COURT FILE NO.: JJ 4/22
DATE: 2022-10-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Loic Aruel SIMEU, Anthony BADIBANGA-MUKENDI, Kevin RODRIGUEZ-HIDALGO and Joseph Dominique TEMDEMNO NKAMGANG
Robert Thomson, for the Crown
Sandra Kimberg, for Loic Simeu
HEARD: September 12, 2022
REASONS FOR DECISION
KURZ J.
Introduction
[1] Loic Simeu, (the “Applicant”) applies pursuant to s. 520(1) of the Criminal Code for a review of the detention order made by J.P. Curtis on April 16, 2021. Following a bail hearing conducted over three days, the justice of the peace ordered that the Applicant be detained on the primary, secondary and the tertiary grounds.
[2] The Applicant argues that the justice of the peace erred in law in ordering his pre-trial detention. In the alternative, he argues that there has been a material change of circumstances since the making of that detention order that warrants a de novo consideration of his release.
[3] For the reasons that follow, I dismiss this application.
Background
Orders Binding the Applicant at the Time of the Initial Bail Hearing
[4] At the time of the bail hearing, the Applicant was subject to two court orders. The first, granted on December 20, 2020, was a recognizance of bail in respect of charges involving the complainant, A.P., as described below. The terms of release included the requirement that he “[r]eside with your surety each and every night and abide by the rules and discipline of your surety”. The bail term had no exceptions.
[5] The second was a conditional sentence order made by Latimer J. of the Ontario Court of Justice (“O.C.J.”), dated January 22, 2021. That order required the Applicant to remain in his home at all times, with certain exceptions described below.
[6] At the time of the bail hearing, the Applicant was facing two sets of charges in two informations in relation to two complainants, A.P. and N.C.
[7] The charges regarding A.P. were for forcible confinement (s. 279(2)), uttering threats (s. 264.1), obtaining sexual services for consideration (s. 286.3(1)) and assault peace officer (s. 270).
[8] The charges regarding N.C. were: human trafficking (s.279.01(1)); obtain sexual services for consideration (s.286.3(1)); advertising sexual services (s.286.4); disobey court order (i.e. non-communication order) (s. 127(12)); receiving a material benefit from human trafficking of persons (s.279.02(1)); receiving a material benefit from procuring (s. 286.2(1)); withholding or destroying documents to facilitate human trafficking (s. 279.03); sexual assault (s.271); assault (s.266); unlawful confinement (s. 279); theft under (s. 334(6)), and breach of recognizance x 2 (s. 145(5)(a)).
[9] The of breach recognizance charges relate to a previous bail term that prohibited the Applicant from having contact with anyone who had an advertisement on LeoList (a website used for advertising sexual services), as well as using that website.
[10] Following the bail hearing, the Applicant was detained pending trial on the charges contained in the two informations.
Trial of A.P. Charges Before Harris J.
[11] On November 15, 2021, following a ten-day trial, Harris J. of the O.C.J. convicted the Applicant of the charge of obtaining sexual services for consideration in respect of A.P. (he pleaded guilty), but acquitted him of the remaining charges including assaulting the police. Harris J. sentenced the Applicant to a period of incarceration of 60 days, which he has now served.
Subsequent C.R. Charges Against the Applicant
[12] Since the bail hearing, a third Information was laid, setting out charges in respect of a third complainant, C.R. These charges include: human trafficking (s.279.01(1)); receiving a material benefit from human trafficking (s.279.02(1)); receiving a material benefit from procuring (s.286.2(1)); advertising sexual services (s.286.4); and sexual assault (s.271).
[13] The Applicant has not had a bail hearing in respect of the charges involving C.R. The parties agree that I may consider these charges as part of the bail review before me and that my decision on this bail review will be binding in respect of these charges. In other words, this bail review will also count as a bail hearing in the first instance for the C.R. charges.
Summary of the Charges Subject to this Bail Review:
[14] In its materials for this application, the Crown summarizes the allegations that led to the N.C. charges against the Applicant as follows:
Ms. [N.C.] alleges that she met Mr. Simeu at a party in Toronto in July 2020. Following that she quickly entered into what she thought was a romantic relationship with Mr. Simeu, but in fact was an exploitive relationship where she worked as a sex worker and handed over the money to Mr. Simeu. She alleges that he expected her to make $10,000 a week. At one point she tried to leave in March 2021, and Mr. Simeu grabbed her by the neck and dragged her back into the apartment.
[15] The Crown adds that:
In October and November 2020 they discovered the hotel room Ms. [N.C.] used to sell her sexual services was rented by Mr. Simeu. They also found that she was not the person responding to the contact number on her ads for sexual services. This was prior to Ms. [N.C.] coming forward.
[16] It is also alleged that during consensual vaginal intercourse, the Applicant had anal intercourse with N.C. without her consent, while she said “please stop, please stop.”
[17] The Applicant’s trial before a judge and a jury is scheduled to proceed in this court, on a joint Indictment with four other men, commencing November 28, 2022.
Summary of Allegations in Respect of C.R.
[18] The Crown’s materials for this application offer the following summary of the allegations regarding the C.R. charges:
Ms. [C.R.] alleges she met Mr. Simeu at a strip club in 2019 and then later in January 2021 he reached out to her again. He told her he could help her make more money in the sex trade. He explained her could help her with adverting and showed her the “Guap” system (later discovered by police on his phone as Gwapster). Mr. Simeu coached Ms. [C.R.]. She handed over the money she made to Mr. Simeu and he gave her 30% back. Ms. [C.R.] told Mr. Simeu she wanted to stop working, he told her she either had to sell her sexual services or message clients (for other women). Ms. [C.R.] was then required to communicate with clients on behalf of a number of other women under his control.
[19] The Crown also alleges that the Applicant attempted to have sexual intercourse with C.R. without her consent.
[20] The Applicant’s trial in respect of the charges involving C.R. is scheduled to commence in the Ontario Court of Justice on January 9, 2023.
Outstanding Charges for Breaches of Court Orders:
[21] In addition to the charges involving N.C. and C.R., the Applicant continues to face two charges for breaching court orders. Both are in respect of bail conditions arising from the A.P. charges, which include not contacting anyone on the sexual services website, LeoList. The Applicant is accused of contacting a woman named Nastacia Morris, whose sexual services appear on the LeoList website. The Crown alleges that at the time of his most recent arrest on the N.C. charges, the Applicant was residing with Ms. Morris. Those charges will be tried along with the other charges in the N.C. indictment.
The Bail Hearing Before J.P. Curtis
[22] The bail hearing took place before the justice of the peace on April 9, 13 and 16, 2021. At that time, the Applicant faced charges involving A.P. and N.C., including the two breach of recognizance counts. As a result, the Applicant was in a reverse onus situation: s. 524(4) CCC.
[23] The Applicant’s proposed plan of release at the bail hearing provided that he would be supervised by two sureties: his cousins, Joseph Dominique Temdemno Nkamgang (“Tendemno”), and Vivian Glenn Nzuguem Nkamgang. The plan, as the justice of the peace put it, “reduced to its essentials, consists of (1) 24/7 house arrest, (2) the installment of the GPS ankle bracelet monitoring program by Recovering [sic] Science Corporation, and (3) the supervision of two sureties.”
[24] The justice of the peace heard the evidence of the two proposed sureties over the course of two days. They gave evidence that they wished to assist their cousin and would ensure compliance with any bail terms, including the house arrest, GPS monitoring and their own supervision. But they conceded that their association with the Applicant was primarily limited to their infrequent family gatherings and occasional video games played together on the internet.
The Justice of the Peace’s Reasons for Detaining the Applicant:
[25] In his oral reasons, the justice of the peace concluded that the Applicant should be detained based on each of the primary, secondary and tertiary grounds. He offered a nutshell synopsis of his reasoning as follows:
After assessing the totality of the evidence presented in the [sic] Loic
Simeu's bail application, it is apparent that there are three predominant threads intertwined to create the tapestry of his life narrative at this juncture; one, there is the predominant thread of Loic Simeu's challenges associated with non-compliance of court orders, secondly, there is the thread of a fraudulent disposition and lifestyle and thirdly, there is the thread of two divergent worlds which exist in Loic Simeu's life, the clandestine world of human trafficking, combined with fraudulent activity and the world of his family. These two worlds seldom converge and when they do, marginal influences is [sic] transferred between his family and Loic Simeu.
[26] J.P. Cutis noted that at the time of the hearing, the Applicant had already accumulated 49 criminal convictions. He found that the Applicant had been offered a number of less intrusive alternatives to detention, including the highest such level, house detention. In doing so, he cited that “ladder principle” described R. v. Antic[^1]. The justice of the peace wrote: “Loic Simeu has been provided with a number of rungs on the ladder of bail release, but regrettably has lost his footing on each rung previously provided.”
Applicable Principles in s. 520(1) Bail Review
[27] Under s. 520(1) of the Criminal Code, an accused may apply to a judge for a review of a detention order at any time before trial. On a review under s.520(1), it is open to this court to review any aspect of the Applicant’s detention including the detention itself, the form of release and any conditions of release.
[28] In R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 120, 139, the Supreme Court of Canada held that a bail review is not simply an open-ended hearing de novo regarding the previous bail order. Rather, it is a hybrid remedy. First, the reviewing court must determine whether to exercise its power of review. It is only appropriate to exercise the power to review where the accused has established that: (a) the initial justice erred in law, (b) the initial justice's decision was clearly inappropriate, "that is the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another", or (c) new evidence is tendered which shows a material and relevant change in the circumstances of the case.
[29] Second, and only after the court determines that it is appropriate to exercise its power of review, may the court intervene with the previous order. However, s. 520(1) does not give the reviewing court carte blanche to review the original order or simply decide that it would have made a different decision just because it would have weighed the relevant factors differently: R. v. St. Cloud at para. 120.
Position of the Applicant on the Bail Review:
[30] The thrust of the Applicant’s argument is that the justice of the peace’s decision contained errors of law, fact, and mixed fact and law; and that there has been a material change of circumstances since the time of the detention order. He argues that those alleged errors and/or material change warrant a consideration of his release de novo. He further argues that his new, more strict release plan justifies his release because the primary, secondary and tertiary concerns under s. 515(10) are now met.
Did J.P. Curtis Make Errors of Law in Deciding to Detain the Applicant?
[31] The Applicant argues that the justice of the peace erred in law or mixed law and fact in the following six ways:
He detained the Applicant on the primary ground without providing any reasons;
He concluded, without any evidence, that the Applicant’s criminal record was caused by an “undiagnosed mental health disorder”;
He denied the Applicant procedural fairness by detaining the Applicant on the basis that the proposed plan failed to address the “critical” element of an undiagnosed mental health disorder, without advising the Applicant of his concerns and permitting him an opportunity to make submissions on this point;
He misapprehended the evidence and wrongly concluded that the Applicant’s previous release order contained a “house arrest” condition;
He took the allegations “at their highest” and failed to properly assess the strength of the Crown’s case;
The court erred in finding the four enumerated factors were at near maximum force.
Analysis on the Issue of Legal Errors by J.P. Curtis
1. Primary Ground
[32] I agree with the Applicant that a justice of the peace should consider each of the three grounds, preferably separately. The foundation for the finding that the detention of the Applicant was warranted on the primary ground is not clear from the justice of the peace’s reasons here. The Crown did not present evidence that the Applicant was a flight risk or that he would not attend court when required. I add that the Applicant has neither a conviction for failure to appear nor or a history of non-attendance at court.
[33] That being said, the thrust of the justice of the peace’s decision to detain the Applicant turned on his findings on the secondary and tertiary grounds. As set out below, I find that the justice of the peace made no errors of law in respect of those grounds. Since the secondary and tertiary grounds are sufficient to support the detention of the Applicant, the justice of the peace’s failure to consider the primary ground separately does not warrant intervention.
2. “Potential Mental Health Disorder”
[34] No evidence was adduced at the bail hearing that the Applicant had a mental health disorder. In his oral reasons, the justice of the peace referred to a “potential” mental health disorder, rather than stating that he found that the Applicant displays such a disorder. Thus, imprecise as the justice of the peace’s language may have been, he was not purporting to have diagnosed a mental health disorder that was relevant to the Applicant’s entitlement to bail.
[35] Rather, from a review of his reasons as a whole, the justice of the peace’s description of a “potential mental health disorder” can be read somewhat metaphorically – as a lens through which to understand the Applicant’s record of dishonesty and breaches cited above.
[36] The justice of the peace was obviously concerned about the Applicant’s persistent re-offending and blatant disregard of court orders. In the absence of some explanation as to the root cause for such behaviour, he was not satisfied that the proposed release plan would manage the risk that the Applicant would re-offend while on pre-trial release or address the concerns on the tertiary grounds. On the record, the justice of the peace’s concerns are readily supported.
[37] I find no error in this regard.
3. Failure to Alert Counsel to Issue of Potential Mental Health Disorder
[38] Of course, as a matter of procedural fairness, a litigant is entitled to know the case to be met and be given an opportunity to make submissions in respect of key issues. The defence argues that the Applicant was denied the right to make submissions about the “potential mental health disorder” issue. I disagree.
[39] The issues of the Applicant’s lengthy criminal record, credibility, and their applicability to the secondary and tertiary grounds were front and centre before the justice of the peace. The Applicant knew or should have been aware of those issues during the bail hearing.
4. Misapprehension of the evidence about the Applicant’s prior house arrest:
[40] I do not accept the Applicant’s argument that the justice of the peace misapprehended the evidence and wrongly concluded that the Applicant had previously been subject to house arrest.
[41] On December 7, 2020 the Applicant was released on bail. The bail order required him to “[r]eside with your surety each and every night and abide by the rules and discipline of your surety”. The term had no exceptions.
[42] On January 22, 2021, the Applicant received a conditional sentence from Latimer J. of the O.C.J. The sentence required him to: “[r]emain in your residence or on the property of your residence at all times”. That term was subject to certain limited exceptions i.e., Saturdays between noon and 4pm, going directly to and from or while being at work, and with written approval of the supervisor. Taken together the terms can be said to have amounted to house arrest or at the very least, a virtual house arrest.
[43] In my view, the justice of the peace did not misapprehend the evidence about the Applicant being subject to house arrest before. Clearly, he was subjected to terms that were akin to house arrest in two orders at the time of his arrest.
5. “Taking the Charges at Their Highest”
[44] The Applicant argues that the justice of the peace took the allegations against him “at their highest” and failed to properly assess the strength of the Crown’s case. However, there is no reference in the justice of the peace’s reasons to “taking the charges at their highest”. Rather, the comments that the Applicant criticizes were made in an exchange with counsel during the course of argument.
[45] During an exchange during submissions, the justice of the peace said to counsel:
[I]t was very clear to the Court that you had some very direct questions. Unless you're — you would be content that Mr. Thomson surmise what he has learned from the officer. That happens in most Bail Hearings. They surmise what's happened and they tell it to the Court. The Court doesn't give it weight as far as, you know, I'm, I'm not accepting it as fact but I have to take allegations at their highest, especially when it's involving allegations of this, this nature. But at the same time, I, I want to be, I want to be respectful to your questions and the requirement you had for your answers. But if the Court decides not to admit this evidence, then is that reasonable defence, counsel, to suggest that the court was not completely open and aware of all of the facts in this matter and its decision. It's kind of, it's kind of a catch-22 for the Court.
[Emphasis added]
[46] Judges and justices of the peace often engage in discussions as part of a dialectical process of challenging arguments made by each side. Such exchanges occur in order to better understand the parties’ arguments and expose them to closer scrutiny. Here, the back and forth arose regarding the admission of the written answers of a police officer to questions posed by defence counsel. This exchange does not indicate that the justice of the peace made his decision by simply taking the Applicant’s charges at their highest. Rather, his comments reflect his legitimate concern about genuine issues before him: the admissibility of evidence, and how to balance the seriousness of the allegations and the presumption of innocence in the face of the Applicant’s denial of guilt. None of this indicates an error in the justice of the peace’s reasons for denying bail to the Applicant.
[47] With regard to a consideration of the apparent strength of the Crown’s case, that is an issue that is explicitly set out in the Criminal Code in regard to the tertiary ground, under s. 515(10)(c)(i), rather than the secondary ground.
[48] In that regard, the justice of the peace made specific refence to the apparent strength of the Crown’s case, stating:
After careful analysis of St. Cloud's interpretation of the circumstances surrounding the apparent strength of the prosecution's case and being mindful that St. Cloud instructed the bail judges not to play the role of the trial judge in assessing the credibility witnesses and reliability of evidence, I was especially cognizant of my role to specifically analyze the quality of the evidence tendered by the prosecutor in order to determine the weight to be given by this factor.
Notwithstanding defense counsel's assertions that the evidence appears circumstantial on its face. I found the quality of the evidence compelling and graphic, even with the defence counsel’s argument involving the victim’s willingness to come forward at this time and be a witness for the Crown. Yet always cognizant of the evidence that the victim has been allegedly trafficked and sexually exploited by the accused Loic Simeu.
6. The Justice of the Peace erred in finding the four enumerated factors in CC. s. s. 515(10)(c) were at near maximum force.
[49] This argument refers to the four enumerated factors regarding the tertiary ground set out in CC s. 515(10)(c). It is simply a restatement of the Applicant’s previous arguments regarding alleged errors set out above. The argument is that the five previously alleged errors, that taken as a whole, along with the fresh evidence provided by the Applicant, necessitate a hearing de novo.
[50] This argument is simply an attempt to reshuffle the weighing of factors previously determined. It does not stand as an independent ground of error.
[51] Thus, I find that the Applicant has not established that the reasons for his detention contain any substantial errors, whether of law, fact or mixed fact and law.
Has There Been a Material Change in Circumstances?
[52] The Applicant submits that his new release plan, combined with the resolution of the charges involving A.P., the time that he has spent incarcerated as a result of Harris J.’s sentence (approximately two months), and the conversion of his conditional sentence to a custodial one (approximately one month) amount to a material change in circumstances, that warrants a review and a de novo consideration of his release.
[53] The Crown concedes that there has been a material change in circumstances that warrants a review and a de novo consideration of the Applicant’s detention. This is because the A.P. charges on which the Applicant was originally detained have been dealt with. However, even in the face of the material change, it argues that the Applicant has not met his onus to demonstrate that his detention is not warranted. That is because of: 1) the new and serious charges the Applicant is now facing regarding C.R., including human trafficking, 2) the new evidence obtained from a forensic examination of the Applicant’s phone, seized from his person when he was arrested on the N.C. charges, and 3) the unchanged nature of the concerns identified by the justice of the peace.
[54] I agree with the Applicant and accept the concession of the Crown that this is an appropriate case for a hearing de novo in light of the changes since the time of the bail hearing. That being the case and having considered the Applicant’s new proposed release plan, I am not satisfied that he has discharged his onus to show that his detention is unnecessary on the secondary or tertiary grounds for release.
The Applicant’s New Release Plan
[55] The Applicant’s new release plan proposes that his mother, Michelle Modjo, and sister, Muriel Simeu, rather than his two cousins, be his sureties. He proposes to move into his mother’s home in Ottawa, along with his sister. Ms. Simeu will move from her home in Montreal to her mother’s home, to live with Ms. Modjo in order to assist in supervising the Applicant.
[56] The Applicant’s plan of supervision includes house arrest that would see him confined to his mother’s home. The only exceptions to that confinement would be to enable him to attend court or his lawyer’s office with his surety (I note that he proposes to live in Ottawa but his lawyer is located in Toronto). He would also be subject to electronic monitoring through a GPS ankle bracelet, monitored by Recovery Science Corporation.
[57] Ms. Modjo offered a $20,000 pledge, which she testified would be a meaningful sum to her. She has $22,000 in savings. She also owns a house in Ottawa, valued at $550,000, more or less; subject to a mortgage of $348,000. She earns about $106,000 per year in her job with the Canadian Armed Forces.
[58] The Applicant’s sister, Ms. Simeu is willing to pledge $8,000, which is 80% of her $10,000 personal savings. She earns about $12,000 per year from her present part time employment at a fast-food restaurant
[59] The Applicant argues that this new release plan is more strict than his original release plan considered by the justice of the peace. That is because he will have less opportunity to leave his surety’s home. Rather than being allowed to leave his surety’s home for any reasons provided that he is with his surety, he would be required to remain at his mother’s residence at all times except for attendance at court or his counsel’s office. That stricter limitation would, he argues, reduce the risk of re-offence.
[60] The Applicant’s plan also includes the involvement of his mother and sister rather than his cousins. He adds that he is even more likely to obey any release order under this plan because of their involvement than he was regarding his earlier bail plan. He would not wish to disappoint his mother and sister or place them in a position where they would lose their deposits.
[61] The Crown argues that this is essentially the same plan that was rejected by the justice of the peace. It submits that the Applicant cannot be believed when he claims to be willing to obey any conditions for his release. It points out that one of the Applicant’s two proposed sureties before the justice of the peace, Temdemno, was charged as a co-accused in his human trafficking scheme. As the Crown puts it,
If the Justice of the Peace had released him, Mr. Simeu would now be supervised in the community by someone Mr. Simeu had coached in the commodification of the sexual services of women. His proposed surety at the bail hearing is now his co-accused human trafficker.
Evidence of the Applicant
[62] The Applicant’s affidavit in support of this application and his viva voce evidence are inconsistent in a number of ways. His evidence is also contradicted in some significant ways by the evidence of his mother and sister. Taken together, the evidence reveal the Applicant’s lack of candour with the court.
[63] In his affidavit, the Applicant stated that after he finished his high school education, he moved to France and lived with an uncle. But he had to redo a year of schooling because of the different educational systems. When he returned from France he had to support himself because his mother was required to move to Nova Scotia for work. As a result, when the Applicant returned from France, he had to support myself while in school. It was around that time that his criminal record began. He explains “I was young and facing difficult financial circumstances. I acknowledge I made poor choices.” After his release from custody in 2018, he moved to Ontario to “start fresh”.
[64] Not specifically mentioned in his affidavit are the facts that he has garnered a further criminal record, in addition to numerous further charges since his move to Ontario.
[65] In his affidavit, the Applicant admits that he never “shared the full extent of [his] record with [his] family”. He deposed that he withheld this information, partly because he was able to easily obtain bail in Quebec, partly to ensure that he did not disappoint his religious mother and partly because it was embarrassing. Further, as stated above, he has now had time to reflect on the actions that led to his present incarceration. This is the longest he has been in jail. His stretch, during many COVID lockdowns, has been harsh, far more so than his previous periods of incarceration. He does not wish to return to jail. Therefore, he finally decided to open up to his mother and sister. He recognizes the sacrifice they are offering to make for him and would obey them.
Applicant’s Cross-Examination
[66] During cross-examination, the Applicant revealed information that was omitted in his affidavit or contradicted it. He did not include in his affidavit, but admitted in cross-examination that he had been having trouble in high school because he was hanging out with the wrong people and did not listen to his mother. As a result, Ms. Modjo sent him to boarding school to offer him greater supervision. When that did not work because he kept getting into trouble and had behavioural difficulties, she sent him to France to be “grounded” with his family there. Before he left, his mother told him to stop whatever behaviour he was doing. Nonetheless, he returned early to Canada, against the wishes of his mother and the uncle with whom he had been living in France.
[67] When the Applicant returned from France, he lived in Montreal with his sister in their old apartment. Their mother covered the rent for that apartment for a year or two, while she worked in Nova Scotia. But, he testified, he had to pay for all of his other expenses (a claim contradicted by his mother and sister when they testified before me).
[68] In his affidavit, the Applicant stated that, as part of his plan, he hopes to be able to take care of his son (described as “C” in these reasons) during his house arrest. He says that C’s mother, who resides in Guyana, would like the child to live in Canada.
[69] C has intermittently lived with Ms. Modjo, including a month over Christmas 2020/21. In cross-examination, the Applicant stated that Ms. Modjo told him that he should stay with her and C for the month the child was in her care over Christmas 2020-21. But contrary to her wishes, he only stayed for a week, leaving the child with her. He testified that he wanted to find work in Ontario because he was unemployed. However, he has provided no evidence of having obtained any employment in Ontario between his return to his home and his arrest on the charges he faced while before J.P. Curtis. Rather, he incurred the human trafficking and other charges related to C.M. during this time period.
[70] While the Applicant stated that he had shared some information about his previous arrests with his mother, he did not tell her the full extent of his crimes. He did not disclose his convictions for fraud and assault. He testified that he never wanted her involved in his criminal history because he did not wish to add to her stress. She knew that he was in jail in Montreal but did not visit him there. He did not tell either his mother or sister about the fraud conviction that resulted in his conditional sentence in March 2021 but they now know.
[71] The Applicant testified that neither his mother nor his sister have sent him any money for his canteen in jail. However, he has received money from Nastacia Morris, a woman who works in the sex trade. His evidence regarding Ms. Morris was evasive. He claimed in cross-examination that he did not know how much she paid for him. She appears to have been the only friend or family to have visited him in jail. But he cannot even say for sure how often Ms. Morris did so; it was more than five, but he cannot say whether it was more than ten.
[72] While the Applicant testified that he spent a year in jail in Montreal, he conceded that his term of incarceration did not change his behaviour. But the time that he has spent in custody in Ontario has been much harder. He stated in his affidavit that he moved to Ontario to be away from the people he was associating with in Quebec. But he received another conviction for fraud (as well as the conviction for obtaining sexual services for consideration by Harris J.) after coming to this province.
Evidence of Michelle Modjo
[73] Ms. Modjo was born in Cameroon but immigrated to Canada from France as a single mother of three children. Those children are the Applicant, Ms. Simeu and a son, Denis. Ms. Modjo had to raise her three children on her own. She is presently a logistical officer with Canadian Armed Forces, specializing in finances.
[74] From her evidence and despite her best efforts, Ms. Modjo had little control over the Applicant as he grew up. That is why he was sent to private school. He was neglecting his studies, hanging out with the wrong people, skipping school, and staying out late. It is also why he was subsequently sent to France. He was only doing his homework when she was around. Despite the fact that boarding school cost her extra money, he still did not listen to her when she told him not to miss school.
[75] Ms. Modjo last lived with the Applicant in 2009-10, before he went to France. He returned from France when he turned 18, against the wishes of herself and her brother. When the Applicant returned, he originally lived in her Montreal home, where she paid the rent. But at a time she was unable to recall, he moved out to live with friends. She did not know where he went to live. He later told her that he had gone to live with the mother of his (now 7-year-old) child. She then reconnected with her son when he introduced her to his son, C, about five years ago, in 2017-18.
[76] Ms. Modjo is willing to comply with all proposed terms of bail in order to set her son in the right direction. Between Ms. Simeu and herself, the Applicant will never be left alone. Ms. Modjo spoke to some lawyers to understand what being a surety means. Her son will not be able to come to her home and do as he pleases. If she finds a breach of his conditions, she will call the police.
[77] Ms. Modjo was provided with a full copy of her son’s criminal record just a few days before she testified. When asked whether she believed that her son would follow the conditions proposed for bail, she indicated little optimism, pointing out his previous failures to follow court conditions. But she opined that her commitment to the proposed terms will ensure compliance. Her optimism is based on her belief that what has occurred to date is unacceptable and the fact that she and her daughter will both be involved in supervising the Applicant.
[78] Ms. Modjo last saw her son in person over the Christmas 2020/21 holidays. He came to her home for a week. She wanted him to stay for the entire month that C was with her, but he did not comply. He stated that he had to return to Ontario to seek employment. He was to return in March 2021. But she did not hear from him until his lawyer, Marco Forte, contacted her to assist with this application in October 2021. She had yet to visit him in prison at the time that she gave her evidence to this court.
[79] Prior to Christmas 2020/21, she last saw her son in August 2020, around the time of C’s birthday, when the child was in her care. She told him to stay with her and his son every time that she had the child in her care. She told him that it was a good idea to live with her and his son. But the Applicant did not comply with her request.
[80] The Applicant is in the habit of not responding to Ms. Modjo and losing contact with her for 6-7 months at a time. He would sometimes send text messages but failed to do so between March 2021 and when she first heard from his lawyer in October 2021. The Applicant’s lack of contact with his mother led her to request that her children demonstrate that the Applicant was still alright, through social media screen grabs.
Evidence of Muriel Simeu
[81] Muriel Simeu resides in Montreal, where she works part time in a fast-food restaurant. She is the Applicant’s older sister. She is willing to relocate from Montreal to Ottawa to live with her mother and ensure the Applicant is supervised 24/7.
[82] Ms. Simeu testified that when the Applicant returned from France, she and her brother, Denis, lived in their mother’s home. Her mother paid for the rent, electricity and food. The Applicant had a place to live. He would sometimes stay at home and other times outside the home. But after a certain time, the Applicant would essentially reside at friends’ place despite direction from her and their mother. She did not know who he was staying with or meeting.
[83] As the older sister, Ms. Simeu asked the Applicant what he was up to. He just said that he was meeting friends that he knew. She was anxious about him being with those people. She told him to stay at home. The only thing she did when the Applicant did not listen to her was report him to her mother. She thought at that point he was getting into trouble.
[84] Ms. Simeu has not spoken one-on-one with the Applicant since December 2020. They did share a telephone call, along with the Applicant’s lawyer, from jail, in preparation for this application. She has never visited him in jail.
Why Detention is Warranted
[85] Because the offences with which the Applicant is charged occurred when he was already on release, he faces a reverse onus of showing that detention is not necessary on each of the three grounds.
Primary Ground
[86] The Crown argues, although not strenuously, that Mr. Simeu should be detained on the primary ground. It points to his Cameroonian citizenship (which may be expired), his family in France, and the fact that he is now facing the most serious charges of his life. It argues that it has a strong case and that the Applicant faces significant jail time. He would have every reason to abscond.
[87] However, as the defence points out, the Applicant has faced numerous charges but no convictions for a failure to appear in court. He would be subject to bail terms that would include an ankle bracelet.
[88] I recognize that this is a reverse onus situation, where the Applicant must convince the court that the primary ground has not been made out. But in considering all of the evidence, particularly the Applicant’s history of court attendance (as opposed to obedience of court orders). I would not order his detention on the primary ground.
Secondary Ground
[89] The test that applies on the secondary ground is whether if released on bail, there is a substantive likelihood that the accused would reoffend.
[90] In R. v. Manasseri, 2017 ONCA 226, [2017] OJ No 1460, at paras. 86-88, Watt J.A. pointed to three relevant factors in the determination of the applicability of the secondary ground to an accused seeking bail:
86 First, to determine whether the secondary ground controls the release/detention decision, requires a consideration of all the circumstances. A relevant circumstance, neither exclusive, nor dispositive, is the substantial likelihood of recidivistic conduct ("commit a criminal offence") or an interference with the administration of justice.
87 Second, in connection with the specified circumstances encompassed by the clause "including any substantial likelihood that the accused will, if released from custody, commit...", the italicized words refer to a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely.
88 Third, where, as here, the onus of showing cause for release falls on an accused, that accused must demonstrate not only that his or her detention is not necessary for the protection of the public, but also that it is not necessary for the safety of the public.
[91] The relationship with the accused and the proposed surety is an issue central to the determination of the secondary ground. As Gauthier J. wrote in R. v. Mott, [2013] OJ No 1631, at para. 36:
36 In addition to the surety's character, the nature of the relationship between the surety and the accused is directly related to the suitability of the surety. At page 198 of The Law of Bail in Canada, the author says this:
On a view of the surety relationship that contemplates any degree of supervision of the accused, it is crucial to know whether the relationship is one which will realistically permit the infusion of these obligations and their potential enforcement. Thus, it is important to inquire beyond the mere formalities of the surety's relationship with the accused and determine its nature. Factors such as how long the surety has known the accused, whether they are related, how frequently they see each other and how close they live to one another should give some indication of how well a surety can be expected to supervise an accused and take action if the accused fails to live up to the conditions of his or her release.
37 As the passage above suggests, the Justice of the Peace's observations and analysis of a proposed surety's suitability are often of central importance to the release process. A particular surety, who is shown to know the accused well and who the Court is satisfied will be able to provide the supervision and consequences necessary for the surety relationship to function, may make the difference between incarceration and release, by satisfying one or all of the grounds pursuant to s. 515(10) of the Criminal Code.
[92] I am not satisfied that, if the Applicant is released, there is no likelihood that he will reoffend. To the contrary, I find that it is substantially likely that if released, the Applicant will commit a further offence. I say this for the following reasons:
The Applicant has a long criminal record.
A number of his convictions are for breaches of court orders, such as release or probation orders.
I find the Applicant’s evidence neither credible nor reliable. In particular, I do not accept his claims that he has changed, will obey his mother and sister, and will obey any release order That is particularly the case regarding his protestations that he has learned his lesson and will be amendable to the supervision of his proposed sureties. I say this because of:
i. the inconsistencies between his affidavit and cross-examination evidence (for example, regarding the circumstances around his return from France);
ii. his pattern of withholding information, both from his family and the court;
iii. the disparity between his evidence and that of his mother and sister (whom I find to be credible if somewhat naïve in regard to the Applicant);
iv. his long history of committing crimes of dishonesty.
Further impugning the Applicant’s credibility is the fact that he previously proposed his cousin as a surety. That individual now stands co-accused with him of the crime of human trafficking in respect of N.C. The Crown asserts that the evidence of the cousin’s involvement comes from the data extracted from the Applicant’s own phone.
The Applicant is, as stated above, currently receiving money in his prison canteen from Ms. Morris. The Applicant is charged with having previously contacted her when he was forbidden from contacting anyone on the LeoList website. The Crown asserts Ms. Morris advertises on that site.
Most importantly, I do not find that the Applicant will be amenable to the control of his mother and sister, even under the strict bail terms that he has offered to the court. He has never been open with either of them, holding them at arm’s length. While he speaks of his respect for his mother and desire not to put her in a bad position if he is released, he appears to have never listened to her since reaching adolescence. That includes the reasons he had to go to private school, his refusal to remain in France, his decision to move out of the home she was renting for her children, and even his refusal to join her to care for his own son. Similarly, I do not see him as having ever listened to his sister.
These concerns are heightened when I consider that the Applicant stands accused of indirectly contacting N.S. while in custody, when forbidden by court order to do just that. If he can do so when in custody, I rhetorically ask what terms he could disobey when released into the care of his mother and sister, whom I do not believe he is willing to fully obey. Further, Ms. Modjo works full time and Ms. Simeu would have to find work. They cannot sit beside him 24/7.
I note that the Applicant says that he moved to Ontario to get away from the negative influences he experienced in Quebec. Yet he accumulated two convictions since he moved here and is now charged with a number of other, more serious offences.
[93] The defence points to the strict house “arrest” terms that the Applicant proposes as some assurance of his reduced risk to reoffend. He will not be able to go anywhere without being monitored, whether by his mother or sister, or by a GPS ankle bracelet. But many of the serious crimes that he is accused of committing can be committed while sitting in the privacy of his own bedroom, and through the surreptitious use of a telephone or the internet. That is particularly the case with the “Gwapster” system, described by the Crown as “an automated software application … to streamline his work in the sex trade.” That system was found on the phone seized from his person at his arrest. With the Applicant’s history of fraud and deceit, coupled with the sophistication of the system found on his phone, I do not trust that his proposed sureties will be able to effectively monitor his use of a cell phone or the internet.
[94] At this point I wish to say a few words about the proposed sureties, the Applicant’s mother and sister. They are not the problem with his plan. They are fine, honest and well-meaning people, who have the Applicant’s welfare at heart. They wish to assist while also keeping their word to the court. But they simply do not have the type of relationship with the Applicant that makes the court believe that he will accept their control while he is on judicial interim release. He would not even listen to his mother to stay with her for the full holiday when his seven-year-old son was in her care. Yet he claims to wish to live with that child when released.
[95] In light of all of the evidence, I find that there is good reason to believe that the Applicant will continue with the behaviour that could harm the safety of the public if he were released.
Tertiary Ground
[96] The tertiary ground for detention is whether “the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances”: CC s. 515(10)(c). That provision offers four, non-exclusive factors in the consideration for the tertiary ground. They are:
(i) the apparent strength of the prosecution’s case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
[97] In R. v. Manasseri, Watt J.A. wrote the following about the tertiary ground:
89 The tertiary ground holds that detention is justified if it is necessary to maintain confidence in the administration of justice. Several brief observations about the content and operation of this ground are germane.
90 First, as in the case of the secondary ground, whether detention is or is not necessary on this ground is to be determined by a consideration of all the circumstances, but in particular, the four factors Parliament has marked out for specific consideration in s. 515(10)(c): R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at para. 40; R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 35.
91 Second, as in the case of the secondary ground, the use of the term "including" in relation to the listed factors negates any suggestion that the listed factors are dispositive of an order of detention on the tertiary ground: St-Cloud, at para. 68.
92 Third, to determine whether detention is justified on the tertiary ground, a judge is to make his or her appraisal objectively, through the lens of the four factors Parliament has specified, and with particular focus on those factors: Hall, at para. 41; St-Cloud, at para. 35.
93 Fourth, detention can only be justified on the tertiary ground if the judge, having considered the listed factors and related circumstances, is satisfied that a reasonable member of the community would be satisfied that denial of release is necessary to maintain confidence in the administration of justice: Hall, at para. 41; St-Cloud, at para. 35.
94 Fifth, the term "public" in s. 515(10)(c) refers to reasonable members of the public who are properly informed about the philosophy of the legislative provisions; Charter values; and the actual circumstances of the case: Hall, at para. 41; St-Cloud, at para. 74.
95 A "reasonable member of the public" is familiar with the basics of the rule of law in Canada and with the fundamental values of our criminal law, including those protected by the Charter. He or she knows the importance of the presumption of innocence and the right to liberty and that these are fundamental rights guaranteed by our Constitution. The reasonable member of the public also expects, perhaps even more so now, that anyone charged with a crime is entitled to be tried for it within a reasonable time: St-Cloud, at para. 79.
96 A final point before turning to the specific factors requiring consideration under s. 515(10)(c). In Canada, pre-trial release of those charged with crime is the cardinal rule and detention, the exception: St-Cloud, at para. 70; R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711, at p. 728. That said, sometimes, as here, the onus of demonstrating release is shifted to an accused who is required to demonstrate that detention is not necessary on the primary, secondary or tertiary ground.
Strength of Crown’s Case
[98] In Manaserri at para. 97, Watt J. stated that consideration of the apparent strength of the Crown’s case “requires consideration of the quality, and to some extent, the quantity of the evidence available to the Crown to prove its case. This assessment must also take cognizance of the defence advanced by the accused: St-Cloud, at paras. 58-59”.
[99] Here, the Applicant claims that the Crown’s case is weak in most aspects. He argues that the charges against him are based on the word of two complainants whose credibility is suspect. The Applicant denies the sexual assault and human trafficking charges and argues that the Crown has a weak case in respect of those charges. Regarding the posting of ads for sexual services and receiving money for them, he concedes that the Crown’s case is stronger. But he argues that not every posting of ads in return for renumeration amounts to human trafficking. He denies exercising any control, direction or influence over the complainants, any exploitation or facilitation of their exploitation or any sexual assault of the complainants.
[100] The Applicant points to the difficulty of proving sex-related offences, both factually and legally. He says that proof of the most serious charges are based in large measure on the credibility and reliability of the complainants. He emphasized that they were “sex workers”: the reasons that they enter into that line of work and the details of their relationships with their alleged human trafficker can be complex. He argues that both complainants are women who had participated in sex work before they became involved with the Applicant and that proving compulsion will be difficult. He also speaks to N.C’s honesty as he says that she participated in “scams” on her “johns” and that her narrative of events contains contradictions.
[101] With regard to C.R., the Applicant points out that she was pursued by the police, only after they reviewed his phone following his arrest. He speaks to her willingness to participate in the same scheme mentioned by N.C., to scam “johns” after taking their money.
[102] When considering the Applicant’s arguments regarding the credibility of the two complainants, I have to warn myself to be careful of not entering into reasoning that is akin to “twin myth”; i.e., that sex workers are inherently untrustworthy witnesses or that they consent, by reason of their manner of work, to sexual exploitation. I also note that consent is not a defence to human trafficking, procuring, advertising sexual services, receiving a material benefit from human trafficking or procuring. I also observe that to adduce evidence that these women engaged in sex work on occasions other than those set out in the Indictment/Information, the Applicant would have to meet conditions for admissibility of such evidence under s.276 of the Criminal Code.
[103] Further and in response to the Applicant’s arguments regarding the complainants’ credibility, the Crown fairly argues that the complainants:
… are exactly the type of vulnerable people, working on the margins of society, that human traffickers prey on. They have not shied away or tried to hide from the fact they previously worked in the sex trade. It also irrelevant to whether Mr. Simeu benefitted from their sexual services or that later through manipulation and violence he turned the relationship into one of exploitation.
[104] Further, much of the evidence that the Crown will rely upon at trial was found following a forensic examination of the phone seized from the Applicant’s person at the time of his arrest. That evidence includes extensive text message exchanges with the complainants, their purported clients and evidence of the Gwapster programme to facilitate the commission of these offences.
[105] The Crown points, for example to this text exchange between the Applicant and C.R., regarding what the latter should tell a potential recruit about the payment she should expect. C.R. wrote: “I just have to tell her how it goes cause I obviously have to tell her about u taking half?” The Applicant responded “But dont [sic] mention me taking half.” The point appears to be that a potential sex worker under the Applicant’s auspices should be kept ignorant of the share of her proceeds he intended to retain.
[106] Further, regarding N.C., the Crown’s evidence is that before she came forward to the police, the hotel room she used to sell her sexual services was rented by the Applicant. Further, the Crown states that it found that she was not the person responding to the contact number on her ads for sexual services. Someone else did so, even when she was in the presence of the police and they could observe that she was not using her phone.
[107] Having regard to all of the evidence, I am not prepared to find that the case against the Applicant is “weak”. To the contrary, it appears quite strong, particularly in light of the evidence found on the Applicant’s phone.
Gravity of the Offence
[108] As Watt J.A. pointed out in Manasseri, citing R. v. St. Cloud at para. 60:” [t]he second factor -- the gravity of the offence -- is measured objectively on the basis of the maximum and any minimum sentence permitted or required on conviction”.
[109] Here, the crimes of human trafficking (s. 279.01) and procuring (s. 286.3) each attract a maximum sentence of 14 years. That is a substantial sentence; one of the longest available under the Criminal Code. No minimum sentence is presently available for those crimes.
[110] Regarding the gravity of the offence, there is a no doubt that the crime of human trafficking denotes “…the exploitation, degradation and subordination of women. At its most basic level, it is a form of slavery…” R. v. Lopez, [2018] OJ No 4749, at para. 52.
The circumstances surrounding the commission of the offence, including whether a firearm was used
[111] At para. 99 of Manaserri, Watt J.A. describes this factor as follows:
99 The third factor -- the circumstances surrounding the commission of the offence -- involves consideration of the nature of the offence, as for example its violent, heinous or hateful nature; its context, for example domestic violence or gang activity; the involvement of others; the extent of the accused's participation; and the vulnerability of the victim: St-Cloud, at para. 61. The personal circumstances of the accused may also be relevant under the third factor including, in some cases, that the accused's trial will not be held until a much later date: St-Cloud, at para. 71.
[112] Here, the circumstances surrounding the alleged events do not involve a firearm but they do involve serious allegations of physical and sexual violence, including forced anal intercourse and sexual assault. They also include the allegation of a very sophisticated scheme to exploit each complainant by controlling, directing or influencing her to provide sexual services for money using a computerized telephonic application developed by the Applicant.
Potentially Lengthy Term of Imprisonment
[113] As set out above, the maximum sentences that the Applicant potentially faces are significant. But the Applicant asserts that even if convicted of the offences that he faces, he is likely in a time-served position because of the period of his time spent in pre-trial incarceration at the requisite 1.5:1 R. v. Summers 2014 SCC 26 credit, and additional R. v. Duncan, 2016 ONCA 754 credit for the periods of lockdown during the pandemic.
[114] The Crown states that the Applicant is not close to a time-served situation. That is because he is facing two sets of very serious charges, his criminal record, the fact that his time served to date is only about three months – two for the sentence ordered by Harris J. and approximately one further month for the collapse of his conditional sentence. That leaves him at 14 months, increased to 21 months. The Crown did not calculate any further Duncan discount for lockdowns or similar factors.
[115] The Crown has cited three cases where sentences for human trafficking have far exceeded the time served thus far by the Applicant:
• R v Jordan, 2019 ONCA 607: where a nine-year global sentence minus 1.5 years credit for pre-trial custody was imposed for human trafficking, procuring and intimidation of a justice system participant.
• R v A.E., 2018 ONSC 471 at para. 65, where Boswell J. stated: “the usual range appears now to be roughly four to eight years, again depending on the aggravating and mitigating circumstances present”.
• R v T.T., 2022 ONSC 722 at para 45., where a net sentence of eight years, including a reduction of one year for jail conditions was imposed for a number of offences similar to those facing the Applicant, but also charges, including human trafficking, making and possessing child pornography. The sentence was imposed for an accused with a far less significant criminal record than the Applicant.
[116] Thus, if the Applicant is convicted of either of the two sets of charges he is facing there is a high likelihood that he will not be in a time-served situation.
Conclusion on Tertiary Ground
[117] In sum, the Applicant fails on the tertiary ground. In light of the circumstances cited above, the public’s confidence in the administration of justice would be eroded if the Applicant were released.
Conclusion
[118] For the reasons cited above, I dismiss this application.
“Marvin Kurz J.”
Electronic signature of Justice Marvin Kurz
Released: October 21, 2022
COURT FILE NO.: JJ 4/22
DATE: 2022-10-21
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
Loic Aruel SIMEU, Anthony BADIBANGA-MUKENDI, Kevin RODRIGUEZ-HIDALGO and Joseph Dominique TEMDEMNO NKAMGANG
REASONS FOR decision
Kurz J.
Released: October 21, 2022
[^1]: 2017 SCC 27, [2017] S.C.J. No. 27