and money. CM denied that suggestion. She repeated she never had a key and she did not go out and buy things. First she denied ever having a key and on later questioning she said she might have had a key once or twice.
[64] Defence counsel also put to CM that after Mr. Lucas-Johnson was arrested, she did not ensure Mr. Lucas-Johnson would not be able to locate or contact her, which counsel suggested she ought to have done given her fear and anger with him. Defence counsel referred to the fact that Mr. Lucas-Johnson was in jail after he was arrested which should have given CM the opportunity to get away from him, his family and associates.
[65] Once again, pointing to CM’s police statement, defence counsel referenced the fact that CM stated that she went to stay with Shaqy and Frenchy in the condo suite because Mr. Lucas-Johnson told her to stay there. He was in jail and she still obeyed his directions. Further, Shaqy and Mr. Lucas-Johnson are close associates. They are cousins. Defence counsel suggested this is contrary to her evidence that she wanted to avoid Mr. Lucas-Johnson. CM denied this.
[66] CM was also questioned about why, when the police were called to the apartment on March 17th, she did not tell the police what was going on when the police officer was speaking to her in the bedroom. CM explained that she did not know where else to go. She did not know Toronto or have any friends or contacts. She said she wanted to get home without involving the police.
[67] On CM’s evidence that Frenchy dropped CM off at the Spa to work after they had to leave the guest suite, defence counsel suggested that this indicates CM was not at all averse to working at the Spa. She worked there again without Mr. Lucas-Johnson’s control. CM denied this saying she did not know Frenchy was taking her there. She did not ask Frenchy to drive her there. CM stated that in any event she had nowhere else to go.
[68] Defence counsel pointed to the evidence that CM did not go to the police for help for some three weeks after she left the condo. She stayed at Shay Shay’s for over two weeks. Defence counsel suggested she was not in a hurry to leave Toronto even though, according to her evidence, she had had a traumatic experience.
[69] CM responded that she was attempting during that period to get family and friends in Nova Scotia to send her money for plane fare.
ML’s Evidence in-Chief
ML’s Police Statement
[70] ML and CM confirmed they did not know each other. They worked at the Spa and lived at the condo during different time periods.
[71] However, ML had learned through a CBC news release in September 2016 about charges against Mr. Lucas-Johnson in relation to a 17-year old. The media release pertained to CM. ML had given birth to a baby girl and learning of another victim of Mr. Lucas-Johnson made her feel protective of her daughter. She thought of a co-worker at the Spa, Amanda, who was 17 years old when Amanda began working in the sex trade for Mr. Lucas-Johnson. So she decided to report her experience.
Before ML Began Working at the Spa
[72] ML, age 18 at the material time, resided with her family in a town just outside Toronto. She moved to Halifax in the fall of 2015. She had obtained a job as a nanny which she did for about a year. She met Mr. Lucas-Johnson on the social media dating platform called Tinder. They messaged each other through the platform and by phone for about a week.
[73] After they met in the beginning of April 2015, they initially maintained a casual relationship. Mr. Lucas-Johnson would rent a car and pick ML up at the home where she worked as a nanny. He would drive her around to wherever he might be going that day. ML testified she felt she and Mr. Lucas-Johnson connected with each other, that they had compatible personalities. ML testified that Mr. Lucas-Johnson treated her very well. She felt they enjoyed their time together.
[74] Although Mr. Lucas-Johnson had told her little about his life, he did take her to his home in Dartmouth where he lived with his family. She testified she did come to know through travelling around with him that he made income through drug dealing. She stated that she did not mind this because he was treating her very well. He took her out for dinner, to the movies and to a party with his acquaintances. She grew to trust him. They hung out in Halifax for the last month before her nanny job ended toward the end of April 2015.
[75] ML testified that during their time together in Halifax she told him she would be going home. She said he briefly told her about a condo he had in Toronto. She testified that she understood from the conversation that he would go to Toronto and they could hang out and spend more time together at the condo. She did not find the fact he had a condo in Toronto suspicious because she trusted him.
[76] ML paid her own plane fare and flew back to Toronto in May 2015. Mr. Lucas-Johnson drove to Toronto about a week later. ML testified she could not take all of her belongings she brought to Halifax with her on the plane. Mr. Lucas-Johnson offered to take them with him to Toronto. About one week after she arrived home, Mr. Lucas-Johnson drove to ML’s family home and dropped off her belongings. It was a brief drop off.
[77] As they had discussed in Halifax, the plan was for ML to come to the condo to stay for a few days. There was no plan for ML to live with Mr. Lucas-Johnson at the condo. Mr. Lucas-Johnson did not invite her to reside at the condo when they got to Toronto.
[78] A few days after her belongings were dropped off Mr. Lucas-Johnson invited ML to the condo. She packed a bag with items for a weekend stay. The condo was at 6 Eva Rd, on the 16th floor. The arrangement was that she and Mr. Lucas-Johnson would sleep in the master bedroom. There were two of Mr. Lucas-Johnson’s friends, Jeremy and D’Angelo, staying at the apartment. They alternated staying in the second bedroom and on the couch.
[79] ML testified she and Mr. Lucas-Johnson were now in a romantic relationship. During the weekend ML and Mr. Lucas-Johnson hung out the same as they did in Nova Scotia. There was no talk about the sex trade. After the weekend, ML went home for a night and returned to the condo with more clothes. ML testified she had a key to the building and the apartment so she could come and go as she pleased. When she returned Mr. Lucas-Johnson brought up the sex trade. ML described the first discussion as laid back, casual.
[80] In the first conversation about the sex trade, Mr. Lucas-Johnson talked about an exotic spa. He gave a brief description of an exotic spa as a place with multiple rooms where men go to get sexual services from women employed there. ML testified she did not find the idea of the sex trade shocking. ML stated that she had previously been in the sex trade business in Nova Scotia. She worked for a pimp paying him with money she earned doing escort work and exotic dancing.
[81] ML said she was just shocked because she had never heard of an exotic spa where offering sexual services is legal. There were no such spas in Nova Scotia. The business sounded legitimate and safer than what she knew conventional sex trade to be. From the way Mr. Lucas-Johnson described it, ML got the impression that the spa was more pleasant in that the clients were from a better class of people. ML testified in the first conversation that Mr. Lucas-Johnson did not directly ask her to work at the spa. She said however that she got the impression this is what he was aiming at. She said she put two and two together.
[82] ML understood that Mr. Lucas-Johnson brought up the idea of a spa as an opportunity for her to explore as a means to make income. She was not employed. She was staying at the condo and was not paying rent and other expenses. ML testified she got the impression from Mr. Lucas-Johnson that she could earn lots of money as a young good looking woman. Mr. Lucas-Johnson and ML spoke of this in terms of how they could maintain their lifestyle in the luxury condo and pay their bills.
[83] Mr. Lucas-Johnson told her he knew the manager, named Mary, of an exotic spa called Sunshine Spa. He described how the Spa operated. The girls come out and greet the clients and the clients pick which girl they want to be with. The girl services the client and the client pays. Mary collects a $60.00 shift fee from the girls.
[84] ML testified she did not receive specific details about the exact types of services offered or the charges for the services until she went to the Spa and spoke to Mary. She said she did not ask Mr. Lucas-Johnson but she was fully aware the services were sexual.
[85] About a week after the first conversation she and Mr. Lucas-Johnson spoke again about the Spa. ML described the purpose of this discussion as Mr. Lucas-Johnson “making sure they were on the same page about her working there.” ML responded yes to the prospect because as she described it the work sounded “easy, safe” and she was “intrigued.” ML testified she was now emotionally attached to Mr. Lucas-Johnson so not only did she want to contribute to the lifestyle she also wanted to “please her partner.”
[86] The next conversation involved practical matters like what she was going to wear. Mr. Lucas-Johnson brought up the idea of going to a mall to shop for lingerie and shoes to wear at the Spa. He took her to the mall and he paid over a hundred dollars for lingerie at La Senza and bought shoes. Because he was being so nice and generous, this raised a question in her mind as to what he wanted from her. From the mall Mr. Lucas-Johnson drove her directly to the Spa.
After ML Started Working at the Spa
The First Month
[87] ML went into the Spa and met Mary. She took her identification which was an Ontario Health Card. The name she was going to use at the Spa was “Chloe”. Mary indicated she could employ ML at the Spa. ML did not know she would be working that night. She testified she thought it was “great”. She went out to the car and advised Mr. Lucas-Johnson she was going to start and she got her work lingerie and returned to the Spa. The arrangement was that ML would contact Mr. Lucas-Johnson by text when she went into a room with a client and tell him how much she earned after each session. She did this throughout the time she worked at the Spa.
[88] One of the girls who worked there filled her in on what ML said were the “not so glamorous” details of the business. She explained the details of the services offered “from a massage with a happy ending to full service.” She told ML about the costs of various services. ML’s shift was to be 7 p.m. to 4 a.m. Mr. Lucas-Johnson or one of his friends would pick her up after each shift if she did not use a driver provided by the Spa.
[89] On the first night ML serviced six or seven clients and made over $1,000.00. ML testified Mr. Lucas-Johnson never asked her to work more to get more money except on one occasion when she drank at work and came home with little money. He told her she should work a double shift and she did.
[90] From the beginning of working at the Spa ML kept the money she earned. There was no question raised about that. She started working three to four nights a week, Thursday to Sunday, when the Spa was the busiest. She made on average $400.00 per night. She continued to keep the money. She paid toward the rent for the condo, for food and for her own personal items with her money.
[91] During the first three weeks when she was not working a full week she found her situation to be satisfactory. She said she was on a schedule and at times she did go to work when she did not want to. She did not ask questions about this. She felt she needed to contribute to the living expenses.
[92] ML testified she saw Mr. Lucas Johnson as her boyfriend, not her pimp. The other girls at the Spa told her he was her pimp because she was working in the sex trade and making money to support their lifestyle. ML rejected that idea because unlike the other girls, Mr. Lucas-Johnson did not take her money or control what she did. The comment from the other girls made her think about her relationship with him. ML testified her involvement in the sex trade began to tarnish what she thought was a “perfect relationship.”
The Second Month
[93] By the second month she was working six days a week. She did not recall whether it was Mr. Lucas-Johnson’s idea to increase her shifts. She testified she was motivated by having to contribute to the rent. She was making on average $400.00 per shift. She was still keeping her money at this point.
[94] ML testified about instances when Mr. Lucas-Johnson expressed violence toward a woman and she spoke of circumstances when relationships between pimps and prostitutes came up in conversations. Mr. Lucas-Johnson told ML about how he found his ex-girlfriend at another man’s house and how he dragged her out by her hair. Also, on one occasion when they were on an elevator with another couple the other woman looked at Mr. Lucas-Johnson. The man took the woman off the elevator by her hair. Mr. Lucas-Johnson explained what that incident was about. A prostitute should not look at someone else’s pimp.
[95] The talk about how he treated his girlfriend made her think differently about him. The message from the elevator incident was that a woman in the sex trade industry with a pimp has to show respect for her pimp. ML stated that although she and Mr. Lucas-Johnson showed respect for each other, sometimes when he got angry his “ideals of respect went out the window”. ML testified however that she never directly experienced physical violence or threats from Mr. Lucas-Johnson. She just heard about it indirectly through his comments about other women.
[96] ML testified that during the second month she was becoming exhausted by the number of hours she was working. She said she was losing her direction, her purpose in life. On one hand, she felt obligated to go to work. It was her job. She had financial responsibilities. She had no other source of money. On the other hand, it was ML’s evidence that when she was exhausted from work their relationship became strained during the second month.
[97] ML testified that Mr. Lucas-Johnson did not restrict her from contacting her family and friends. She would work all night and into the early morning, sleep all day the next day and go to work the next evening. She testified that as she began to work more shifts her contacts grew fewer and she drifted from her support system. Her family and friends did not know Mr. Lucas-Johnson and did not know what she was doing. She did not want to take phone calls because she did not want to answer questions.
After the Second Month
[98] The sex workers at the Spa were required to be licensed. Although ML intended to apply for a license she never did. On July 7, 2015 a Toronto police officer issued a ticket to ML because she was on the premises working unlicensed. ML remained at the condo two or three weeks after that incident.
[99] ML testified that after two months the circumstances with her money changed. She said that she started paying him. She started turning over all of her money to Mr. Lucas-Johnson. She testified he told her to take what she needs and leave the money she was making on the dresser. He said he told her he would not take it. It would stay in the condo. However, she said the money would be gone the next day. She first testified she did not know what sparked that change. She did not ask him why. She just did what he asked.
[100] ML testified she was not shocked by this. It was as if she was waiting for this to happen because her co-workers were all turning their money over to their pimps. When asked whether she had a choice, ML responded, “Not really. Because of the way the conversation went. It wasn’t like we were saving it.”
[101] ML testified about the change in her relationship when a co-worker from the Spa named Amanda came to live with them. This was her only friend at the Spa. She was in an abusive relationship with her pimp. ML took sympathy on her and invited her to hang out at the condo. ML testified that Mr. Lucas-Johnson invited her to stay at the condo with them and ML was in agreement. She estimated that Amanda stayed at the condo about two steady weeks.
[102] ML testified that her relationship with Mr. Lucas-Johnson changed dramatically. They had to monitor themselves around Amanda. They did not have the privacy their relationship used to have. They were no longer affectionate with each other. Conversations were all business, not personal.
[103] As well, Amanda was paying Mr. Lucas-Johnson, giving him all of her money from the Spa. With this development in her situation, ML said she was able to stand back and realize Mr. Lucas-Johnson had become her pimp. Both she and Amanda were giving him their money and they had to work together at the Spa.
[104] Although ML started to dislike her relationship with Mr. Lucas-Johnson and her work at the Spa she felt “she was in too deep”. He felt this is what “she signed up for”. She had lost touch with friends and family. She felt she could not say she wanted to leave because she thought if she left “she would have nothing … She would lose all of her value.”
[105] ML testified she had overheard what she thought was a physical altercation between Mr. Lucas-Johnson and Amanda while she was in the living room and they were in the bedroom. Although she heard yelling, furniture moving and sounds of struggle she did not observe anything. She believed Mr. Lucas-Johnson was assaulting Amanda and, together with his treatment of his ex-girlfriends, and his increasing temper with her, in the last few weeks she grew concerned.
[106] ML testified she reached her limit when she planned one day to go with Mr. Lucas-Johnson on a special date and he did not show up. He had gone out with Amanda and did not return to the condo as planned. She called him from the Spa and said she wanted to leave him and asked him to bring her belongings to the Spa. They argued and he dropped off some of her things. She went to the condo and picked up the rest of her belongings and went to a motel.
[107] Ultimately, a friend whom she had confided in about her life called her parents and a few days after ML left the condo, they met her at a restaurant and took her home.
[108] ML’s mother called the police and ML spoke to the police when they came to her home in around September 2015. ML testified that at that point she did not tell the police the details of what she experienced. Her mother was present and was not aware ML was involved in the sex trade. Out of shame and embarrassment ML had told no one about the details of her experience.
[109] It was only after she saw the CBC press release on December 20, 2016 that she went to the police and detailed her involvement with Mr. Lucas-Johnson in the sex trade industry.
ML’s Evidence on Cross-Examination
[110] I will address several of the areas of cross-examination I find most critical to my determination. Cross-examination brought out more detail about the internal dynamics of the relationship between ML and Mr. Lucas-Johnson.
[111] ML agreed with defence counsel’s suggestion that her personality was such that she had her own mind and that she would have no problem disagreeing with someone if the situation called for this. She agreed that the reason she went along with the lifestyle Mr. Lucas-Johnson proposed was because she wanted to.
[112] In answer to a question about whether ML considered it was her choice to work at the Spa, she said it was her choice.
[113] In answer to questions about whether Mr. Lucas-Johnson was violent or threatening toward her, ML responded that he never “hit, slapped or pushed” her. She said she was never concerned that he would harm her. She agreed there would sometimes be mutual pushing. She accepted that she had in fact assaulted him by throwing her cell phone at him.
[114] Defence counsel referred to ML’s testimony at the preliminary inquiry on August 4, 2017 where she spoke about an explosive argument she had with Mr. Lucas-Johnson toward the end of their relationship. ML agreed she had taunted him to hit her. He was getting very spatially close to her at this point. She told Mr. Lucas-Johnson “hit me and I’m gone.” She testified that from the beginning of the relationship she told him the only way she was going to leave is if he laid his hands on her.
[115] ML agreed she was the only one who got physical in that relationship. She also accepted that with all she knew about Mr. Lucas-Johnson she was not afraid to argue or get physical with him by the end of the relationship. But she seemed to detract from that evidence when she asserted that just because she stood up to him does not mean she was not fearful. ML said she would put on a front in arguments with him.
[116] In response to questions about her connection with her family while living at the condo, ML testified that throughout living at the condo she could freely call her family and that Mr. Lucas-Johnson drove her to her family home a couple of times and on other occasions she took public transit to her mother’s home.
[117] ML testified the reason she left was because Amanda entered the picture and because of how Mr. Lucas-Johnson was treating her. ML agreed with defence counsel’s suggestion that at no point did Mr. Lucas-Johnson attempt to make her stay. Defence counsel put to ML and she agreed that in fact he tried to make her leave. Mr. Lucas-Johnson accused ML of infidelity, of spending a lot of time with her former pimp and also accused her of cheating on him with another man in the hot tub at the condo. ML agreed this was true.
[118] Defence counsel further put to her, and she also agreed, that when he tried to make her leave, she threatened to call the police. ML testified Mr. Lucas-Johnson backed down “very quickly” after she made that threat. She agreed that she made that threat because she knew it would scare him into doing what she wanted. She could make him stop doing things she did not like. ML conceded that she threatened him because she did not want the relationship to end. The tension in the relationship grew to the point that one night Mr. Lucas-Johnson left the apartment angry and stayed at a friend’s place after an argument.
[119] ML testified she left the relationship because she did not want Mr. Lucas-Johnson to be her pimp. She said Amanda entering the picture was a factor but the way Mr. Lucas-Johnson treated her was the main catalyst for her leaving.
[120] ML did not have a job after she left Mr. Lucas-Johnson. To earn some money in the winter of 2015/2016 she began to work on her own in the sex trade, not in a spa and without a pimp.
SIMILAR FACT EVIDENCE APPLICATION
General
[121] The charges on the indictment pertain to sexual offences in relation to CM, under 18 years at the time, between January 1 and March 31, 2015, and to sexual offences in relation to ML, age 18 at the time, between April 1 and July 31, 2015.
[122] The Crown seeks to admit the viva voce evidence of the complainants as similar fact evidence of the discreditable conduct of Mr. Lucas-Johnson. The Crown wishes to: (a) demonstrate a pattern of behaviour, namely, to solicit, exploit and exercise control over young women for the purpose of procuring and engaging them in acts of prostitution for material benefit; (b) to negate the defence that the complainants are fabricating; (c) to establish Mr. Lucas- Johnson’s motive for engaging with the complainants and to rebut a defence of innocent association; and (d) to support each of the complainants’ accounts.
[123] The Crown argues that the similarity between the alleged offences shows an underlying course of conduct that provides a connection between the offences which supports the stories of the complainants. From the Crown’s perspective the extent of similarity between the offences precludes a finding of coincidence.
[124] Discreditable conduct evidence is presumptively inadmissible. An exception to this rule arises where the Crown establishes on a balance of probabilities that the evidence is relevant and that the probative value of the evidence outweighs its prejudicial effect: [R. v. Handy, 2002 SCC 56, [2002] S.C.J. No.57, at para. 55, (S.C.C.)]. This recognizes that evidence of previous misconduct by the accused may be so relevant and cogent to an issue at trial that the probative value of the evidence in the search for the truth outweighs any potential for misuse by the trier of fact: R. v. Handy, at para. [41].
The Analytical Framework
[125] R. v. Handy establishes the steps to follow to determine the admissibility of the proposed similar fact, discreditable conduct evidence:
Step 1: Probative Value of the Evidence
(a) Identification of issues in question
(b) Similarities and dissimilarities between the facts charged and the similar fact evidence;
(c) Strength of the evidence including potential for collusion
Step 2: Assessment of the Potential Prejudice
(a) Moral Prejudice
(b) Reasoning Prejudice
Step 3: Weighing Probative Value vs. Prejudice
(a) The factors to consider at Step 3 are set out in R. v. Handy at paras. 69-82, 99-101
[126] I find for the following reasons that the discreditable conduct/similar fact evidence in this case cannot satisfy the requirements of the first step in the analysis and therefore is inadmissible.
Probative Value of the Evidence
The Issue in Question
[127] The precise purpose for which the proposed similar fact is to be used must first be determined. This requires a determination of the relevance and materiality of the evidence: the query to be answered is: Is the evidence of discreditable conduct relevant to the material issue in question? [R. v. L.B.; M.A.G., 1997 CanLII 3187 (ON CA), [1997] O.J. No. 3042 (Ont. C.A.)].
[128] The evidence proposed to be admitted is a form of character evidence which means its relevance tends to be based on the premise that people tend to behave in a manner consistent with their character. Although this is not true in every case, the trier of fact may be assisted by evidence of how the accused has acted before and since the charges before the court: [R v. L.B.; M.A.G.].
[129] The evidence of discreditable conduct must relate to a live issue at trial, either by reason of the facts alleged in the charge or the defences advanced or reasonably anticipated, and must not be related simply to a minor fact or one already admitted by the accused. If not, the evidence is irrelevant and ought not to be admitted: R. v. Handy, at paras [115-116].
[130] It is appropriate in some instances to admit similar fact evidence for a limited purpose of establishing credibility to confirm the veracity of a complainant’s testimony: [R. v. R.B. (C.R.), 2003 CanLII 13682 (ON CA), [2003] O.J. No. 4589, at 739, (Ont. C.A.) and R. v. Gelesz, [2002] O.J. No. 3883, at para. 2, (Ont. C.A)].
[131] Other factors that enhance probative value are: similarity between the alleged offence which shows an underlying unity or course of conduct connecting the evidence, making the stories more probable: [R. v. Green, 42 Man. R.: affirmed (1988), 1988 CanLII 98 (SCC), 40 C.C.C. (3d) 333, at 350, (S.C.C.)]; evidence that rebuts the defence of recent fabrication: [R. v. G.R. (1993), 1993 CanLII 14699 (ON CA), 80 C.C.C. (3d) 130 (Ont. C.A.)]; evidence that shows surrounding circumstances that are particular or distinctive: [R. v. Rarru, [1995] B.C.J., at para. 30, (B.C.C.A)].
[132] I accept that the viva voce evidence of the complainants the Crown seeks to admit as similar fact evidence is evidence of discreditable conduct relevant to the issue of the accused’s pattern of conduct in soliciting, exploiting and exercising control over young women for the purpose of engaging them in prostitution for material benefit.
Similarities and Dissimilarities between Facts Charged and Similar Fact Evidence
[133] The next step in evaluating probative value of similar fact evidence is to determine the cogency of the evidence in relation to the particular issue or issues identified. R. v. Handy sets out as follows a non-exhaustive list of factors to be considered in determining the connection of the similar facts to circumstances in the charge:
● Proximity in time of the similar acts;
● Extent to which the other acts are similar in detail to the conduct charged;
● Number of occurrences of similar acts;
● Circumstances surrounding or related to the similar acts;
● Any distinctive feature unifying the incidents;
● Intervening events;
● Any other factor that could tend to support or rebut the underlying unity of the similar acts.
[134] I find the Crown’s application fails on the similarity/dissimilarity factor. While the Crown satisfies some of what I view to be less consequential factors, I find it fails to meet the requirements of the more critical factors.
[135] That is, in terms of proximity in time, Mr. Lucas-Johnson’s course of conduct in relation to CM and ML happened within months of each other. ML’s experience started within two months of when CM’s experience ended.
[136] There is a similarity in how and when Mr. Lucas-Johnson met CM and ML. He met them both in Halifax. He met both of the women through social media. His pattern of conduct with the women was similar. He socialized with them for a short period in Halifax, paying to take them out to dinner and the movies. They both found him friendly and trustworthy during that period.
[137] While in Halifax, Mr. Lucas-Johnson told them both about a condo he had in Toronto. He invited them both to go to Toronto and hang out with him. In Toronto, for a few weeks before the matter of the sex trade came up, Mr. Lucas-Johnson continued the friendly laid back behaviour with both CM and ML. He took them out to dinner, movies and to shopping malls. Both CM and ML lived at the condo a few months while they worked at the Spa.
[138] Mr. Lucas-Johnson introduced both CM and ML to the idea of working at the Spa. When they began working at the Spa, Mr. Lucas-Johnson, his friend, or a driver would drive them to and from the Spa. Neither CM nor ML had ever heard of an exotic spa where offering sexual services is legal.
[139] I find the factors I discussed above are either more peripheral to the material issue in question or are of secondary importance to the general circumstances that surrounded the women’s relationship with Mr. Lucas-Johnson and their work at the Spa.
[140] I find the more substantial and determinative factors in the circumstances of this case lie in the extent to which the other acts are not similar in critical detail to the conduct charged. There is also dissimilarity in the circumstances surrounding or related to the similar acts.
[141] The texture of the relationship the two women claim to have had with Mr. Lucas-Johnson was not similar. The relationship with CM started with Mr. Lucas-Johnson asking her from the start to come and stay with him at the condo for a few weeks. He did not do this with ML. The initial plan was for ML to stay at her family home and just to come and hang out with him at the condo.
[142] CM from the start was dependent on Mr. Lucas-Johnson financially and for a place to stay. Mr. Lucas-Johnson paid CM’s plane fare and ML paid for her own plane fare to Toronto. Further, ML moved home and CM moved directly into the condo where Mr. Lucas-Johnson had arranged for CM to sleep in a bedroom. ML went to the condo about a week after arriving in Toronto and stayed on the first occasion for a weekend and then returned home.
[143] Mr. Lucas-Johnson and ML formed a romantic relationship. ML considered Mr. Lucas-Johnson to be her boyfriend. For the most part of the relationship they had a loving, trusting relationship. In contrast, CM felt Mr. Lucas-Johnson was a trusted friend only for a few weeks at the start of their relationship. On her evidence, that changed to an abusive relationship one week after she arrived in Toronto. This was not the case with ML whose evidence was that she and Mr. Lucas-Johnson had built an affectionate relationship.
[144] On CM’s evidence, Mr. Lucas-Johnson forced her to work at the Spa. He gave her no choice. He took all of her money after each shift. He physically assaulted her regularly if she did not want to work or did not make enough money.
[145] This was not so with ML. ML grew intrigued and curious about working at the Spa. The lure of good money made working at the Spa attractive. Mr. Lucas-Johnson did not force her to work there. It was ML’s choice. He never assaulted her or threatened her. In fact, ML assaulted and threatened Mr. Lucas-Johnson. He did not take her money from her. She could spend it as she wished until the last few weeks when he requested she leave it on the dresser.
[146] On CM’s evidence, Mr. Lucas-Johnson never allowed her to be outside the apartment without him unless she was at work. She did not have a key or fob. CM’s relationship with Mr. Lucas-Johnson ended with her escaping from him when he was arrested. In contrast, ML was free to come and go as she pleased. She had a key and fob to the apartment. She left the apartment as a result of Mr. Lucas-Johnson wanting her to leave because of the decline in their relationship.
Conclusion on Similar Fact Application
[147] I find on balance, the differences in the circumstances surrounding the offences alleged substantially outweigh the similarities. On this basis, I exclude the proposed similar fact evidence.
[148] I need not go on to determine the other factors under probative value or to consider the next Steps in the similar fact analysis.
THE OFFENCES
Trafficking a Person
[149] The human trafficking offences under s. 279.01 and s. 279.011 of the Criminal Code seek to capture a number of types of conduct by the offender if those forms of conduct are committed to facilitate the exploitation of another person. Proof of any one of the enumerated types of conduct attracts a conviction.
[150] Section 279.01 of the Criminal Code applies to conduct in relation to persons age 18 and over:
279.01 (1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purposes of exploiting them or facilitating their exploitation, is guilty of an indictable offence.
[151] Section 279.011(1) contains similar language to s 279.01(1) but applies to the prohibited acts being committed in relation to a person under18 years of age.
279.011 (1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person under the age of eighteen years, or exercises control, direction or influence over the movements of a person under the age of eighteen years, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence.
[152] To constitute a violation the acts enumerated in s. 279.01(1) and s. 279.011(1) must be done for the purpose exploiting the other person. Exploitation is the crux of the offence of human trafficking. The tests for determining the existence of exploitation are dealt with under s. 279.04(1). There are subjective and objective components:
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.
[153] The factors to consider are set out in s. 279.04(2):
(2) In determining whether an accused exploits another person under subsection (1), the Court may consider, among other factors, whether the accused
(a) used or threatened to use force or another form of coercion;
(b) used deception; or
(c) abused a position of trust, power or authority.
[154] There is a subjective component to whether exploitation exists, the complainant’s subjective belief as to whether her safety was being threatened. There is also the objective factor which requires regard to be had to whether the facts of the complainant’s experience objectively amount to exploitation: [R. v. A.A., 2015 ONCA 558, at paras. 74 – 76, (Ont. C.A.)].
[155] The Ontario Court of Appeal, in R. v. A.A., set down some factors the Crown is required to establish for the offence of human trafficking. The decision in R. v. A.A. pertains a person, such as CM, under the age of 18:
On a straightforward reading of s. 279.011(1), three elements need to be established by the Crown in order for the offence of trafficking of a person under 18 is made out:
i. the conduct;
ii. prohibited group; and
iii. purpose
The conduct requirement may be established in several different ways including exercising control, direction or influence over the movements of another person;
The prohibited group requirement is met where the person who is the subject of an accused’s conduct is under 18.
[T]he purpose for which the conduct in relation to a member of the prohibited age group. Specifically, s. 279.011(1) requires that the accused act with the purpose of exploiting or facilitating the exploitation of that person.
R. v. A.A., at paras. [79 – 82]
[156] The interpretation of s. 279.011 as set down in R. v. A.A. applies to s. 279.01 but for the added element of “prohibited group” which refers to the class of persons under age 18.
[157] Certain principles can be summarized from the case law that inform the determination of human trafficking:
a) The conduct or actus reus of the offence of human trafficking can include:
i. proof any of the following specific actions: to recruit, transport, receive, hold, conceal, harbour; or
ii. proof of conduct that refers to the nature of the relationship between the complainant and the accused, that the accused “exercised control, direction or influence over the movements of a person: [R. v. Urizar,[2013] Q.J. No. 132, at paras. 74 -76, (Que. C.A.)]
• b) The mental element or mens rea requires proof that the conduct was done with the specific purpose of exploiting another person or for the specific purpose of facilitating their exploitation by another.
• c) The purpose element extends beyond the intentional conduct that is the actus reus of the offence to what could be described as the object an accused seeks to attain, or the reason for which the conduct is done or the result intended: R. v. A.A., at para. [82].
• d) To establish intentional conduct it matters not that the accused achieved their purpose. No exploitation need actually occur or be facilitated by the accused to obtain a conviction for human trafficking: R. v. A.A., at paras. [84 and 85].
e) The test for exploitation is satisfied where one person exploits another person where they cause the other person to provide labour by doing something that could reasonably be expected to cause the other person to believe, on all the circumstances, that their safety or the safety of another would be threatened if they failed to provide the labour. Thus, the conduct has to be such that it results in a reasonable expectation of a particular state of mind in the complainant. In summary:
• i. the expectation of the specific belief engendered by the accused’s conduct must be reasonable, thus have an objective basis;
• ii.. The determination of the expectation is to be made based on all the circumstances; and
• iii. The person’s safety need not actually be threatened. The complainant need not assert fear for their safety or that of another person. The evidence must demonstrate objectively, that a reasonable person, standing in the shoes of the victim, would be afraid in all the circumstances.
[158] The term “safety” is not limited to protection from physical harm, but also extends to psychological harm: R. v. A.A., at para. [71]
ANALYSIS ON HUMAN TRAFFICKING
The Case of CM
General Comment
[159] I had a great deal of difficulty with the reliability and credibility of CM’s evidence in critical areas. This is so much so that I am not sure of what occurred over the two months she stayed at Mr. Lucas-Johnson’s condo, what the nature of CM’s circumstances were, what the nature of her relationship was with Mr. Lucas-Johnson.
[160] CM was under age 18 at the time so the requirements of s. 279.011 of the Criminal Code are under consideration.
[161] I found CM’s evidence at trial evolved in certain areas from what she told the police and what she testified to at the preliminary inquiry. There were inconsistencies between her police statement and the preliminary inquiry evidence and between those sources of her evidence and her trial evidence. The problems with CM’s evidence that concern me most are not on peripheral matters. I find the deficiencies go to the heart of whether it can be shown beyond a reasonable doubt that CM was a victim of human trafficking. That is the material issue before the court.
[162] I do not find that any singular problem with CM’s testimony raises a reasonable doubt about Mr. Lucas-Johnson’s guilt. It is the totality of the problems that make her account of her experiences unreliable, untrustworthy. I have little confidence that it would not be dangerous to convict Mr. Lucas-Johnson on her evidence.
Early Period of the Relationship with Mr. Lucas-Johnson
[163] CM had a trusting relationship with Mr. Lucas-Johnson during the brief period in Halifax and for the first week in Toronto. She considered him a friend and confidante. During the second week when CM asked to go home because her mother was ill, he ignored her. He never responded to her and walked away. She said he did not get angry. He said she had to pay him back the money she owed him.
[164] Then, quite unexpectedly, Mr. Lucas-Johnson showed CM a website of the Spa. The suggestion was that she would work there. CM testified she did not like the idea of working at a place that, from what she saw on the website, women were in sexy poses wearing scanty lingerie. In that conversation, Mr. Lucas-Johnson told her nothing about the business at the Spa. She never asked.
[165] CM never asked why he would suddenly change from a friendly, supportive person to expecting her to work in such a place, particularly when on CM’s evidence the relationship was still cordial. The Spa only came up in conversation on that one occasion before she began working there.
[166] Two or three days later, Mr. Lucas-Johnson just drove her to the Spa without warning. On the way, he told her nothing about the Spa’s business. CM never asked. When she got to the Spa, Mary, the proprietor, told her the business was providing sexual services to men. She testified she did not want to stay there to work. But she did.
[167] In-chief at trial, CM testified the first argument and physical violence by Mr. Lucas-Johnson occurred after the first shift. Initially, on cross-examination at trial she gave the same evidence. She said Mr. Lucas-Johnson just wanted her to work to pay him back. There was no violence or threats before she started working at the Spa.
[168] Defence counsel pointed to contradictory evidence she gave to the police. She told the police that Mr. Lucas-Johnson was first violent before she worked at the Spa when she mentioned wanting to go home to see her ill mother. Contrary to her trial evidence, she told the police he followed her into the bedroom and “slammed” her against the wall and told her she was going to make money for him every day.
[169] In response, CM insisted that Mr. Lucas-Johnson was not violent before she worked at the Spa. She said he did not actually “slam” her against the wall. He just “pushed” her against the wall and that was not violence to her. She said, maybe she did not use proper grammar.
[170] I find that inconsistency problematic for a number of reasons. If Mr. Lucas-Johnson had not been violent or angry with her before she started working that would reasonably mean their relationship had not yet drastically changed. He was still her confidante, her friend. CM’s evidence is that during the good part of the relationship she was open with Mr. Lucas-Johnson telling him personal concerns about her life. The question then is why at this point in their relationship she did not raise the simple question of what type of business went on at the Spa. Why did she not ask why he was telling her she had to work there instead of paying him back in the other way she suggested?
[171] Then there is the basic fact of a marked inconsistency between CM’s evidence to the police and her evidence at trial about Mr. Lucas-Johnson’s physical assault on her. Her explanation that she meant “pushed” and not “slammed” is questionable. Her evidence that being pushed against the wall was not violence - when he had never previously been aggressive with her - does not make sense. It does not stand to reason that the use of the word “slammed” was simply a grammatical problem. I find in giving that evidence CM made a poor attempt to explain an inconsistency.
[172] The question of violence in the context of human trafficking is an important issue. It is a factor to consider when assessing the existence of exploitation. However, I cannot conclude that this problem with her evidence alone is sufficient to raise a reasonable doubt about Mr. Lucas-Johnson’s guilt.
CM’s Evidence about the Spa
[173] Defence counsel asked CM what she said to Mary when she first arrived at the Spa. CM testified she introduced herself by her true name. To defence counsel’s suggestion that she must have given Mary her true identification which would be in accord with the name she had given Mary, CM responded that she had given Mary the false identification showing a false name and date of birth.
[174] It was put to CM that her answer to the defence suggestion was not sensible. CM testified she did this “trying to make it known it was not me on the picture, but obviously she (Mary) didn’t care.” She did not answer why she would give a name different than that on her identification. In answer to the question why she did not simply tell Mary she did not want to work at the Spa, CM responded, “Yes, maybe I wasn’t thinking right, obviously because I did not know where to go.”
[175] Again, I found CM’s evidence in this area did not make sense. I find she was attempting to explain the discordance between her introduction to Mary and the identification she presented. She did not explain why she did this. I found her answers to the defence’s questions were not responsive. The answers simply did not make sense.
[176] The issue of identification particularly with complainants under age 18 is an important issue in a human trafficking case. As will be discussed below, s. 279.03(2) of the Criminal Code makes an offence withholding or concealing the identification of a person under age 18 for the purpose of facilitating the offence of human trafficking. Mr. Lucas-Johnson faces this charge in relation to CM. However, again I find despite the unreasonable nature of her evidence on that issue this is not alone a sufficient basis to raise a reasonable doubt about Mr. Lucas-Johnson’s guilt.
Absence of Restrictions on Communication and Opportunities to Seek Help
[177] CM had access to a cell phone at the Spa during the two months she resided at Mr. Lucas-Johnson’s condo. She took her cell phone to work with her. According to her evidence, when Mr. Lucas-Johnson smashed her phone, he replaced it with Tanesha’s old phone.
[178] CM testified Mr. Lucas-Johnson was beating her on a daily basis. He was forcing her to work every day at the Spa when she did not want to be there. Defence counsel questioned why under those circumstances, she did not call for help since at the Spa she would be outside his physical control.
[179] CM acknowledged Mr. Lucas-Johnson had not restricted her use of her phone. She admitted that she could have called the police and that they would have helped her. CM did not give a reasonable explanation for not calling the police. She said she just did not want to involve the police.
[180] There was also the circumstance when CM left the Spa with her earnings after a shift and rented a hotel room. Defence counsel put to her that she had the opportunity to call or go to the police for help. She admitted she could have. But did not want to. Instead, CM told Mr. Lucas-Johnson where she was and Mr. Lucas-Johnson went to the hotel and picked her up. CM’s explanation for telling him where she was is that Mr. Lucas-Johnson threatened her and she was afraid.
[181] There was also the opportunity for CM to report her circumstances to the police when they came to the condo on March 17th and arrested Mr. Lucas-Johnson. A police officer was in the bedroom speaking directly to CM asking her about her circumstances. The defence asked her why she did not tell the police about the Spa and Mr. Lucas-Johnson. It was put to CM that now she had the support of the police and Mr. Lucas-Johnson was not in a position to threaten or assault her while he was in the custody of the police. CM’s answer was that she wanted to get home without the involvement of the police.
[182] Then rather than taking another opportunity to escape Mr. Lucas-Johnson and his associates while he was in jail, instead of seeking help, she followed his direction to stay in the guest suite with his cousin and his girlfriend. Her explanation for this was that she had nowhere else to go. She had no friends or contacts in Toronto. This of course allowed Mr. Lucas-Johnson to know CM’s whereabouts.
[183] Moreover, without any direct control or coercion by Mr. Lucas-Johnson because he was in jail, CM returned to work at the Spa after she left the guest suite. CM’s explanation was again that she did not know where else to go. CM denied working any more than once at the Spa at this time. She then spent a further two weeks in Toronto staying with a co-worker. She did not call the police until she could no longer stay with her co-worker for free.
[184] Exercising control, direction or influence over a complainant’s movements is an element of human trafficking. It is a key feature of an exploitative relationship. Control of a complainant’s ability to communicate with contacts and with sources of help are critical issues with this offence. I found once again that CM’s explanations for not taking advantage of the opportunities to seek help are not reasonable in view of her descriptions of the terrifying and abusive life she experienced when was working at the Spa and living under the control of Mr. Lucas-Johnson. Her return to work at the Spa when Mr. Lucas-Johnson was in jail, I find, poses a credibility problem for CM’s evidence that she worked at the Spa because of Mr. Lucas-Johnson’s control over her and her fear.
[185] Perhaps, even the evidence in this area alone may not be weighty enough to raise a reasonable doubt of Mr. Lucas-Johnson’s guilt.
Evidence on Restriction of Movement and Access to Financial Resources
[186] The evidence that I reference in relation to the restriction of CM’s movements and access to financial resources might seem almost inconsequential if considered alone. I find it is in the combination of faults in those areas of evidence with the other faults in CM’s evidence that the facts around restrictions on her movement and money take on some importance.
[187] There is evidence to suggest CM was not as restricted to the apartment and to always being with Mr. Lucas-Johnson as she alleged. Her evidence was that when she was not at the Spa she was never allowed to be away from the apartment without him. Either he was with her when she was outside to make purchases of food and personal items or he would purchase those things for her. She testified Mr. Lucas-Johnson took all of her money after each shift and she never had any of her money to buy anything for herself.
[188] CM also testified she never had a key or a fob to the building or apartment. She always had to be buzzed in by Mr. Lucas-Johnson or Tanesha. Defence counsel inquired about CM’s evidence in her police statement that she messaged Mr. Lucas-Johnson on Facebook that she left the keys to the condo when she left the apartment for good. CM’s initial answer to the defence question was unintelligible and then when pressed she said maybe she had a key once or twice. This suggests that CM had more ability to move independently than she admitted.
[189] CM was also questioned about the evidence she gave in-chief at trial that, when Mr. Lucas-Johnson would lock her in the bedroom after a fight about the Spa, he would deny her food. He did this about five times she said.
[190] CM never told the police about being denied food. As well when asked she could not explain how the bedroom door was locked. She was asked why she would not disclose such severe treatment to the police. CM’s response was that she thought she had told that to the police.
[191] I find it more reasonable that she would have reported such inhumane treatment to the police if it had in fact occurred, particularly when CM spoke to the police only three weeks after she left the apartment and this horrible experience should have been fresh on her mind. The problems in this area of her evidence leave a question as to whether Mr. Lucas-Johnson actually restricted her to the bedroom or otherwise confined her.
[192] Defence counsel raised a question about CM’s ability to use her money to purchase things. CM denied in her evidence in-chief that she had ever purchased anything. However, in her police statement CM spoke about returning to the apartment to retrieve her belongings and not being able to locate the air mattress she had purchased. CM did not give an intelligible explanation for this statement to the police.
[193] With the offence of human trafficking, issues of restriction of mobility and access to financial resources by a victim are among the key factors to consider in determining the existence of exploitation.
[194] Again I find CM’s evidence in those areas alone are not sufficient to raise a reasonable doubt about Mr. Lucas-Johnson’s guilt.
Conclusion on Human Trafficking Related to CM
[195] I find there are simply too many discrepancies, unanswered questions, unresponsive answers, ambiguous and unintelligible responses in critical areas of the evidence for me to find CM is a reliable and credible witness. I find it difficult to know what to believe, hard to determine what evidence is trustworthy from what is not. With all the evidentiary pitfalls I find it would be an exercise in futility to attempt to apply the rather complex legal framework of human trafficking to CM’s evidence.
[196] I find the totality of the credibility and reliability problems in CM’s evidence raise a reasonable doubt about Mr. Lucas-Johnson’s guilt of human trafficking. It would simply be too dangerous to convict on such a frail and unreliable evidentiary record.
The Case of ML
General Comment
[197] ML was 18 years of age at the relevant time so sections 279.01(1) and 279.04 of the Criminal Code are applicable. I must say I found ML to be an intelligent witness. Overall, I found her to be credible and reliable. I found she straightforwardly told the court about her experience with Mr. Lucas-Johnson during the two months she resided at the condo. However, for the following reasons, I do not find that the facts of her experience meet the essential requirements of the crime of human trafficking.
ML’s Early Relationship with Mr. Lucas-Johnson
[198] ML and Mr. Lucas-Johnson developed a friendly social relationship over the period that they hung out together in Halifax. ML testified she felt they had compatible personalities. She was employed temporarily as a nanny and was planning to move back to Ontario. Mr. Lucas-Johnson was aware she was from a town just outside of Toronto. He told her about a condo he had in Toronto and invited her to hang out there with him when he returned to Toronto.
[199] ML’s plan was that when her job ended, as it did in May 2015, she would move to her family home and wait for Mr. Lucas-Johnson to arrive in Toronto by car. He agreed to take some of her belongings she was unable to carry with her to Toronto. When he arrived about a week later he drove to her home and stopped briefly to drop off her things.
[200] ML testified there was no initial plan for her to live at the condo with him. She was planning to live with her family. ML’s first visit to the condo was during a weekend shortly after Mr. Lucas-Johnson arrived in Toronto. He invited her to stay at the condo for a weekend. ML packed enough clothes in a duffle bag for the weekend.
[201] Their relationship grew closer during that weekend. Mr. Lucas-Johnson and ML got along very well. He took her out for dinner, to theatres and malls. They formed a romantic relationship. She considered him her boyfriend. They decided ML would return home after the weekend and come back with more clothes so that she could stay longer at the condo. She loved the lifestyle of living in a luxury condo. ML testified she was aware that she did not have a job to support such a lifestyle.
[202] The relationship between ML and Mr. Lucas-Johnson was going so well she eventually gradually moved into the condo. She and Mr. Lucas-Johnson shared the master bedroom. She had a key to come and go as she pleased.
Introduction of the Spa by Mr. Lucas-Johnson
[203] During the second week at the condo, Mr. Lucas-Johnson introduced Sunshine Spa to ML. He told her about spas where women make money offering sexual services to men. He told her she could make a lot of money doing this work. She responded that she had never heard of a spa that operated that kind of business.
[204] ML testified that the idea of working in the sex trade did not shock her because she had previously worked in the sex trade as an escort. She actually was working as an escort with a pimp in Nova Scotia while she was working as a nanny. She paid the pimp from the money she earned. She was fully aware that the business at the Spa was sex trade.
[205] ML stated that she was attracted to the idea of working in the sex trade in a legal environment, a safe place, with easy work, where the clients are a better class of men. ML said she was intrigued with engaging in the sex trade in such an environment. She was curious. She did not have a job. This was a way to make money to pay her share of expenses to support the lifestyle. She testified Mr. Lucas-Johnson was making money selling drugs and working in landscaping.
[206] The second conversation about the Spa was for Mr. Lucas-Johnson to confirm whether they were on the same page about ML working at the Spa. ML had decided she wanted to do this. He wanted to make sure of that. ML was in full agreement. Mr. Lucas-Johnson did not force her to work there. It was her choice. She stated that by this time she was emotionally attached to Mr. Lucas-Johnson.
[207] The next conversation was about the practical matters of what ML was to wear at work. He took her shopping at a mall for lingerie and shoes. He paid for the items. She said she was a little suspicious of what he might want from her for paying for these things. But this did not deter her from wanting to work at the Spa. Mr. Lucas-Johnson drove her directly to the Spa after shopping.
Working at the Spa
Access to Means of Communication and Lack of Restriction on Mobility
[208] On her first attendance at the Spa ML introduced herself to Mary and adopted an alias to use at work. Unexpectedly, Mary asked her to work that day. She agreed. The shift was and remained 7:00 p.m. to 4:00 a.m., during the two months she worked there. Either Mr. Lucas-Johnson, or a friend of his, or a driver would transport her from home to the Spa and back.
[209] ML always had her cell phone with her at work. The plan on each shift was for ML to call or text Mr. Lucas-Johnson before she serviced a client and afterwards to let him know how much she made. ML agreed with that arrangement. At the condo ML always had possession of her cell phone. She always had keys to the condo and could come and go as she pleased.
[210] Mr. Lucas-Johnson did not attempt to put restrictions on her calling her friends and family. They did not know what she was doing in Toronto. On some occasions Mr. Lucas-Johnson drove to her family home to stay for weekends. At other times ML would take public transportation to see her family.
[211] However, during the last few weeks when ML was working six days a week, she lost contact with her friends and family. This was self-imposed. She grew tired from work and did not want to answer any questions friends and family might ask about what she was doing in Toronto.
ML’s Access to her Earnings and Control over Hours of Work
[212] On the first shift ML made $1,000.00. On average she made $400.00 per shift. During the first month she was working three or four days a week. Mr. Lucas-Johnson raised no questions about this. She testified at times she did go to work when she did not want to. She did so because she felt responsible for contributing to living expenses.
[213] The relationship continued to be a loving one until shortly before she left. They continued to show respect for each other. ML considered Mr. Lucas-Johnson to be her boyfriend not her pimp. Unlike the other girls at the Spa, who had to give all their earnings to their pimps, ML kept her money and she could spend it as she wanted. She resisted the other girls’ characterization of her boyfriend as her pimp.
[214] ML used her money to pay for rent and expenses and for personal items. There was never an issue about her keeping her money. He never actually took her money from her. He did not force her to work when she did not want to. Except, on one occasion, he asked her to work an extra shift because she drank on the first shift and made no money. She worked the extra shift.
[215] By the second month, ML was working six days a week. Even though she was growing exhausted she felt an obligation to go to work. That was her job.
[216] After the second month, a few weeks before she left the condo for good, the situation with her money changed. Mr. Lucas-Johnson asked her to start putting her money on the dresser after shifts. He did not take it from her. Mr. Lucas-Johnson said that he would just leave it there. But the money would be missing the next day. CM associated the change with the fact that Amanda was giving all of her money to him and he did not want to appear to be treating ML differently.
The Change in the Relationship
[217] ML talked about the relationship changing when Amanda moved into the condo. She and Mr. Lucas-Johnson were no longer as romantic as they had been. The relationship took on a business-like quality. The respect was diminishing. She was exhausted from work. They argued more frequently.
[218] ML testified that now she was leaving her money for Mr. Lucas-Johnson. She now began to think of him as her pimp and she did not approve of that.
[219] ML ultimately decided she was through with Mr. Lucas-Johnson when he stood her up on a date while he was with Amanda. She decided she wanted to end it. She moved to a motel. Mr. Lucas-Johnson did not try to stop her from moving out. He did not stop her from leaving him.
ML’s Free Will and Absence of Violence in Relationship
[220] ML agreed with defence counsel that her personality was such that she has her own mind and would have no difficulty disagreeing with someone if the situation required it. She agreed she went along with the sex trade lifestyle because she wanted to. She testified it was her choice.
[221] ML testified she did not really fear Mr. Lucas-Johnson. She did not worry that he would harm her. He never threatened her. He never hit, slapped or pushed her. She testified that at the end of the relationship there would sometimes be mutual pushing. But she was the only one who got physical in the relationship. She threw her phone at him.
[222] Also toward the end of the relationship, ML admitted to taunting Mr. Lucas-Johnson during an intense argument. She told him to hit her and if he did she would leave. ML said she was not afraid to argue with him or to get physical. In fact, Mr. Lucas-Johnson wanted her to leave. She admitted that when he told her to leave she threatened to call the police on him because she knew that would make him do what she wanted. That scared him and he quickly backed down.
[223] ML admitted she did not really want to leave the relationship. She ultimately left because Mr. Lucas-Johnson wanted her to leave.
ANALYSIS OF HUMAN TRAFFICKING RELATED TO ML
The Conduct
Recruit
[224] Mr. Lucas-Johnson introduced ML to the idea of working at the Spa. He told her the name of the proprietor of the Spa who she could contact. He was familiar with the place. ML had not previously known about the legal sex trade industry operating in spas. ML was unemployed and wanted a job so she could contribute to supporting the lifestyle in the luxury condo. Mr. Lucas-Johnson told her of the good money she could make. ML was not shocked or turned off by the information she received about the sex trade. She had previous experience in that business doing escort work and exotic dancing.
[225] To “recruit” someone is defined in the Oxford Dictionary as “persuading or helping someone to do something”. Mr. Lucas-Johnson’s introduction of the idea of working at the Spa involved a level of persuasion. Persuasion is a matter of degree.
[226] On ML’s evidence it did not take much persuasion for her to agree to take on that kind of work. That is, after the introductory conversation, Mr. Lucas-Johnson simply checked in to see if ML was still agreeable to the idea. ML told the court she was intrigued, curious, about the idea of working in that type of establishment. She said it was her choice to work there. There is no evidence Mr. Lucas-Johnson made ML work in the sex trade against her will as is often the case.
[227] Nonetheless, I find Mr. Lucas-Johnson recruited ML when he introduced her to the idea and promoted the work in his discussions with her.
[228] However, to make out the offence of human trafficking the recruitment has to be effected for the purpose of exploiting her or facilitating her exploitation. As I find below, the evidence does not establish the requisites of exploitation.
Holds, Conceals, Harbours a Person
[229] ML was free to come and go to and from the condo as she pleased. Mr. Lucas-Johnson never tried to restrict her. She could go shopping for items she needed. She did not have to depend on him. ML could go to visit her family. Mr. Lucas-Johnson even took her to her family on occasions. ML always had a key to the apartment. She could go in and out without relying on Mr. Lucas-Johnson letting her in.
[230] There is no evidence Mr. Lucas-Johnson held, concealed or harboured ML at any time.
Transport, Transfer, Exercise Control over Movements
[231] The facts do not support that Mr. Lucas-Johnson exercised control, direction, or influence over ML’s movements. ML paid her own plane fare to Toronto. She arrived in Toronto on her own. She went to stay with her family. She did not depend on Mr. Lucas-Johnson for accommodations.
[232] Mr. Lucas-Johnson, a friend of his, or a driver would take ML to and from the Spa. In the context of ML freely choosing to work at the Spa she must have been agreeable to the transportation arrangements. There is no evidence that she was transported to the Spa against her will. Rather than being a form of control over ML’s movement, I find the arrangement was more of a convenience, a practicality, a means for ML to get to work, not unlike other such arrangements for other types of employees to get to work. There is no evidence he transported her for the purposes of exploitation.
[233] The arrangement that ML call or text Mr. Lucas-Johnson before and after servicing a client and that she inform him of the money she earned, in the context of their relationship, was a voluntary arrangement on ML’s part. She did not complain about this. They were in a relationship pooling their money to support themselves. There would be a mutual interest in what she earned.
[234] ML always had possession of her cell phone. She could communicate with anyone she wished. There is no evidence Mr. Lucas-Johnson kept track of ML through her cell phone or of him demanding she keep in touch against her will.
[235] I find there is no evidence that Mr. Lucas-Johnson exercised control, direction or influence over ML. There is no evidence he transported or transferred her against her will. In fact toward the end Mr. Lucas-Johnson wanted ML to leave him. She was the one who did not want to leave. She did not want the relationship to end. She just did not want him to be her pimp.
Exploitation
Factors of Exploitation
[236] The factors to consider under s. 279.04(2) are whether Mr. Lucas-Johnson’s conduct involved: (a) force or a threat of force, (b) deception or (c) an abuse of a position of power, trust or authority.
[237] There is no evidence that Mr. Lucas-Johnson ever threatened ML or used force or violence against her. Quite on the contrary, ML assaulted him. She stopped him from making her leave the condo by threatening to call the police on him.
[238] Deception and abuse of a position of power, trust or authority in my view are not issues in this case.
[239] There was no deception. ML knew full well what she was getting into at the Spa. She might not have liked how the relationship turned out at the end with Mr. Johnson requesting her to leave her money on the dresser, but ML was fully aware of the implications of that. She was not a stranger to the sex trade. The relationship ended soon afterwards.
[240] Mr. Lucas-Johnson was not in a trust or authority relationship with her. He was her boyfriend and romantic partner.
For the Purpose of Exploitation
[241] The Crown must establish that Mr. Lucas-Johnson’s conduct was for the purpose of exploiting or facilitating the exploitation of ML.
[242] I find there is no evidence that through his conduct Mr. Lucas-Johnson was seeking to exploit ML.
[243] Mr. Lucas-Johnson and ML had formed a romantic relationship by the time he introduced the Spa to her. ML was unemployed. They had mutually decided ML would move into the condo with him. ML was clear that she wanted to contribute to financially supporting the lifestyle in the luxury condo. Mr. Lucas-Johnson introduced her to a means to make good money. Until just before the end, ML had control over the money she earned. Because of her past experience in the sex trade she was not frightened or offended by the idea of re-entering the sex trade. In fact, she was intrigued and curious about working in a spa.
[244] I find the clear purpose of Mr. Lucas-Johnson suggesting the Spa was to help ML find work so she could pay her share of the household expenses. This was totally agreeable to ML. She went along with the idea by choice.
[245] I find there is no subjective or objective basis to find that ML believed if she did work at the Spa, her safety or someone else’s safety would be in jeopardy.
CONCLUSION ON HUMAN TRAFFICKING RELATED TO ML
[246] I find on all the evidence before the court the Crown has not proved beyond a reasonable doubt the essential elements of human trafficking in relation to ML.
MATERIAL BENEFIT AND COMMODIFICATION OF SEXUAL SERVICES
Regarding Both Complainants
[247] The Criminal Code offences of material benefit from human trafficking under s. 279.02(1) and s. 279.02(2), obtain sexual services for consideration under s. 286.1(1) and s. 286.1(2), material benefit from commission of a crime under s. 286.1 contrary to s. 286.2(1) and s. 286.2(2) and procuring to offer sexual services under s. 286.3(1) and s. 286.3(2) are before the court.
Material Benefit from Human Trafficking
Regarding Both ML and CM
[248] Section 279.02(1) requires a finding of human trafficking under s. 279.01(1) in relation to ML and under s. 279.02(2) requires such a finding of human trafficking under s. 279.011(1) in relation to CM.
[249] I did not find Mr. Lucas-Johnson engaged in human trafficking in relation to either ML or CM. Therefore, the Crown has not proven beyond a reasonable doubt Mr. Lucas-Johnson’s guilt of material benefit from human trafficking in violation of s. 279.02(1) and s. 279.02(2) of the Criminal Code.
Consideration for Sexual Services
Regarding ML and CM
[250] Section 286.1(1), related to ML, and s. 286.1(2), related to CM, provide that obtaining sexual services from another person for consideration is an offence. Those provisions make purchasing sexual services or communicating in any place for that purpose a criminal offence. These sections provide as follows:
286.1 (1) Everyone who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person is guilty of
(a) an indictable offence
(2) Everyone who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person under the age of 18 years is guilty of an indictable offence.
[251] Regarding ML, the facts do not disclose that Mr. Lucas-Johnson purchased or received sexual services from ML for consideration or communicated with anyone for the purpose of obtaining sexual services from ML for consideration contrary to s. 286.1(1) of the Criminal Code.
[252] Regarding CM, for reasons of the unreliability of her evidence I cannot find beyond a reasonable doubt that Mr. Lucas-Johnson purchased or received sexual services from CM for consideration or communicated with anyone for the purpose of obtaining sexual services from CM for consideration contrary to s. 286.1(2) of the Criminal Code.
Material Benefit from Sexual Services
The Law
[253] Section 286.2(1), related to ML, and s. 286.2(2), related to CM, provide that receiving material benefit as a result of an offence under s. 286.1(1) and s. 286.1(2) is an offence. Thus, a finding of guilt under both s. 286.2(1) and s. 286.2(2) depend on an offence being committed under s. 286.1(1) and s. 286.1(2). That is, it is an offence to receive financial or other material benefit obtained by or derived from the commission of a purchasing offence under s. 286.1.
286.2 (1) Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(1), is guilty of an indictable offence.
(2) Everyone who receives a financial or other material benefit, knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(2), is guilty of an indictable offence.
[254] Section 286.2(4) specifies circumstances that are exempt from the scope of s. 286.2(1) and s. 286.2(2). Those are situations where a person is not prevented from selling their own sexual services, and another person receiving a benefit from the sexual services, if the arrangement takes place under certain circumstances. One such exception under s. 286.2(4)(a) that I find applicable in this case provides that no offence is committed if the sexual services are offered within the context of a “legitimate living arrangement.”
Regarding ML
[255] I find that ML and Mr. Lucas-Johnson were in a romantic relationship for the two months they lived together at the condo. They mutually decided to live together and pool their financial resources to support their lifestyle in the luxury condo. Mr. Lucas-Johnson earned income from working in landscaping and selling drugs. ML earned income working at the Spa which she used to pay her personal expenses and her share of the living expenses at the condo. Mr. Lucas-Johnson clearly received financial benefit from ML offering sexual services.
[256] But I find the exception applies. The factual context discloses that ML and Mr. Lucas-Johnson were in a domestic living arrangement, albeit short-lived, in which they were romantic partners. The relationship broke down soon after Mr. Lucas-Johnson asked her to leave her money on the dresser. This was disappointing to ML because she loved him and did not want him to be her pimp. The relationship ended when Mr. Lucas-Johnson ultimately wanted her to leave.
[257] I find ML’s and Mr. Lucas-Johnson’s relationship meets the requirement of a “legitimate family arrangement”.
[258] Section 286.2(5) provides that the exceptions under s. 286.2(4) do not apply if there is violence, threats of violence or coercion or abuse of trust or authority by the person who receives the benefit from the sexual services of the other person; or if the person who receives the benefit provides drugs or other substances to the person who offers the sexual services.
[259] There is no evidence that the types of conduct referred to under s. 286.2(5) were features of the relationship between ML and Mr. Lucas-Johnson. Nothing under that provision bars the application of s. 286.2(4)(a).
[260] The Crown has not been able to establish beyond a reasonable doubt that Mr. Lucas-Johnson committed an offence under s. 286.2(1) of the Criminal Code.
Regarding CM
[261] Regarding CM, again for reasons of her poor credibility and the unreliability of her evidence, I cannot determine whether Mr. Lucas-Johnson received material benefit from obtaining the sexual services of CM for consideration or communicated with anyone for that purpose. I do not find CM’s evidence gives me any level of certainty about the nature of their relationship or the arrangement in regards to CM’s earnings.
[262] The Crown has not proven beyond a reasonable doubt that Mr. Lucas-Johnson committed an offence under s. 286.2(2) of the Criminal Code.
Procuring
The Law
[263] Section 286.3(1), in relation to ML, and s. 286.3(2) in relation to CM, provide that everyone commits an offence who procures a person to offer or provide sexual services for consideration; or, for the purpose of facilitating an offence under s. 286.1(1) in relation to ML, and under s. 286.1(2), in relation to CM, recruits, holds, conceals or harbours a person or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person.
286.3 (1) Everyone who procures a person to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(1), recruits, holds, conceals or harbours a person who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.
(2) Everyone who procures a person under the age of 18 years to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(2), recruits, holds, conceals or harbours a person under the age of 18 who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence.
[264] The intent of s. 286.3 is to prohibit conduct related to procuring others for the purpose of them offering sexual services. The offence criminalizes a person’s involvement in another person selling their sexual services. The Oxford Dictionary defines “procuring” as “persuading or causing someone to do something”. A person procures another person for prostitution if they cause or induce that person to sell sexual services.
[265] It is also an offence, for the purpose of facilitating the purchasing offence, to recruit, hold, conceal or harbour a person who offers or provides sexual services for consideration, or to exercise control, direction or influence over the movements of that person.
Regarding ML
[266] ML had never heard of a spa that offered sexual services. She was not familiar with an establishment where the sex trade was legal. She was unemployed. Mr. Lucas-Johnson told her she could earn good money working at the Spa. He already knew Mary, the proprietor of the Spa, and directed ML to speak to her. ML became intrigued and curious and agreed to work there.
[267] Mr. Lucas-Johnson was clearly aware of the work ML would be doing at the Spa. He bought her lingerie and shoes to wear on the job. Mr. Lucas-Johnson drove her to the Spa and picked her up after her first shift and transported her there at other times thereafter.
[268] I find Mr. Lucas-Johnson “procured” ML when he introduced her to the idea of earning income from the sex trade. He persuaded or caused her to offer sexual services for the purpose of other men purchasing her services for consideration.
[269] In addition, or alternatively, as I observed in the discussion of human trafficking in relation to s. 279.01, the facts establish that by Mr. Lucas-Johnson introducing the idea of the Spa to ML he “recruited” her to offer sexual services to other persons. I apply the same finding to recruiting as contemplated by s. 286.3(1). I am satisfied that Mr. Lucas-Johnson recruited ML for the purpose of facilitating the s. 286.1(1) offence of other persons purchasing her sexual services.
[270] I find the Crown has proven beyond a reasonable doubt that Mr. Lucas-Johnson committed the offence of procuring the sexual services of ML contrary to s. 286.3(1).
Regarding CM
[271] Again, for reasons of the unreliability of CM’s evidence on a whole, I do not know whether Mr. Lucas-Johnson recruited CM to offer sexual to persons at the Spa for consideration or facilitated other persons purchasing CM’s sexual services for consideration contrary to s. 286.3(2).
[272] I find the Crown has not proven beyond a reasonable doubt that Mr. Lucas-Johnson committed the offence of procuring the sexual services of CM under s. 286.3(2).
FORCIBLE CONFINEMENT
Regarding CM
[273] Section 279(2) of the Criminal Code provides that it is an offence to, without lawful authority, confine, imprison or forcibly seize another person. CM alleges Mr. Lucas-Johnson, by force and threats, restricted her from leaving the condo on her own and locked her in the bedroom after work.
[274] I conclude based on the unreliability of CM’s evidence on a whole that the evidence raises a reasonable doubt that Mr. Lucas-Johnson forcibly confined CM. In particular, I refer to the doubt raised by her failure to tell the police about being denied food while confined and the added fact of her not knowing how the door was locked. This raises sufficient skepticism that I cannot reasonably find that Mr. Lucas-Johnson forcibly confined CM in violation of s. 279(2).
WITHHOLDING OR DESTROYING DOCUMENTS
Regarding CM
[275] Section 279.03(2) of the Criminal Code provides it is an offence for a person, for the purpose of committing an offence under s. 279.011(1) in relation to a person under age 18, to remove or withhold any document that establishes the other person’s identity.
[276] CM alleges Mr. Lucas-Johnson took her government-issued identification and would not allow her access to it. Again, the general unreliability of her evidence, and the specific discrepancies in her evidence about her use of identification at the Spa, do not permit a finding that beyond a reasonable doubt Mr. Lucas-Johnson committed this offence.
BREACH OF RECOGNIZANCE
[277] Mr. Lucas-Johnson was also charged with breach of recognizance under s. 145(3)(a) of the Criminal Code for failure to reside with his surety. The Crown withdrew that charge.
CONCLUSION
[278] I find the Crown has failed to establish beyond a reasonable doubt Mr. Lucas-Johnson’s guilt on counts 1 – 11 inclusive and count 14.
[279] The Crown has succeeded in establishing beyond a reasonable doubt Mr. Lucas-Johnson’s guilt on counts 12 and 13.
VERDICT
[280] I find Shondell Lucas-Johnson guilty on count 12 (procuring age 18) and count 13 (procuring age 18) and convictions shall be entered accordingly.
[281] I find Shondell Lucas-Johnson not guilty on: count 1 (human trafficking under age 18); count 2 (material benefit/human trafficking under age 18); count 3 (conceal identity document under age 18), count 4 (material benefit/sexual services) under age 18; count 5 (procuring under age 18); count 6 (procuring under age 18); count 7 (material benefit/sexual services under age 18); count 8 (forcible confinement); count 9 (breach of recognizance); count 10 (human trafficking age 18); count 11 (material benefit/human trafficking age 18); and count 14 (material benefit/sexual services age 18). Acquittals will be entered accordingly.
B.A. ALLEN J.
Released: June 22, 2018
COURT FILE NO.: CR-17-50000615-0000
DATE: 20180622
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SHONDELL LUCAS-JOHNSON
Accused
REASONS FOR DECISION
B.A. ALLEN J.
Released: June 22, 2018