COURT FILE NO.: CR-20-9897 DATE: 2022-03-04

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN – and – JULIO MALDONADO VALLEJOS

Before: The Honourable Justice Catrina D. Braid

Counsel: Tricia Holmes, Counsel for the Crown/Respondent Eric Uhlmann, Counsel for the Applicant

HEARD: December 10, 2021 and written submissions

Corrected decision: the correction was made on April 27, 2022. The file number has been corrected from CR-18-2531 to CR-20-9897.

Ruling Re: Whether Discreditable Conduct Application is Required

I. Overview

[1] Julio Maldonado Vallejos is charged with human trafficking and other related offences. During a judge-alone trial, the complainant testified about text message exchanges and other discussions that she had with Mr. Maldonado. The complainant described how Mr. Maldonado spoke about reaching out to other women for the purpose of procuring them to engage in sex work as part of their “team”. In these reasons, I shall refer to this evidence as “the impugned evidence”.

[2] Mr. Maldonado brought an application for directions with respect to whether a discreditable conduct application is required before the impugned evidence is admissible at trial. In these reasons, I shall refer to Mr. Maldonado as the applicant.

[3] The applicant submits that the impugned evidence is other disreputable conduct falling outside of the charges on the Indictment, is presumptively inadmissible and should not be admitted. The Crown submits that the impugned evidence relates directly to the elements of the offences charged, and therefore an application is not required for it to be admitted. At this stage of the proceedings, the sole issue is whether the impugned evidence forms part of the subject matter of the charges.

[4] In a brief endorsement dated December 28, 2021, I advised the parties that the Crown is not required to bring a discreditable conduct application; and that the impugned evidence relates directly to the elements of the offences. These are my reasons for that decision.

II. Background

[5] The applicant is charged with human trafficking, procuring sexual services for consideration, advertising sexual services, receiving material benefit from human trafficking, assault, assault with a weapon, forcible confinement, and two counts of criminal harassment. A judge-alone trial commenced before me on October 12, 2021.

[6] At trial, the complainant testified about text messages and other conversations that she had with the applicant. The text messages were filed on consent and marked as an exhibit.

[7] The following is a summary of relevant portions of the complainant’s testimony and/or the text messages:

• The applicant explained to the complainant that they would have a team of girls, and that all the women would be escorting. Since the complainant had friends who had already done escorting, he wanted to see if any of them would work for him or be on his team.
• The applicant would go on the complainant’s phone looking at her Instagram, Snapchat and Plenty of Fish accounts to find photos of girls that he found attractive. He would message girls under the complainant’s profile, pretending to be her, to ask them if they are down to start escorting and try to pimp them out, to add girls to the team.
• The applicant did not permit the complainant to message girls or have conversations with them. She would have to wait until he was there to open the messages.
• He eventually took over the complainant’s Plenty of Fish account by changing the email confirmation and password.
• The impugned evidence relates to five women. When referring to these women, I shall use initials to protect the complainant’s identity: i. Sa: The complainant testified that the applicant asked the complainant to send pictures of her friend Sa who had previously done escort work. Sa was supposed to be present the first time the complainant and applicant met in person, but she did not attend. ii. A: The complainant testified that the applicant saw a photo of A on the complainant’s Instagram. He found her attractive and he thought she looked like she was down to do this stuff. He wanted the complainant to try and talk A into escorting, but the complainant did not want to expose herself. iii. Si: The complainant testified that the applicant found Si through the complainant’s Plenty of Fish account and messaged her. He wanted to get her to join the team. iv. K: There are several text messages referring to a woman with the username K. In those messages, the applicant tells the complainant to “chat with her, but not about work, find out if she’s real because her profile was pretty sexual, if it’s real, we can flip her”. v. P girl: There is one message in relation to “P girl”.
• There is no evidence that any of these women ever joined the team.

[8] Defence counsel submits that the impugned evidence is inadmissible evidence of discreditable conduct, since it is conduct other than the subject matter of the charge. He also submits that the Crown was required to bring a pretrial application before introducing this evidence.

[9] In response, the Crown expressed frustration with the defence’s objection being raised at this point in the trial. The text messages were disclosed more than two years ago. The text messages and the evidence at the preliminary hearing revealed that the complainant believed that the applicant was trying to create a team. The Crown states that defence counsel should not have been surprised by the Crown’s reliance on these messages in the fashion proposed.

[10] A judge has discretion to allow counsel to challenge evidence already received and will do so where the interests of justice so warrant: see R. v. Gundy, 2008 ONCA 284 at para. 22.

[11] In this case, the Crown did not change its theory of their case. However, I am mindful that defence counsel may not have realized the significance of these particular messages. While the untimely defence objection has caused significant delays to this trial, I will not prevent defence counsel from raising the issue at this time. It is in the interests of justice that this issue be raised, despite the fact that it was raised mid-trial and well after the text messages had been disclosed.

III. Analysis

A. Other Disreputable Conduct

[12] Other disreputable conduct applies to evidence other than that which forms the subject matter of the charge: see R. v. L.B., (1997) O.R. (3d) 35 (C.A.) at paras. 14-18. An application to admit other disreputable conduct is not required where the evidence relates to the subject matter of the charges.

[13] In this case, the sole issue is whether the impugned evidence forms part of the subject matter of the charges before the court.

B. Does the Evidence Form Part of the Human Trafficking Count?

[14] The human trafficking offence alleges that Mr. Maldonado “did recruit, transport, transfer, receive, hold, conceal, harbour or exercise control, direction or influence over the movements of [the complainant], for the purpose of exploiting her”. The actus reus requirement is made out if the applicant engaged in any one of the specified types of conduct: see R. v. Gallone, 2019 ONCA 663, 147 O.R. (3d) 225 at para. 33.

[15] The prohibited conduct of human trafficking may be established in several different ways, including exercising control, direction or influence over the movements of another person. The objective of Parliament was to criminalize a wide range of intentional conduct that has, as its purpose, the exploitation of vulnerable persons: see R. v. A.A., 2015 ONCA 558 at paras. 80 and 88.

[16] The majority of trafficking in persons in the sex trade will involve exercising control, direction or influence over the movements of a person. These involve different degrees of coercion, with control being the most coercive and influence being the least coercive. Exercising control is like giving an order that the person has little choice but to obey. Exercising direction is like imposing a rule that the person should follow. Exercising influence means doing anything to affect the person’s movements, and would include anything done to persuade, induce, alter, sway, or affect the will of the complainant. Influence can be exerted while still allowing for the person’s free will to operate: see Gallone, at paras. 46-48.

[17] Parliament used terms which require consideration of whether, because of the relationship between the applicant and the complainant, the applicant was in a position or had the ability to, and did, exercise control, direct or influence the movements of a person who provides sexual services for consideration. A trial judge must consider the nature of the relationship between the accused and the complainant when assessing whether the accused exercised control, direction or influence: see R. v. Ochrym, 2021 ONCA 48 at para. 33.

[18] The Crown only needs to show that the accused acted for the purpose of exploiting the complainant, but actual exploitation does not need to be proven: see Gallone at para. 54.

[19] The accused’s power over the complainant can be committed in different ways. It may be an isolated act or it may be coordinated acts, so long as they are committed for the purpose of exploiting a person or facilitating their exploitation: see R. v. Urizar, 2013 QCCA 46 at para. 72.

[20] An accused exploits a person if they cause the victim to provide or offer to provide any labour or service, by doing something that could cause the victim to believe that their safety is threatened. The term safety includes physical safety and psychological safety. Deception and other forms of psychological pressure can satisfy the exploitation element. The following circumstances may be relevant:

i. violence or threats; ii. physical, emotional or psychological coercion; iii. deception; iv. abuse of trust, power or authority; v. vulnerability due to age or personal circumstances; vi. isolation of the complainant; vii. nature of the relationship between the cues and the complainant; viii. directive behaviour; ix. influence exercised over the nature and location of services provided; x. control over advertising of services; xi. limitations on the complainant’s movements; xii. control of finances; xiii. financial benefit to the accused; and xiv. use of social media to assert control or communications with others.

See R. v. Sinclair, 2020 ONCA 61 at para. 15.

[21] The fault element for human trafficking is focused on the accused’s purpose in exercising control, direction or influence over the movements of the person. Actual exploitation need not occur: see R. v. A.A. at para. 86.

[22] In the case before the court, the Crown is not leading the impugned evidence in order to establish that the applicant was procuring other women or that he is more likely to have exploited the complainant because he was trying to exploit others. Instead, the Crown states that the evidence supports both the actus reus and mens rea of the human trafficking charge.

[23] The Crown states that the complainant was young, naïve and vulnerable when she began speaking with the applicant. She had lived on her own for two years, had not finished high school and was struggling financially. She started to develop romantic feelings for him and was willing to do things for him.

[24] Mr. Maldonado introduced the idea of prostitution as a solution to her financial troubles. He told her early on that they would work together as a team and make money together. She would provide sexual services to clients and the applicant would take care of other things, including transportation, hotels, advertising, etc.

[25] The human trafficking charge is particularized to do with the complainant specifically. The applicant argues that, to adduce efforts to procure five other women or about growing a team is inherently not part of the efforts to procure or traffic the complainant.

[26] While it is true that the charge is particularized to the complainant, I find that the impugned evidence directly relates to the exploitation of the complainant. If the complainant’s evidence is believed, the applicant told the complainant that they would have a team of girls who would be escorting. Since the complainant had friends who had already done escorting, he influenced her to reach out to her friends to convince them to work for him and be on his team. He was using the complainant to get other women to join the team. He was going through her personal social media accounts, finding her friends, and using her contacts to try and lure more women into prostitution.

[27] If her evidence is believed, he exploited the complainant by attempting to recruit other women under the guise that they would form a large team that would generate money. It is relevant to the nature of their relationship and her alleged exploitation. If the impugned evidence is believed, it may demonstrate that the applicant was not acting in a manner to help the complainant, but was exploiting her.

[28] I find that the impugned evidence forms part of the subject matter of the human trafficking charge. It is relevant to the actus reus because it is evidence of the accused exercising control, direction or influence over the movements of the complainant. It is also relevant to the mens rea, as it is evidence that he acted for the purpose of exploiting her.

C. Does the Evidence Form Part of the Procuring Count?

[29] The procuring offence alleges that that Mr. Maldonado “did procure [the complainant] to offer or provide sexual services for consideration, for the purpose of facilitating an offence [of communicating for the purpose of obtaining sexual services for consideration or obtaining sexual services for consideration].”

[30] Procure means to cause, or to induce, or to have a persuasive effect upon the conduct that is alleged: see R. v. Gallone, at para. 61.

[31] It is alleged that the applicant procured the complainant into prostitution. He found her when she was vulnerable and persuaded her that her financial issues would be resolved when she began prostituting. The applicant also persuaded the complainant to reach out to other women to have them join the team as part of his efforts to procure her. He led her to believe that she would be making significant sums of money, which enabled him to procure her. He has procured the complainant and is using her to procure other women.

[32] I find that the impugned evidence forms part of the subject matter of the procuring charge. It is relevant to the actus reus of causing or inducing the complainant to provide or offer to provide sexual services for consideration.

D. Does the Evidence Form Part of the Other Counts?

[33] The Crown submits that the impugned evidence also supports the following charges:

i. that the applicant “did knowingly advertise an offer to provide sexual services for consideration” (advertising count); and ii. that the applicant “did receive financial or material benefit, knowing that it is obtained or derived directly or indirectly from the commission of an offence of human trafficking” (material benefit count).

[34] I do not accept these submissions. The Crown has not established how the impugned evidence forms part of either of these offences. These charges are specific to the applicant’s actions in relation to the complainant. There is no allegation or evidence that the applicant advertised the sexual services of the other women or that he ever received a material benefit by trafficking these other women.

IV. Conclusion

[35] For all of these reasons, I find that the impugned evidence forms part of the subject matter of the human trafficking and procuring charges. The Crown is not required to bring a discreditable conduct application.

Braid, J. Released: March 4, 2022