) ) HIS MAJESTY THE KING – v. –, 2023 ONSC 1111

CITATION: R. v. Downey, 2023 ONSC 1111 COURT FILE NO.: 19-1941 DATE: 2023/02/14 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HIS MAJESTY THE KING – and – Juteah Downey Accused ) ) ) ) ) ) ) ) Siobhain Wetscher, Kerry McVey, and JulienLalonde for the Crown Robert Carew, for Mr. Downey ) ) HEARD: February 3, 6, 9, 10, 2023-oraldecision given February 14, 2023 ruling on revocation of bail SOMJI J Overview [1] The accused Juteah Downey was convicted of 12 counts of human trafficking related offences on January 31, 2023 inrelation to four women ages 19 to 25 between the period of January 2018 and April 2019.

I also found the accused materially benefittedfrom the human trafficking earning, at minimum, $119,000 in 2018 alone from the sex work performed by the complainants. The factualcircumstances of the accused’s exploitative behaviour, including the recruitment of the women into his operation, and the reasons for mydecision on all counts is set out in R v Downey, 2023 ONSC 767. [2] The Crown applies to revoke his bail on secondary and tertiary grounds pursuant to s. 523 of the Criminal Code.

The Crownrelies on the accused’s prior conviction for human trafficking in 2014, his convictions for breaching court orders both historically andduring the period awaiting completion of this trial, as well as new breaches for which he has yet to be charged and which have not beenpreviously considered during any judicial interim release proceedings. [3] Defence argues that the accused has demonstrated that he is able to comply with release conditions since his arrest in April2019. Defence argues the evidence proffered by the Crown on the new breaches is not sufficiently reliable to substantiate a breach.

Theyargue that his alleged new breaches from 2022 and his convictions for human trafficking related offences following trial are notsufficient to warrant revocation of bail and detention. [4] The revocation of bail was raised following my judgment on January 31, 2023. Counsel was not able to proceed to a bailhearing immediately because they had not yet had an opportunity to compete the review of the disclosure regarding new allegations ofbreaches. The matter was adjourned to February 3, 2023. At that time, I heard submissions from both counsel on their respectivepositions.

However, counsel for the accused requested additional time to review disclosure related to the new alleged breaches and anopportunity to contact the owner of Golden BBQ Grill (“GB Grill”) where Mr. Downey states he was employed. On February 9, 2023,defence called civilian Stacie Lafrance as a witness. Further submissions were made on February 10, 2023. [5] This decision addresses whether the accused’s bail should be revoked on the basis of secondary and tertiary grounds.

Law on revocation of bail following conviction [6] Where a person has been convicted of a criminal offence, a person’s bail will continue until the imposition of a sentenceunless the court orders otherwise: s. 523(1)(

b) Criminal Code. If, however, the Crown shows cause that the release order should bevacated or conditions altered, the judge may vacate any previous order and order the accused to be detained or released on otherconditions. To revoke bail following a conviction, the Crown must show cause why detention is necessary under the primary, secondary,or tertiary grounds enumerated under s. 515(10) of the Code: R v Green, (ONSC) at para 11. Other than for s. 469

offences, the presumption is that existing bail orders will remain in force until the imposition of sentence unless the Crown shows cause: Green at para 11 citing; see also R v Tsega , 2021 ONSC 1139 at para 38 . [ 7 ] In assessing cause following conviction, the trial judge must keep in mind that the accused who has been convicted was previously deemed worthy of judicial interim release: Green at para 12 .

The trial judge must also consider that detention can make it difficult for the accused to prepare for sentencing by limiting the person’s ability to access materials in support of sentencing such as reference letters. Hence, where the Crown has identified legitimate concerns of continued release and seeks revocation, the trial judge must first consider whether the concerns can be met by variation or addition of release terms: Green at para 13 .

Issue 1: Is the accused’s detention warranted on secondary grounds? [ 8 ] The secondary ground addresses circumstances where the accused’s continued detent i on is necessary for the protection or safety of the public, having regard to all the circumstances, including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice: s. 515(10)(

b) Code . [ 9 ] When assessing the secondary grounds, I must consider the nature of the offences, the applicant’s prior criminal record, and his ability to comply with court orders. With these considerations in mind, I must determine whether the proposed release plan can adequately ensure there is no substantial likelihood that the accused will re-offend if released. Accused’s criminal record [ 10 ] The accused has a prior criminal record with 14 convictions. One conviction is for a human trafficking related offence involving a 14-year old.

The charge arose following a probe by the Peel Regional Police of six men and two women recruiting young women to engage in sex work in areas around Ottawa and Toronto. On January 6, 2014, the accused was convicted of aiding the complainant in engaging in prostitution for the purpose of gain following a judge and jury trial. He was sentenced to 2 ½ years jail. The Ontario Court of Appeal dismissed the accused’s appeal: R v Downey, 2016 ONCA 19 .

History of breaches before arrest April 2019 [ 11 ] The accused has nine prior convictions for breaches of court orders, six of which arose before April 2019 when he was arrested on the convictions presently before the court. [ 12 ] One set of breaches arose while the accused was on bail pending appeal for the 2014 human trafficking conviction. On November 21, 2014, the accused was found by the police with a young female at the McDonalds on Rideau Street in downtown Ottawa. The officer determined that the accused was in breach of his residency condition at the time.

The accused provided the arresting officer with a false date of birth and explained that he was on his way home from Algonquin College which was 15 kms away.

The police later learned that the accused had also failed to update the Peel police with his employment or school information, failed to notify the police of enrollment in classes, and to file a copy of his recognizance with the Brampton Court. [ 13 ] However, the most egregious aspect of the breaches was that at the time of the arrest, the police located two iPhones and a laptop computer that was open to Back Pages Ottawa, a website used for advertising sex work. The police also found various entertainment cards bearing the name “Sugar Babies Club”, and 4 SD memory cards.

He was subsequently convicted of two breaches in April 2015 and sentenced to 60 days jail. [ 14 ] On January 11, 2016, the Ontario Court of Appeal rendered its decision. The accused would have commenced a 2 ½ year penitentiary sentence at this time. Not long after the completion of his sentence and his release from jail, the accused commenced his operations relating to the human trafficking charges for which I have now found him guilty. The period of the Indictment on the current convictions covers February 15, 2018, to April 18, 2019.

Breaches for which the accused has been convicted since his arrest April 2019 [ 15 ] The accused was arrested in April 2019. Following a contested show cause hearing, he was released on July 9, 2019, on house arrest. By July 21, 2019, he was arrested on two breach charges: one, for contact with complainant M.M.; and two, for not being in the presence of his surety. As a consequence of these charges, he was detained. Subsequently, a third breach was issued for the accused having contact with his mother Margo Downey who was facing related criminal charges at the time. These breach charges were ultimately stayed.

There was an administrative error, and the witnesses were not subpoenaed for trial. [ 16 ] On September 4, 2020, following a bail review, the accused was released under a new plan with a new surety. The presiding judge found that the breach charges had influenced the Justice of the Peace’s decision to detain the accused. Those charges were no longer before the court, and there was no basis for continued detention on secondary grounds. The presiding judge released Mr.

Downey on strict conditions which continued to include no contact with the complainants and no access to devices that are connected to the internet or to digital networks. [ 17 ] Within several months, on April 12, 2020, the accused was charged with contacting another complainant M.B.M. through social media. M.B.M. received a message on Facebook Messenger that read “Hello” and was sent from an account that included a profile picture of the accused with the name “Live DTS Downey”. M.B.M. did not report the offence until July 2020 because the accused’s email had gone to another spam like folder.

The accused pled guilty to that count on July 9, 2020 and received 8 days jail in addition to 14-days of presentence custody.

[ 18 ] The accused was released following a contested bail hearing, but the release plan maintained strict conditions which included: ➢ remain in your residence except for medical emergencies, for travel to court, or for meetings with your counsel; ➢ to be in the presence of a surety; and ➢ not to possess or use any device that provides access to the internet including but not limited to mobile telephone, computer, pager, and tablet. [ 19 ] On December 18, 2020, the police attended the accused’s residence and were met by the accused’s mother Margo Downey. She advised the accused was meeting with his counsel.

The police contacted his counsel who indicated he was out of town and not meeting with the accused. [ 20 ] On January 12, 2021, the police attended the accused’s residence again. A woman stuck her head out of the residence and informed the police that the accused was not home [ 21 ] On January 14, 2021, the police checked several Instagram pages controlled by the accused. They identified an account entitled “northprestons” which had a post uploaded of the accused talking and showing birthday gifts that he had received from his family.

A second video uploaded on the same date was entitled “WYNE SLOW-NP DOWNEY” and it depicted a female dancing in underwear and a bra top as well as the accused dancing and grabbing his crotch area. [ 22 ] During this period, the police made checks on whether the accused was in the presence of his surety Devon Dunn. The police attended Mr. Dunn’s address in Nestleton, Ontario and a female stated Mr. Dunn was last at this address on February 6 th . The police then spoke to Mr. Dunn by telephone on February 19, 2021. He informed them that he lives in Ottawa. However, when pressed, Mr.

Dunn could not tell them what the weather was like in Ottawa or what his address was in Ottawa. [ 23 ] The accused was subsequently charged with four breaches. He pled guilty to two breaches on April 26, 2021, and was granted a suspended sentence in addition to the 90 days of pre-sentence custody. [ 24 ] The Crown consented to his release with a new surety with conditions of house arrest and electronic monitoring.

Over time, the Crown consented to changing the surety to his mother Margo Downey whose criminal charges had been stayed, eliminating electronic monitoring, and removing the conditions of house arrest, so that the accused could be permitted to work. However, as discussed below, the accused continued to remain on strict release conditions with respect to his access to devices connecting him to the internet or a digital network as well as the operation of his businesses.

Alleged and uncharged breaches since his arrest [ 25 ] The Crown alleges that during 2021 and 2022, the accused breached his bail conditions by one, failing to be at his residence as per his curfew on April 6, 2022, and two, accessing the internet and recruiting entertainers for the production of a film. The police have not yet laid charges in relation to these alleged breaches. [ 26 ] Between September 2021 and throughout 2022, the accused was on a release order with 16 conditions. The conditions relevant to the uncharged breaches are as follows: 2. Reside with surety at 12 Connelly Place, Ottawa, ON 4.

Remain in your residence daily between the hours of 9:00 p.m. and 6:00 a.m. EXCEPT ➢ for medical emergencies involving you or a member of your immediate family (spouse, child, parent, sibling) ➢ for purposes of travelling directly to, from and while at court appearances, or meeting with your lawyer, or for purposes of complying with this or any other court Order ➢ to travel directly to, from, and while working at Golden BBQ Grill (1060 St. Laurent Boulevard) as a cashier and cook ➢ when you are in the presence of your lawyer 11.

You are not to possess or use (directly or indirectly) any device that provides access to the internet or other digital network including but not limited to: mobile telephone, tablet, computer, pager EXCEPT for the purpose of attending and participating in court proceedings or except in the presence of your surety every Friday for the purpose of reporting to Det. Sarah Standing.

You are not to directly or indirectly access any online services, websites, social media platforms, or apps known to be used for purposes related to exotic dancing or the sex trade, this includes any websites, social media platforms or apps that recruit or supply models. 12. All electronic devices of Margo Downey are to be password protected. 14. You shall present yourself at the door of the residence within 5 minutes of a request made by the Ottawa Police at any time when you are required to be at your residence. 15.

You are not to engage in any sex trade work or any business that recruits models or supplies models or entertainers. [ 27 ] On April 6, 2022, the police attended the accused’s home for a compliance check. Margo Downey reported that the accused was at work. The police went to check his workplace GB Grill and found he was not there. The police spoke to a person by the name of

“John” who stated, upon reviewing a photo of Mr. Downey, that no such person by that name or that appearance worked for the restaurant. [ 28 ] Defence argues the uncharged conduct of April 6, 2022, should not be relied on. They point to the fact that there have been several spot-checks where the accused was at home when the police arrived and furthermore, that there is evidence that accused worked at GB Grill.

Defence argues that the accused could simply have been in transit on April 6, 2022, from work to home. [ 29 ] In support of its position, defence relies on testimony and photos taken by a witness Stacie Lafrance. Ms. Lafrance was employed by Mr. Downey starting in February 2021 in the production of a TV series entitled “The Game Don’t Stop” that he had written about gangs and life (“TV series”). She testified that she and Mr. Downey would often spend time shooting the tv series at GB Grill after he finished work shifts in the kitchen, including in the summer of 2021.

She testified about two photos she had taken of Mr. Downey in the kitchen of GB Grill and one outside sitting with the owner “Mustapha”. She could not date these pictures. Mr. Downey had a cleaning company and she took the photo of him in the GB Grill kitchen cleaning as a promotional ad for his cleaning company. There was also a third photo she took of Mr. Downey standing outside the GB Grill sign which she believes she took in the summer of 2022. [ 30 ] Defence did not call the owner of GB Grill to confirm the period of time for which the accused was working there, his hours and shifts, and whether Mr.

Downey worked on the night of April 6, 2022, which is when he was found to be out of his residence by the police. While one might infer from the few photos taken by Ms. Lafrance that Mr. Downey was associated with GB Grill and its alleged owner “Mustapha”, I am not satisfied based on this evidence alone that Mr. Downey was working at GB Grill on April 6, 2022. Ms. Lafrance could not state when the photos of Mr.

Downey were taken and there is no way of establishing through these undated photos that he was working on April 6, 2022. [ 31 ] While defence argues that the evidence of the officers from April 6, 2022, would not support a conviction, this proceeding is not a trial. The Crown may have to subpoena the restaurant owner and employment records for trial (following a breach charge) to prove its case, but that level of proof is not required for a bail hearing.

I find that the evidence of the two officers is sufficiently credible and trustworthy for the purposes of the bail hearing and is not undermined by undated photos taken by Ms. Lafrance. [ 32 ] On the contrary, as the Crown points out, Ms. Lafrance’s testimony that Mr. Downey worked at GB Grill in the summer of 2021 constitutes a further new possible breach of his release conditions because in the summer of 2021, Mr. Downey’s release conditions did not allow him to be outside of his home for work purposes.

The exception to attend GB Grill for work was only granted by the court in September 2021. [ 33 ] The second uncharged breach relates to an allegation that throughout 2021 and 2022, the accused was recruiting models, actors, and actresses for the production of a film. This evidence stems from two civilian witnesses, Brendan Butt and Scarlett Kelly, and is corroborated in part, by the defence witness Stacie Lafrance. [ 34 ] Mr. Butt reported to the police that the accused recruited him through his company SHDM Productions Instagram account to produce a film about a sex trafficker.

The accused identified himself as Trey or Tremaine Downey. He believed the film was semi- biographical about the accused. The accused wrote portions of the script and Mr. Butt recorded many hours of footage over multiple days in the summer of 2021. By the end of the summer, the accused failed to pay Mr. Butt for his hours of filming and production. [ 35 ] Mr. Butt reported to the police that they filmed in different locations around the city. There was usually a crew of 4 to 6 actors/actresses. He stated that the accused’s mother was also present because he could not drive.

He reported that Margo Downey appeared to finance some of the production and even sent him some e-transfers, but it was Mr. Downey who ran the show, wrote script, and obtained the insurance and permits. The production did not contain anything sexual in nature. Mr. Butt reported that he would not have shot any footage with nudity because he is unionized and not allowed to do so. [ 36 ] Mr. Butt filed with the police copies of his email and text exchanges with Mr. Downey related to the production as well video clips of the production of Mr. Downey’s film. When Mr. Butt confronted the accused about payment, Mr.

Downey sent him an email through his company email shdmfilms@gmail.com to expect a call from a lawyer named Steven Hikinson with the website of the law firm attached. He also sent an email threatening Mr. Butt to a boxing match to resolve the financial dispute. Mr. Butt contacted the police because he felt threatened given that Mr. Downey knew where he lived. [ 37 ] In addition to Mr. Butt, an actress named Scarlett Kelly also filed a complaint to the police because Mr. Downey failed to pay her for her acting services in the production. Ms.

Kelly reported to the police that she saw an advertisement in Kijiji looking for an actress. She followed up. Her first contact was with an agent named “Charlene Lafleur” who wrote to her by email about the job, said it was good pay, and that she would earn $25-30/hour. Charlene then contacted her after a couple days and said the producer was “Tre”. Ms. Kelly was then directed to go to Bel Air Motel in Ottawa. She worked on the accused’s production at three different locations in Ottawa. She worked for the accused on July 11 th , 27 th , 31 st of 2021. [ 38 ] Ms. Kelly reported that she met Mr.

Butt during the film production, but understood the accused, who referred to himself as Trey, was in charge of the production. She communicated with Trey on two phone numbers 647-616-1770 and 819-510-0936, both numbers associated to Mr. Downey. During one conversation, the accused told her this movie will be “big” and that she would be a movie star. She received an e-transfer from “Juteah Downey” for some work payments, but was not compensated for all her hours worked. Consequently she filed a complaint with the Ontario Ministry of Labour (“Ministry”) who, in turn, did an investigation into the matter. Ms.

Kelly also filed emails and text messages between herself and Mr. Downey with the police. [ 39 ] The police showed Ms. Kelly an ad from Kijiji dated December 29, 2022, by Ottawafilmindustry.com and containing a phone number associated with the accused: 343-805-0633. The ad stated as follows: Casting Call in Ottawa Models and actors needed for modelling and acting projects. Having been in business for only 4 years, Our Agency is becoming one of the most successful TV/Film Modeling Agencies in Ottawa. We are currently updating our Modeling and Acting Roster for the Fall and

Winter season. We represent Talent from the age of 18 to 40 plus Company: shdm films Job Type: Full-Time [ 40 ] On the right hand margin, there is reference to the terms “Canadian Content Fund” [ 41 ] Ms. Kelly stated that while this ad was dated much later, it was similar to what she viewed. SHDM was the name of the company and the ad she viewed was also recruiting models and actresses. [ 42 ] The Ministry also provided the police a brief report dated January 7, 2022, about their investigation into violation of labour standards by the accused and his company SHDM flowing from Ms. Kelly’s complaint.

In their report, MOL notes some of the following: ➢ Juteah Preston Downey goes by the names Lord Downey, Tre Downey, and Tremaine Downey ➢ SH-DM Inc is registered to Juteah Downey since March 2002 ➢ Phone numbers associated to the company is 343-805-0653 and is believed to be the accused’s cell number ➢ The company has an Instagram account @shdmproductions ➢ SH-DM operates under the following names: SHDM Films, SHDM Inc., SHDM Productions, Ottawa Film Industry, Ottawa Film Industry Agency, and occasionally “XXXTGDS” ➢ The subject is operating under several aliases used interchangeably and the company itself operates under several operating names, a level of obfuscation rarely associated with legitimate businesses ➢ When the complainant Ms.

Kelly responded to the Kijiji ad, she was corresponding with a Tre Downey who was the producer of the production she was to work for and he agreed to send her bus fare so she could attend the production site; the bus fare came from Juteah Downey indicating that Tre and Juteah are one and the same ➢ Charlene LAFLEURJLM was the casting director of the company and corresponded with the complainant via email during the course of employment and was also involved in

schedule and payments ➢ Margo Downey identified as the subject’s mother sent the complainant an e-transfer of $50 to offset the wages owed ➢ That the Ministry investigator spoke to the Mr. Downey who acknowledged wages were owed but then hung up the phone on the investigator ➢ Mr.

Downey failed to respond to any correspondence and demand for records ➢ The Ministry issued an Order to Pay Wages ➢ The Ministry believes that there are indicators for potential HT (Human Trafficking) through this business’ operations, concerns exacerbated by the subject’s known previous charges ➢ The Ministry will refrain from taking further action with respect to the workplace action until law enforcement has and an opportunity to determine if they will commence their own investigation [ 43 ] Defence counsel argues that the police investigation into the uncharged conduct would not result in a prosecutable breach.

In support of its position, defence counsel called Stacie Lafrance as a witness. Ms. Lafrance testified that she met Mr. Downey at Best Buy while looking at camera equipment. She was later engaged by Mr. Downey to assist in the production of his TV series from February 2021 until sometime in 2022. Ms. Lafrance testified that the TV series was filmed in multiple cities across Canada such as Halifax, Montreal, and Toronto, and that about 50 actors and actresses were engaged. She was only involved in the marketing, production, and filming in Ottawa.

She claims that for all these services over the course of a year, including cleaning services she provided from time to time, she was paid about $1000. She testified that her services were otherwise for free because she wanted to be part of this production. She knew both Mr. Butt and Ms. Kelly. While she referred to it as a TV series about gangs, I am satisfied it is in reference to the same film production described by both Ms. Kelly and Mr. Butt. [ 44 ] Ms.

Lafrance testified that she is responsible for all the Kijiji ads for recruitment of actors and actresses in the Ottawa area, for posting the ads, for liaising with the actors, marketing, putting out calls, filming, and acting herself. She testified that the recruitment, advertising and liaising with actors was done by her and a person named Charlene and that it was done independent of any direction from Mr. Downey. She testified she created the SHDM email address.

She testified that two minors were engaged, but that was in Halifax, and she was not involved in the recruitment or production there. [ 45 ] I found Ms. Lafrance’s evidence not to be credible or reliable for the following reasons. First, I find that it is not believable that a person would create and operate a new SHDM email account and respond to messages from people on this email account with no direction from Mr. Downey who is the owner and director of SHDM since 2002. [ 46 ] Second, Ms. Lafrance testified that Mr. Butt was involved with production until June 2021 and then she took over all filming.

However, when she was later shown text messages indicating Mr. Butt’s continued involvement in the production, she changed her testimony to say that she became involved in the filming in the summer and he was gradually pushed out. [ 47 ] Third, I find her testimony that she sent emails to Mr. Butt to scare him about the debt owed by Mr. Downey and picked a random name of a lawyer who she did not know without any direction from Mr. Downey or that she sent emails of the boxing match

without any direction from Mr. Downey lacks credulity. [ 48 ] Fourth, Ms. Lafrance testified that everyone had contracts they would have to fill out to surrender rights to allow the company to use their images in the TV production, but acknowledged she never saw a single contract other than her own. When pressed further about how she would know that others signed contracts, she testified those were the rules so she assumed so. When pressed about her own contract, Ms. Lafrance could not say what company it was with or provide any particulars about the contract.

Her evidence is in stark contrast to the evidence of actress Ms. Kelly who reported to the police that there was no contract or paperwork when she was hired. [ 49 ] Fifth, Ms. Lafrance testified that she assumed the minors who had been engaged for filming in Halifax had their parents present but then acknowledged she was not in Halifax and would have no knowledge of this. [ 50 ] Sixth, Ms. Lafrance was shown the Kijiji add that she testified she drafted and posted, but when pressed, she could not explain what the words “Canadian Content Fund” meant. While Ms. Lafrance testified in an attempt to distance Mr.

Downey from the Kijiji advertisement recruiting models and actresses, she could not explain why Mr. Downey’s telephone contact information was on the advertisement. She suggested that his mother Margo Downey had a 343 number, but the police and Ministry investigation both indicate that the 343 number is associated with the accused. [ 51 ] Defence argues that the TV series has nothing to do with sex work and that Mr. Downey was not in breach of any specific conditions on his release order. I respectfully disagree. [ 52 ] Mr.

Downey’s release condition #11 specifically requires him to refrain from using any device that provides him access to the internet or other digital network. There is evidence from both Ms. Kelly and Mr. Butt that they exchanged emails with Mr. Downey. It is of no consequence that the emails went through an email address of SHDM films or were drafted by Ms. Lafrance. SHDM is Mr. Downey’s company and the production was for his benefit. That he has hired others like Ms.

Lafrance to do the work on his behalf does not undermine his own involvement in the recruitment and employment of these actresses for his production. The purpose of the release conditions was to limit Mr. Downey’s access to social media and thereby his ability to recruit women given his past conviction for human trafficking in 2014 and his pending charges, now convictions, for recruiting women into conducting sex work for his financial benefit. [ 53 ] Furthermore, both Mr. Butt and Ms. Kelly reported they communicated with the accused through text messages. As the Crown explains, texting requires Mr.

Downey to use a digital network such as Bell, Rogers, or Telus which he was not permitted to do. [ 54 ] There is also a second part of condition #11 that requires the accused to not directly or indirectly access online social media platforms or apps that recruit or supply models. The Kijiji ad posted by Mr. Downey’s company SHDM Inc does precisely that – it recruits models. [ 55 ] Finally, clause #15 requires Mr. Downey to not engage in any business that recruits models or supplies models or entertainers. The Kijiji ad posted by SHDM in Dec 2022 and which Ms.

Kelly reported was similar to the ad she responded to when she was recruited in the summer of 2021 does precisely that. Actresses fall into the category of entertainers. I do not accept that Ms. Lafrance did these postings of her own accord and without any direction from Mr. Downey, the registered owner of SHDM. [ 56 ] Defence argues that the police failure to lay breach charges undermines the strength of the evidence. The decision to lay criminal charges is a matter of police discretion.

There may be times when the failure of the police to lay charges in a timely fashion might cause a judge to question the strength of the evidence, but I do not find this is such an instance.

I find there is credible and trustworthy evidence that the accused was engaged in the operation of a business that was recruiting models and entertainers and was also using devices that accessed the internet and/or digital networks contrary to his release conditions. [ 57 ] Finally, the issue to be decided is not whether the uncharged conduct constitutes a breach beyond a reasonable doubt, but rather whether there is evidence before the court that there is substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.

I find that the uncharged conduct gives rise to such a risk. The accused was previously convicted of human trafficking of a 14 year old through recruitment in social media. His current convictions for human trafficking of four complainants ages 19 to 25 also involved recruitment through advertising for models and escorts via social media. The uncharged conduct also involves recruitment of models and entertainers. [ 58 ] In the offences for which the accused was recently convicted, I found he relied on a person named “Jamie” as the initial go- between him and the person being recruited.

Ads were placed in multiple cities and women were recruited from different cities. In the uncharged conduct, Ms. Lafrance testified that recruitment and production also occurred in multiple cities and in Halifax, it disturbingly involved the recruitment of two minors. [ 59 ] According to witness Ms. Kelly, and corroborated by Ms. Lafrance, the accused continues to use an intermediary named “Charlene” and possibly Ms. Lafrance as the initial go-between himself and the recruit. Furthermore, while neither Mr. Butt nor Ms.

Kelly were implicated in sex work, the accused failed to adequately compensate both of them for their services while they were employed with him which was what the four women he is now convicted of human trafficking experienced at a much more significant scale. [ 60 ] Finally, I found the accused engaged in various forms of deception in the operation of his business in the charges for which he was convicted.

The accused’s uncharged conduct also reveals the continued use of aliases and company names which the Ministry described as level “obfuscation” not common with legitimate businesses. [ 61 ] Even if I place no weight on the breaches involving M.M. which were stayed because of the failure to subpoena the witnesses for trial, I find that on the basis of Mr.

Downey’s history of breaching court orders, his prior conviction for human trafficking, his convictions as of January 2023 for 12 counts of human trafficking offences involving women aged 19 to 25, and his uncharged conduct where the accused continues to recruit and employ women, including possibly minors, there is a substantial likelihood that he would

commit a criminal offence if released. [ 62 ] Furthermore, I do not find that the accused surety Margo Downey is an appropriate surety given one, my findings at para 250 of my decision that Ms. Downey was financing the Spa where sex work occurred and two, recent reports by Ms. Kelly and Mr.

Butt, that Margo Downey is partially financing the accused’s production involving the recruitment of models and actresses. [ 63 ] In addition, I do not find that GPS monitoring can effectively deal with controlling the accused’s access to internet and digital networks to prevent him from engaging in any social media or communications that involve the recruitment of persons for employment by him or his agencies. I find the accused’s detention is warranted on the secondary ground. Issue 2: Is the accused’s detention warranted on tertiary grounds? [ 64 ] Section 515(10)(

c) of the Code stipulates that the court may detain a person in order to maintain confidence in the administration of justice and sets out four factors for consideration: a. The apparent strength of the prosecution’s case; b. The gravity of the offence; c. The circumstances surrounding the commission of the offence, including whether a firearm was used; and d.

The fact that Applicant 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. [ 65 ] A bail judge must assess each of these circumstances and consider their combined effect.

This is a balancing exercise that will enable the justice to decide whether detention is justified: St-Cloud , 2015 SCC 27 at para 55 . [ 66 ] In this case, factor c is irrelevant since a firearm was not used in the offences for which the accused has now been convicted. [ 67 ] The first two factors are given less weight since the accused was released on bail notwithstanding the strength of the Crown’s case and the gravity of the offences. What has changed, however, is that the accused has now lost the presumption of innocence.

The strength of the Crown’s case is established by my findings of guilt on all 12 counts. [ 68 ] With respect to the fourth factor, I must consider that the accused has been convicted of 12 human trafficking related offences on four different complainants. The time frame of these offences is very shortly after the accused exited from a 2 ½ year penitentiary sentence for a similar offence of human trafficking against a 14-year old complainant. The Crown has made it clear that they will be seeking a jail sentence of ten years or more given the number of convictions involving four complainants.

Given the accused’s prior criminal record, it is likely that Mr. Downey will be facing a penitentiary sentence. [ 69 ] In addition, the accused has breached conditions while on bail awaiting these charges and the Crown has now brought forward new facts which indicate that the accused continues to be involved in the recruitment of women. This conduct is concerning not simply because it is a contrary to his specific terms of release – clauses 11 and 15 - but involves the same modus operandi that was used to recruit the four complainants for which I found him guilty of human trafficking.

On this basis, I find that the accused’s detention is also warranted on the tertiary grounds. [ 70 ] In considering whether bail should be revoked, I have considered defence counsel’s claim that detention generally makes it more difficult for an accused person to prepare for sentencing. However, defence has not provided any information on how specifically detention would impede Mr. Downey’s ability to prepare for sentencing. [ 71 ] As explained in R v Green at para 12 , “post-conviction revocation of bail will most commonly occur where, during the course of the trial, new facts emerge about: (

i) the circumstances surrounding the commission of the index offence; (ii) other criminal acts engaged in by the offender; or (iii) the offender’s failure to comply with the terms of his or her release.

I find these conditions have been established here. [ 72 ] Given the seriousness of these 12 new convictions for human trafficking on young vulnerable women and the manner in which they were recruited, that these offences occurred on the heels of the accused exiting the penitentiary a similar offence of human trafficking of a 14-year old, the likelihood of the accused being sentenced to a penitentiary sentence for the 12 recent convictions, the accused’s history of breaching court orders, and especially the new facts regarding the accused’s uncharged conduct which is not only contrary to his bail conditions but demonstrates that the accused continues to recruit people for employment giving rise to the risk of further exploitation of vulnerable persons, I find the Crown has shown cause why the accused’s detention is required to maintain public confidence in the administration of justice.

Mr. Downey’s previous release order is vacated, and he shall be detained. Somji J. Released: February 14, 2023

CITATION : R. v. Downey, 2023 ONSC 1111 COURT FILE NO.: 19-1941 DATE: 2023/02/14 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – Juteah Downey Accused ruling on revocation of bail Somji J. Released: February 14, 2023