ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Douglas Bright
Accused
Elise Quinn, for the Crown
Terry Waltenbury, for the accused
HEARD: November 22, 23 & 24, 2016
PUBLICATION RESTRICTION NOTICE:
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION BEFORE THE JURY IN THIS CASE SHALL RETIRE TO CONSIDER ITS VERDICT, AND IS SUBJECT TO PUBLICATION RESTRICTION UNDER S. 486.4(1) OF THE CRIMINAL CODE, BY ORDER OF JUSTICE A.D. KURKE, NOVEMBER 22, 2016
DECISION ON APPLICATIONS
A.D. KURKE, J.
Overview
1The Crown applies to introduce at the trial of this matter opinion evidence and various categories of evidence of the accused’s discreditable conduct that is extrinsic to the charges before the court.
Background
2The applications were heard over a period of three days between November 22 and 24, 2016. The Crown introduced as exhibits the proposed expert’s report (Exhibit “K”) and curriculum vitae (Exhibit “J”), books of exhibits relating to the various categories of discreditable conduct evidence it was seeking to introduce (Exhibits “A” to “H”), and a supplementary application record, which was made Exhibit “I” as a means of recording the additional evidence that it contained.
3On the hearing of the application concerning discreditable conduct, the Crown ultimately did not pursue rulings on the admissibility of Exhibits “B”, “C”, and “H”. I heard submissions regarding the accused’s Facebook posts and pictures (Exhibit “A”), the Reasons for Decision on the accused’s prior conviction (Exhibit “D”), and pictures found on the accused’s tablet regarding sexual advertising (Exhibit “F”). The parties deferred my consideration relating to other pictures found on the accused’s tablet (Exhibit “G”), and his Instagram posts and pictures (Exhibit “E”), as potentially being capable of agreement between counsel.
Facts relating to the applications
4As background to its applications, the Crown relies on the following facts, relating to the evidence that the complainant D.M., whose identity is protected by a publication ban, is expected to give on the trial of this matter:
On June 17, 2015, D.M. was arrested by a security officer for shoplifting at the LCBO in downtown Sudbury.
Upon police arrival, Cst. Brouillette of the Greater Sudbury Police Service began speaking with D.M., who was crying and mumbling and appeared oddly agitated. She told Cst. Brouillette that she did not want her pimp to see her with police. Cst. Brouillette brought D.M. back to the police station, where she provided a statement detailing how she became a prostitute for the accused.
D.M. first met the accused in January 2015, when he started “liking” her pictures and chatting with her over Facebook. Eventually, he invited her over to his mother’s house, where he was living in the basement. He paid for her taxi ride there and they hung out for a couple of days. They engaged in a sexual relationship over the next few days. Shortly after that, the accused explained to D.M. how she could make a lot of money working in hotels in the Toronto area as a prostitute.
D.M. was willing at first and they eventually travelled to Brampton, where they stayed at the residence of a family member of the accused’s on Campbell Drive. There, the accused took pictures of D.M. and set up her escort profile on a social media website called “backpage.com” (“backpage”). He also provided her a pay-as-you-go phone in order to set up dates with clients.
D.M.’s work routine would often go as follows: the accused would rent a hotel room while D.M. waited in the car. He would then provide her with the key card to the room so that she could attend the room to set up and receive clients. After D.M. arrived in the hotel room, the accused would take back the access key and leave her in the room, limiting her ability to leave it. D.M. would call the accused every time she made around $500 and he would take the money from her. She was to pay him at least $500 for protection.
From January to June 2015, D.M. worked in various motels in the Brampton and Mississauga areas. D.M. worked approximately 5 to 6 days a week making anywhere from $500 to $1500 per day, sometimes seeing up to 10 clients per day.
It is estimated that D.M. made approximately $60,000 to $80,000 during the time she worked as a prostitute for the accused.
D.M. saw very little of the money she made, as it was always handed to the accused. The accused would often take D.M. shopping for clothes that she could work in, or for dinner at McDonalds. One time, the accused gave her $500 for her rent. These were the few ways she was able to profit from the money she made as a prostitute.
At one point, D.M. started hiding money from the accused. On one occasion, the accused found out and he pushed her down some stairs. D.M. gave the money to the accused as she was afraid of what he might do if she did not.
When D.M. would tell the accused that she was tired and burnt out, or had a desire to leave or to stop working or to see her family in Sudbury, he would convince her to keep working. It is anticipated that D.M. will testify that the accused inserted an item in her vagina in order that she continue working during her menstrual cycle.
Issue 1: Opinion evidence
5The Crown advanced Detective Sgt. Thai Truong (“Truong”) to be qualified to offer opinion evidence in the area of “Prostitution and Human Trafficking, including the Recruitment and Grooming Process for Prostitutes, Pimping Practices, On-line Prostitution, Rates of Pay, and Terminology”.
Facts relating to this application
6Truong’s opinions in this area have twice before been accepted by courts. In 2015, in Superior Court in Brampton, the Crown put into evidence Truong’s report and opinions at a sentencing hearing in a case involving commercial sexual exploitation. Truong was also called and qualified as an expert witness by the defence at a preliminary inquiry in Newmarket in 2016 into similar charges.
7Truong’s curriculum vitae, Exhibit “J” on the hearing, describes his qualifications in great detail. Truong also testified about them.
8In particular, in 2008, Truong was moved to the Vice Team of the York Regional Police, with which force he has served since 2002. He was assigned to human trafficking investigations, involving the commercial sale of the services of women and girls in the sex trade. His focus was on investigations into such conduct as exploitation.
9Through his work, Truong has taken part in large numbers of investigations, either as investigator or as reviewing supervisor. He has interviewed, spoken with, or questioned “johns”, victims of human trafficking, exploited persons, sex workers, male and female “pimps”, drivers of women in the sex trade, hotel employees, parents, foster parents, and family members of young women in prostitution and exploitative situations, CAS workers, and counsellors, among others, and amassed considerable knowledge from them.
10Truong has lectured around Canada and in the United States in this field, and attended numerous conferences, courses and workshops as speaker or attendee. At those learning opportunities, Truong was taught by psychologists, traumatologists, survivors of human trafficking and exploitation, investigators from other police services, Crown and district attorneys, social service workers, women’s shelter and group home workers, and academics.
11Truong has been involved in investigations that have led to at least 128 arrests of individuals on “pimping” charges. Truong “conservatively” estimates his direct investigative participation in approximately half of those. The majority of the cases were resolved by way of pleas of guilty to some offence, but given the frailties of the evidence involved or other factors, those pleas may have been to lesser charges. Truong summarized, in point form, the bulk of the sex trafficking investigations in which he participated, at pages 40 to 55 of his curriculum vitae.
12Truong’s focus has been on prostitutes who are being exploited by pimps. For Truong, the term “pimp” implies an exploitative relationship. In cross-examination, he agreed that he has very little knowledge about prostitutes who themselves hire assistance for protection or for posting ads, as his focus naturally is on the exploitative relationship, and not on independent prostitutes. From speaking with drivers, Truong was able to indicate that the cost of driving a girl to a call was some $40, and that that price generally presumed as well a level of personal protection.
13Truong is able to opine about how pimps are able to manipulate their victims by searching out and exploiting their individual vulnerabilities, which can take many forms, in order to secure financial gain. He is able to isolate and identify various tactics used by pimps to exercise power and control over their prostitutes, and the ways in which they use available vulnerabilities towards this end.
14In his opinion, Truong breaks down common recruitment and control tactics into four stages: recruiting, segregating, control, and isolation.
15Recruitment often begins with romancing and charming the victim, but can also start with the exercise of control through violence. Pimps seek out their victims in venues where young people congregate, including internet locations such as Facebook, Instagram, or chat rooms. In addition to financial need, they look for emotional vulnerabilities and insecurity in their victims. Pimps often offer their targets the trappings of relationships and feign emotional involvement.
16Segregation involves transporting the girls away from their home community, into different locations, thus taking them away from family and friends. This will result in a greater dependency on the pimp.
17During the control phase, the girl is introduced into the sex trade. She can be directed or mentored by the pimp or another girl in his orbit, or from his “stable” or “family”. The girl is taught the rules of the trade. Sometimes, violence or threats can be used to ensure compliance and control, and financial surrender. Most sex trafficking victims consent to their exploitation, and come to view the pimps controlling behaviours as normal. Fear of reprisal can be an effective compliance tool: “Pimps simply directing their victims not to leave the room without permission or withholding the hotel key is often enough to gain compliance.”
18The final stage of the relationship involves isolation, in which the victim likely suffers some emotional or physical abuse. The victim may view the pimp as a friend or spouse. She may turn over her earnings in hopes of a better future, or because they fear the consequences of not doing so. Threats can be used if the victim is not producing enough money for the pimp. The victim is often left feeling helpless before they reach a breaking point and can escape or seek help. Even after leaving, many prostitutes return to their pimp or the trade.
19When victims are feeling vulnerable and defenceless under the control of the pimp, they may well decline police assistance when it is offered: “More often than not, the police are the last resort.” Police are “squares” who do not understand a prostitute’s situation. Prostitutes prefer to deny that they are controlled. Because of their sense of helplessness and learned inability to seek assistance, exploited prostitutes can be viewed in the community as willing participants.
20The internet is now a common tool for the customer seeking the services of a prostitute. “backpage.com” is the current “market leader” in sex advertising. Truong is able to describe how this site works and how advertising is conducted, and the meaning of various aspects of ads. The term “in call” work involves the prostitute supplying the location for the sexual business, generally hotels; in “out calls”, the prostitute goes to where the client is. In exploitative situations, the pimp will set up the meeting with the prostitute, who typically will turn over her profits to him or her. There is a jargon employed in the advertising of sexual services that Truong is able to describe. It includes standard abbreviations for sexual acts, as well as such trade comments as “No black gents”, which can itself be, among other things, a warning to other potential pimps that a particular prostitute is already in the service of a pimp. A cellular telephone number will be associated to the ad, for arrangements by call or text.
21Rates for prostitution vary, depending on such things as: whether the prostitute is independent, run by an agency or controlled by a pimp; attractiveness of the prostitute; the type of sexual service requested; and the amount of time purchased. Restrictions on services are also sometimes advertised. Truong is able to speak about common rates.
The law
22In determining the admissibility of opinion evidence, the court is guided by instructions from the Supreme Court of Canada in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] S.C.J. No. 36. At para. 17 of that decision, the court highlighted four preconditions for admissibility:
Relevance;
Necessity in assisting the trier-of-fact;
Absence of any exclusionary rule; and
A properly qualified expert.
23Evidence that fails to meet any of these preconditions must be excluded: R. v. Abbey, 2009 ONCA 624, [2009] O.J. No. 3534 (C.A.), at para. 78.
24In Abbey, Doherty J.A. for the Ontario Court of Appeal offered refinements on the Mohan structure, establishing a second step “gatekeeper” function, at which the court is to conduct what is, in effect, a cost/benefit analysis about the proposed evidence. At this step, the court is to weigh competing considerations about the proposed opinion evidence, and determine whether, on balance, the benefits of admission outweigh the costs: Abbey, at para. 79.
25A court engaged in this process must determine the nature and scope of the evidence to be admitted, and is required to control the opinion to be offered depending on the considerations at play: Abbey, at paras. 62-63. The trial judge must take care to ensure that the opinion that is offered does not take away the jury’s role in the process by, for instance, going to the ultimate issue of the case. The opinion should not dictate the conclusion that the jury must draw: Abbey, at para. 70.
26“Relevance” comprises considerations of logical relevance and legal relevance. The first requires that the evidence tend to make the existence or non-existence of a fact in issue more or less likely than it would be in the absence of the evidence. Legal relevance involves the subject-matter of the second step in the process, the weighing of the costs and benefits of the proposed opinion: Abbey, at paras. 82-84.
27“Necessity” ensures that opinion evidence is not too lightly admitted. The evidence must be necessary to assist the jury with information that is likely to be outside their experience and knowledge: Mohan, at para. 22. Mere helpfulness does not suffice. Another way of considering the issue is to assess whether lay persons are apt to come to a wrong conclusion without the opinion evidence, or whether access to important information would be lost without the learning offered by an expert: R. v. D.D., 2000 SCC 43, [2000] S.C.J. No. 44, at para. 57. Necessity includes the need to provide a context in which to properly assess the credibility of an essential witness: R. v. D.S.F., 1999 CanLII 3704 (ON CA), [1999] O.J. No. 688 (C.A.), at paras. 59-60.
28Concerning “absence of an exclusionary rule”, a court must ensure that the proposed opinion evidence is not evidence that must be excluded by some other rule. A common example is the potential for the Crown, by admission of the proposed opinion evidence, to improperly and unfairly raise the issue of the accused’s “bad character”: Mohan, at para. 26.
29A “properly qualified expert” is one who, through study or experience has acquired special or peculiar knowledge in respect of the matters about which the expert is going to testify: Mohan, at para. 27.
30Factors to be considered at the second step of the Abbey inquiry concern such issues as: whether the evidence is sufficiently reliable to merit its consideration by the jury; its probative value; the impartiality of the proposed expert; the potential prejudice from the evidence, including its ability to overwhelm, distract or confuse the jury about actual issues; the ability of a cross-examiner to test its shortcomings before the jury; and its ability to unduly protract or complicate court proceedings: Abbey, at paras. 87-91.
Analysis
31Ultimately, on the application, the defence took no issue with Truong’s qualifications to offer opinion evidence in the proposed area, with respect to Backpage and its associated terminology, but submitted that most of Truong’s evidence should not be admitted at trial for other reasons. The defence submits that instead of expert evidence, an instruction from the trial judge, cautioning that victims of exploitation do not all behave the same way, would suffice to ensure that the jury exercises care in assessing the complainant’s testimony.
32I find that the evidence of Truong is logically relevant, in that it provides a context for the charges.
33Truong’s evidence provides context, background and terminology used by the different players in the prostitution milieu. Truong is able to assist the jury in understanding methods of advertising, and how “backpage”, the pornographic website on which ads involving the complainant were placed, works. Indeed, defence counsel conceded at least the admissibility of this aspect of Truong’s evidence.
34Truong’s evidence explains methods employed by pimps in grooming and recruiting women into prostitution. It provides information regarding the types of women whom exploiters seek to recruit. It explains the dynamics between exploiters and prostitutes within the prostitution subculture, especially with respect to control issues, business issues and the money relationship. It also offers significant insight into the conduct of prostitutes in their dealings with exploiters and the police.
35I have had the opportunity to review the evidence given by the complainant at the preliminary inquiry in this matter. It is apparent to me that she is a drug user who became romantically involved with the accused, and from that point entered into the business of prostitution. She does not present in her evidence as particularly self-reflective. The complainant’s early relationship with the accused; the genesis of her decision to become a prostitute; her claims about the involvement of another woman in introducing her to the business; her manner of conducting herself towards the accused while working as a prostitute, and her description of the accused’s conduct towards her; her manner of dealing with police; and her choices with respect to leaving or remaining in that business, are all areas for which a jury in this community will require the context offered by Truong’s opinions in order to assess the complainant’s evidence intelligently and knowledgeably. An instruction from the trial judge, as suggested by the defence, would provide a caution to the jury, but without the assistance to help them do their job properly.
36With respect to the criterion of “necessity”, it is my view that lay persons on the jury would be likely to come to an inaccurate and uninformed assessment of the complainant’s evidence in this case without the assistance of the lens offered by Truong’s evidence to focus their understanding.
37While lay people may have some popular and uninformed knowledge and opinions about “pimps” and their relationship to prostitutes, the task of the jury in this case will require the informed understanding that they can only gain through the assistance of the detail and comprehensiveness of the expert evidence. In addition, the complainant in this case is, or was, a prostitute, a figure that may not command much compassion or understanding from a lay person. Truong’s opinion in the delineated area is absolutely essential for the jury to do its job properly.
38On the second step of the analysis, I begin with an assessment of the reliability of Truong’s evidence.
39I note that Truong’s opinion is based on interviews conducted with persons involved in the many cases in which he has taken part as investigator or supervisor, in addition to training received from professionals in many fields of study and police colleagues. Truong has kept records of many cases, and has tabulated those cases in his curriculum vitae. Truong explains in straightforward ways how he arrives at his opinions, explains variability in his conclusions, and the limits of his knowledge. A jury will be able to assess his opinions and assign them appropriate weight. His opinions have been developed without reference to this case, and therefore can be considered an independent yardstick against which to measure the other evidence of the case. This evidence is sufficiently reliable to justify its admission.
40Counsel questions the ability of Truong to offer a comprehensive opinion, as his work has limited his focus to situations of exploitation. Truong has less knowledge about prostitutes who operate independently of pimps, and their manner of operating. However, that limit is an issue that will go to the weight assigned Truong’s opinion by the jury. It does not detract from the probative value of the detailed information that Truong can actually offer.
41It was not suggested that Truong is biased in any way, save that his focus has been on exploitative relationships, rather than on independent business relationships in which prostitutes could be involved. I am satisfied that, within the area in which he is prepared to offer opinion evidence, Truong will be fair and impartial.
42The evidence itself is quite straightforward, and easy to understand. The limits of the assistance that it can offer, such as its focus on exploitative relationships, may be quickly explored in cross-examination, and easily laid bare. This is not evidence that will unduly protract proceedings or overwhelm the jury. It does not itself seek to explain directly any evidence in this case, or take away the jury’s role in determining the factual issues involved in this proceeding.
43In my view, the benefits of the admission of this evidence clearly outweigh the potential costs.
Conclusion
44The opinion evidence of Detective Sgt. Truong will be admitted in the delineated area.
45Counsel has objected to the language used in this evidence, in particular to the use of such terms as “pimp” and “human trafficking”. Counsel points out that neither term figures in the charges faced by the accused, and that the terms can carry prejudicial value-laden connotations. While I see some merit in this submission with respect to “human trafficking”, and would urge the Crown to control the use of this term in Truong’s evidence, I am less concerned about the term “pimp”. That word will likely arise in any event in the evidence of D.M., and is in common parlance. If requested, I will consider delivering an instruction to ensure that the jury is discouraged from any prejudicial impact of the terms.
Issue 2: Discreditable conduct (“Bad Character”) evidence
46Evidence of extrinsic misconduct on the part of an accused that shows that he is a person of “bad character”, and therefore likely to have committed the offence charged, is inadmissible, as encouraging impermissible reasoning on the part of the jury. However, evidence that is relevant and material, but which incidentally tends to show that an accused is a person of bad character, can be admissible so long as its probative value exceeds its prejudicial effect: R. v. Arp, 1998 CanLII 769 (SCC), [1998] S.C.J. No. 82, at para. 41; R. v. J.A.T., 2012 ONCA 177, [2012] O.J. No. 1208 (C.A.), at para. 51.
47To be caught under the rule, the evidence in question need not involve criminal misconduct. In a broader sense, evidence that is somehow discreditable to an accused, even if not criminal, carries with it the potential for prejudicial effect: R. v. Handy, 2002 SCC 56, [2002] S.C.J. No. 57, at para. 34; R. v. Mahalingan, 2008 SCC 63, [2008] S.C.J. No. 64, at para. 160.
48“Prejudice” does not mean that the evidence will increase the chance of conviction; rather, the concern is its improper or unfair use by the jury: R. v. L.B., 1997 CanLII 3187 (ON CA), [1997] O.J. No. 3042 (C.A.), at para. 22. Such improper use can include aspects of moral or reasoning prejudice, such as 1) a determination by the jury that the evidence proves the accused to be a “bad man” and likely guilty of the offence charged; 2) the jury’s determination that the accused deserves punishment for the extrinsic conduct through conviction for the charged offence; and 3) a finding of guilt on the charged offence because of confusion as a result of the introduction of the evidence of extrinsic misconduct: Handy, at paras. 31, 72, 100, 145; Shearing, 2002 SCC 58, [2002] S.C.J. No. 59, at para. 64; J.A.T., at para. 52.
49Similar fact evidence is a species of bad character evidence. As is the case with respect to all evidence of an accused’s bad character, the concern is to ensure that what gets put before the jury has probative value beyond the mere prejudicial force of the accused’s disposition.
50The Supreme Court of Canada, in Handy, offers guidance for determining the admissibility of similar fact evidence, which is presumptively inadmissible. The controlling issue is whether the probative value of the evidence in relation to a particular issue outweighs its prejudicial effect. If that is proven on the balance of probabilities, then the evidence can be admitted: Handy, at paras. 55, 101.
51Similar fact evidence proper takes its force from the degree of distinctness or uniqueness of the allegedly similar evidence. The greater the similarity of the evidence, the greater the objective improbability of coincidence. The inferences to be drawn from the similar fact evidence must accord with common sense, intuitive notions of probability, and the unlikelihood of coincidence, and be sufficiently cogent as to outweigh the incidental prejudice that derives from disposition reasoning: Handy, at para. 42.
52If evidence of extrinsic misconduct is admitted, the trial judge has a duty to minimize or eliminate any prejudicial effect through mid-trial and final instructions that will focus the jury on their permitted use of the evidence and prevent its improper use: R. v. J.A.T., at para. 53; R. v. S.G.G., 1997 CanLII 311 (SCC), [1997] S.C.J. No. 70, at para. 69; R. v. R.O., 2015 ONCA 814, [2015] O.J. No. 6170 (C.A.), at paras. 31-35.
a. Reasons for decision on the accused’s prior convictions (Exhibit “D”)
53The Crown applies to use the facts as found by Meehan J. on the accused’s prior Sudbury convictions after trial on May 18, 2005, for offences involving exploitative treatment of a prostitute (Exhibit “D” on the application; Crown Book of Exhibits 3).
Background Facts
54The facts concerning the accused’s dealings with complainant Dawn M. (“M”) are set out at paragraphs 8 to 23, 34-35, and 43 of that decision.
55In those facts, Meehan J. apparently found the following about M:
a. M was a prostitute before coming to Sudbury to deal with a drug habit. After treatment at a Sudbury facility, she met the accused at a Narcotics Anonymous meeting;
b. M thought that she was in love with the accused. The accused suggested to her that she might want to invest in a jewelry business he claimed to run;
c. To raise money for the accused’s business, M went out and earned money as a prostitute, and gave it to the accused;
d. She described the relationship between them as “pimp and ho”;
e. M’s contributions were initially appreciated, then required, and then demanded by the accused;
f. M gave the accused all of the money she earned as a prostitute, often several hundred dollars a night, which was often used to purchase cocaine for the accused, and some for M;
g. M and the accused lived at the accused’s mother’s house for a time, but went to a motel when they were “evicted” from there;
h. The accused was violent with M to get her to go out on the street;
i. The accused was very violent with M on one occasion when she refused to provide fellatio to a client, and inflicted on her a severe beating that resulted in bodily harm to M’s arm;
j. M fled from the accused, and went to Genevra House. She attended the hospital, where her injuries were assessed;
k. M reconciled with the accused, and the two of them went to Toronto;
l. Toronto police became involved, referred the matter to Sudbury police, and the charges were laid.
Discussion
56The Crown submits that the evidence will assist the jury in dealing with any claim by the accused of “innocent association”, in proving the actus reus of the offences, and with assessing the complainant D.M.’s credibility, and urges the following similarities between the facts of M’s situation and the present case involving the evidence of D.M.:
a. M was an active prostitute, and D.M. interested in prostitution, when they met the accused;
b. As with M, D.M. and the accused initially became involved in a relationship before he used her as a prostitute;
c. With M, the accused suggested that she make money to invest in his business. The accused suggested to D.M. that he would hold onto the money she earned and invest it for her, so that she could use it to buy a house or a car;
d. Like M, D.M. claims that she turned over to the accused all of the money she made as a prostitute, which amounted generally to hundreds of dollars a day;
e. M was a cocaine addict. D.M. had a substance addiction, although her drug of choice was marijuana. As I understand it, the accused would sometimes provide the drug to her.
57Most of these aspects seem to be generic features of such a relationship. However, the Crown submits that the “investment” of money proposed by the accused is a distinctive feature shared by the two complainants, and that this feature raises the probative value of the evidence: R. v. Handy, paras. 76, 78.
58With respect, I cannot agree. In M’s case, the accused proposed from the start that she invest money in his company, which figures as something of a loan from a girlfriend. On the other hand, D.M. wanted the prostitution money for herself; the accused told her that he would take the money so that it would not be stolen, and would thereby help her save towards the purchase of a house or car. The two stories offered by the accused serve as nothing more than a facile justification initially to take from the two women the money that they earned. Although underhanded, there is nothing particularly distinctive about this conduct.
59Moreover, as the defence submits, there exist many dissimilarities in the conduct:
a. M was a prostitute before coming to Sudbury. D.M. was encouraged into the business by the accused;
b. So far as I can tell, M worked as a prostitute in Sudbury, whereas the accused brought D.M. to a different location, Brampton, to ply the trade;
c. D.M. allegedly was enticed into prostitution to earn money for herself. It was afterwards that the accused took her money and claimed that he was investing it for her. M was enticed to associate in prostitution with the accused to invest in his business;
d. It appears that the accused pimped M on the streets, while D.M. was set up in hotels to meet with clients;
e. There is no indication of any advertising undertaken for M, while the accused is alleged to have placed “backpage” ads involving D.M.’s services;
f. D.M. alleges very little actual personal violence at the hands of the accused (although minor violence, threats, and innuendos were employed), while the accused was found to have been very violent with M;
g. The events involving M occurred in 2001 to 2002, some 13 years before the events described by D.M. The passage of that much time is itself of concern, as it does not take into account changes to a person’s character over time: Handy, at para. 122.
60The similarities of conduct in this case appear to be generic to the pimp/prostitute relationship: the exploiter finds a vulnerable woman, exploits her weakness, entices her to work with him as a prostitute, controls and directs her conduct, and forces her to disgorge her earnings to him. Nothing is so distinctive as to make the probative force of the evidence anything but slight, especially in light of the dissimilarities. Indeed, the generic features in the accounts are what contribute to the admissibility of the evidence of Det. Sgt. Truong: cf. R. v. McPherson, 2011 ONSC 7719, at para. 21.
61The similarities that exist do not seem to me to outweigh the substantial prejudice of introducing to the jury in this case the details of the accused’s prior conduct with M. Unless some truly distinctive feature can be pointed out, to reduce the possibility of coincidence, all that the circumstances of M’s case do is encourage the jury towards the prohibited chain of reasoning, that the accused is more likely to have acted as a pimp this time, because he was convicted of being one in the past: Handy, at paras. 115-116. And indeed, it could be difficult for the jury to disabuse their minds of their distaste at the proven detailed conduct of the accused.
62Further, the defence raises concern about the possibility of “collusion”, the existence of evidence showing that D.M. may have intentionally or accidentally modified or changed her allegations by her familiarity with the facts behind the accused’s previous conviction for a “pimping” offence: Shearing, at para. 44. A finding that D.M., on the balance of probabilities, had engaged in such conduct, would necessarily subvert the basis for the introduction of the reasons behind the earlier conviction, as it would eliminate the cogency of coincidence in the common features of her evidence and the similar fact evidence: Handy, at para. 99.
63However, as the Crown points out, the mere opportunity for collusion does not suffice: Handy, at para. 111. There must be an air of reality to the claim. If there is evidence sufficient to raise the issue, the trial judge, in his or her gatekeeping role, must not permit the introduction of the evidence unless the Crown can satisfy the court that the similar fact evidence is not tainted by collusion: Handy, at paras. 111-113.
64The Crown submits that there is no air of reality to collusion in the circumstances of this case. While D.M. had become aware of the earlier allegations, there is no indication that she had a motive to fabricate anything similar. The defence asserts that D.M. had a motive to weaken the accused’s control over her, and have a means of holding on to money that she had surreptitiously kept from him.
65Evidence on the application demonstrates that shortly before speaking with police, D.M. had learned from “Google” why the accused had earlier gone to prison. Further, a vindictive ex-girlfriend of the accused, who admitted to having an agenda, told the complainant in a text conversation that the accused had done “6 years in the pen for the same thing he was doing with you”, prior to the complainant’s statement to police. Indeed, in the same conversation, D.M. states that “he knows I have so much more power over him considering I’m a girl and could just go to the cops and be like yo this dude beat me and the cops would believe it looks this record aha”. The complainant, when asked about this at the preliminary inquiry, denied doing any such thing.
66Is there then an air of reality to collusion that has not been sufficiently rebutted by evidence at the preliminary inquiry?
67It is difficult, on a paper proceeding, to determine this issue. However, on the evidence before me, I find that the proposed similar fact evidence lacks any distinctive similarities that would lend it any significant probative weight. When that finding is coupled with collateral distractions about “collusion”, any probative value virtually evaporates.
68What is left is only the prejudicial effect of the evidence of the facts behind the accused’s earlier convictions for offences relating to “pimping offences”.
Conclusion
69Accordingly, I find that the evidence detailing the facts behind the accused’s earlier convictions must be excluded from consideration by the jury in this case.
b. Pictures regarding sexual advertising
70The Crown seeks the admissibility of pictures found on the accused’s electronic tablet, relating to the advertising of sexual services (Book of Exhibits 6; Exhibit. “F” on the application).
The pictures
71There are six pictures in this exhibit.
72Three of them (pages 4-6) mirror the wording and layout used, and variously deployed, on advertisements relating to complainant D.M. that were posted on the “backpage” website that hosts prostitution ads (see supplementary application record tab 3.2, 3.3, 3.4). With few changes, the pictures found on the tablet and the “backpage” ads share colour palette, formatting, relative font size of words and images, and choice of capital or lower case letters. The ads generally have additional information also.
73Three of the pictures found on the tablet (pages 1-3) use wording from which it may be easily inferred that they come from ads, or were being considered for ads. I repeat them below, with no attempt made at accurate formatting:
74Page 1: The following text is framed on the page between photos of young blonde females, at least one of whom is scantily clad:
ALL DONATIONS ARE FOR TIME AND COMPANIONSHIP ONLY
ANYTHING ELSE THAT MAY OCCUR IS BETWEEN TWO CONSENTING ADULTS
BY CONTACTING ME YOU AGREE THAT YOU ARE NOT AFFILIATED WITH ANY FORM OF LAW ENFORCEMENT
75Page 2: The text, similar to that on page 1, but slightly changed, is superimposed on a black background above a pink cartoon image of a provocatively posing female amidst a stylized plant on the lower left, beside the pink words “Come Play With Me”:
ALL DONATIONS ARE FOR TIME AND COMPANIONSHIP ONLY
ANY ELSE THAT MAY OCCUR IS BETWEEN TWO CONSENTING ADULTS
BY CONTACTING ME YOU AGREE THAT YOU ARE NOT AFFILIATED WITH LAW ENFORCEMENT OR GOVERNMENT
76Page 3: The text appears as red graffiti on a white brick background wall:
PLEASE DO NOT CALL OR TEXT ME UNTIL YOU ARE READY TO SEE ME!!!!
*Read Ad Before Calling!!!!
Analysis
77The probative value of pages 4-6 relates to the fact that the pictures on the tablet mirror the wording on ads placed about the sexual services of complainant D.M. From such evidence, a properly instructed jury could conclude that the accused had a hand in the preparation of the backpage ads. This evidence therefore at least goes directly to proving count 4 on the indictment, an offence under s. 286.4 of the Criminal Code of Canada.
78In my view, the evidence may also act as circumstantial evidence that will assist in proving count 1 (s. 286.3(1)), count 2 (s. 279.01(1)), count 3 (s. 279.02(1)), and count 5 (s. 286.2(1)). For if, on the evidence of D.M. and these pictures, the jury finds that the accused took charge of D.M.’s advertisements, the existence of the pictures under the control of the accused on the accused’s tablet could also reasonably allow them to conclude that he controlled D.M. in the other aspects of their business relationship, thus confirming her evidence on these other counts.
79But what of pages 1 to 3? We do not see their wording on backpage ads that relate to D.M.
80Significantly, the variation in the wording between pages 1 and 2, since both sets of wording are found on the accused’s tablet, situated in proximity to suggestive images of females, will allow a reasonable inference that the accused was experimenting with different wording for the advertising of a prostitute. This once again is evidence that could allow the jury to conclude, on D.M.’s testimony, that the accused was in charge of advertising, and therefore other aspects of the relationship as well.
81On the other hand, the wording on page 3, though it clearly relates somehow to advertising, could refer to any subject-matter. It offers little to further any inference that it relates to prostitution. Accordingly, it has little probative value in the circumstances of this case.
82With respect to prejudice, the material in this exhibit does reflect badly on the accused. The probative value of the evidence relates to encouragement to use the services of a prostitute. Without guidance, a jury could be tempted to convict the accused on the basis that he at least has knowledge about prostitutes and produces or downloads advertising about prostitution. But that prejudice can be controlled with a proper instruction.
83The accused argues that it is not possible to know how the ad artifacts came to be on the accused’s tablet. There may be innocent explanations for their presence that do not involve the accused’s participation in making the ads or considering material for future ads. While there is merit to that argument, the existence of other possibilities does not negate the probative value of the pictures at this stage. Other evidence may provide alternative, innocent explanations for the material on the accused’s tablet. The Crown need not discount all innocent meanings of the evidence for it to survive the initial threshold screening.
Conclusion
84In weighing probative value against prejudicial effect, I conclude that pages 4, 5, and 6, given their representation on “backpage” ads of the complainant, have significant probative value, easily exceeding their prejudicial effect.
85With respect to pages 1 and 2, I am of the view that the words, especially in the context of their variation, have sufficient probative value to overcome any prejudicial effect, so long as the jury is given an appropriate limiting instruction about the use of the evidence.
86With respect to page 3, I conclude that it is not admissible, as its probative value is so slight as to cause concern about what prejudicial impact it may exert on the jury.
c. Facebook posts and pictures
87The Crown also seeks to have admitted Facebook posts and pictures attributable to the accused (Book of Exhibits 5; Exhibit “A” on the application). Exhibit “A” consists of 8 pages, of which the Crown seeks rulings on pages 2, 3, 5, 6, and 8.
Pages 2 and 3
88Page 2 is text followed by a drawn ad for a “Jamaica Vacation” from August 3 to 9. The ad is headed “The Mile High Club”, and offers a price of $599.00 Canadian per person, plus tax. On the ad are depicted two suggestively dressed women. At the bottom are printed the names of various events or tours that are available for participants.
89The text appears to be attributed to Doug D Bright, and is dated May 29. It reads as follows: “GODFATHAZ Rented a jet plan for 50 people. The mile high club. Ballers *** Who wants to come party in Jamaica with me and the Northern Union event page with contact info and payment plan coming its going to be bananas Only 50 seats available. .. first come first serve. Only $600.00 2 eazy payments. Ill take you were you need to go. August 3rd to the 9th one week in the sun and fun. – with Michelle Caya-Beaudry and 39 others.”
90Page 3 is a May 29 comment from the complainant: “I’ll be there ha ha”, to which the accused has responded “I already got your payment [D.M.]”. Counsel agree that the comments on page 3 relate to the material on page 2.
91Crown counsel asserts that the material on page 2 is probative as it represents a form of recruitment of women who want to participate by making themselves sexually available at this event. The material also proves that the accused and D.M. knew each other and were apparently on easy terms with each other, given the remarks on page 3.
92The accused questions the probative value asserted by the Crown. Scantily clad women and the name of the “club” are put forward by the Crown as grounding the assertion that this is a call into prostitution. The evidence simply cannot support the Crown’s meaning. The accused concedes, however, that the material does prove the association between accused and D.M., should that fact be called into question. However, page 2 would require the removal of suggestive terminology, such as “the mile high club”, and “Ballers”, and the removal of the ad altogether, in order to provide a less prejudicial context in which to understand page 3.
93I agree with the defence. I do not see how this can be a recruitment ad. By this time, according to the Crown’s case, D.M. had been working with the accused for five months; she did not need to be recruited. Moreover, on its face, the ad and commentary on page 2 seek paying participants. I see in the material no call for prostitutes to work the clientele.
94So far as I can discern, the material on pages 2 and 3 is reasonably probative only to show that the accused and D.M. were on familiar terms with one another. And on that heading of probity, only if page 2 is redacted as proposed by the defence.
95As I see no prejudicial effect to the material if it is properly edited, the evidence will be admissible for this purpose after editing, at the instance of the Crown.
Page 5
96On page 5, the accused has posted, on April 23, “The big difference between sex for money and sex for free is that sex for money usually costs less.” This comment drew “likes” from 46 people, some of whose comments follow the accused’s quote on the page.
97The Crown submits that this quote is proof of the accused’s state of mind, and knowledge of the world of prostitution.
98I am unable to agree with this submission. As the defence submits, the quote appears to be nothing more than a banal cliché whose potential for prejudicial mischief is extremely high.
99Page 5 will not be admitted.
Page 6
100Page 6 used to contain a video, but does so no longer. The text that remains on the page indicates as follows:
“Doug D Bright shared his video. May 11
Its going down where all the strippers at. Make money.
[There then follows a blank box where the video was on display]
Doug D Bright traveling to Jamaica from Toronto Pearson International Airport
GODFATHAZ The new spot by the seaout door night club “MERMAIDS” STRIP CLUB Looking for any female dancers who like to travel and want to shake there shit. Free trip make money 2weeks at a time get your passport in order.Club open up in September inbox me your resume to Doug D Bright”
101The Crown submits that this is a social media recruitment ad, which is probative in that it makes D.M.’s claim to have been recruited over social media more reliable.
102The defence argues that stripping is not illegal, but that this ad would make a jury believe that the accused is the kind of person who would have illegal underworld dealings in the sex trade, which would be very prejudicial.
103I agree with the defence. While I do see this as a recruitment ad, it was not through an ad like this that D.M. made the accused’s acquaintance. Rather, D.M. indicated that she met the accused after he “liked” some of her pictures and they chatted on Facebook. An offer of employment does not necessarily equate to the creation of an exploitative relationship. I see no probative value in this evidence, and significant possibility for prejudicial reasoning.
104Page 6 is excluded.
Page 8
105Lastly, the Crown seeks admission of the ad on page 8, for the accused’s movie “Maried to Da Game”. The ad was posted October 1, 2014, prior to D.M.’s involvement with the accused. In addition to the words on the ad, images show a male in the foreground who resembles the accused, with a smirking woman in the background grasping the accused’s tattooed shoulder. Concerning this movie, the court heard the evidence of Anthony Craparotta before the Crown chose to discontinue its attempts to have evidence of and about it admitted.
106The ad reads as follows:
“COMING SOON! 2015
BASE ON TRUE STORIES
“WHY YOU WANNA TEST A HOE!
SEND HER TO THE TRACK, LET HER FLIP YOUR ROLL”
WHEN I WAS YOUNG, I SWORE I’D NEVER CHANGE
CAUSE I’M ALL ABOUT THE MONEY AND I’M
MARRIED TO THE GAME.
“MONEY-POWER-RESPECT”
TILL DEATH DO US PART
Godfathaz Production
MARIED TO DA GAME”
107According to the Crown, this is a form of recruitment, and is quintessential “lifestyle” evidence, probative of the accused’s view of the value to him of prostitution, and his attitudes about that “game”. It is about money, power and respect. The term “Hoe” itself indicates a tremendous level of disrespect for females, and is probative of how the accused would treat a prostitute under his control.
108My main difficulty with this argument derives from the evidence of Mr. Craparotta, who was hired by the accused to produce the movie. According to the uncontradicted evidence of Mr. Craparotta on the application, the subject of “Maried to da Game” was to be how the accused had gotten his life together. The story line derives from the time period before the accused had gone to jail, found God, and changed his life. It was to be mostly a work of fiction.
109On witness evidence, the movie was a means by the accused of turning his back on “da Game”. In the face of the evidence of Mr. Craparotta, it would, I believe, be unfair to allow the Crown to introduce this advertisement as proof of the accused’s continued adherence to a criminal lifestyle. It may well be that the accused, in his dealings with D.M., was indeed still married to “da Game”, but the only evidence that I have heard concerning this movie is to different effect. If the Crown were permitted to put this ad into evidence, the defence would have to call Mr. Craparotta, and the jury, confused and distracted by collateral evidence on the purpose of the film, might well decide the case erroneously and unfairly.
110The contents of page 8 are not admissible.
Conclusion
111Only contents from pages 2 and 3 of this Exhibit, properly edited, may be put into evidence by the Crown.
The Honourable Mr. Justice A.D. Kurke
Released: December 14, 2016
CITATION: R. v. Bright, 2016 ONSC 7641
COURT FILE NO.: CR-795-16
DATE: 2016-12-14
ONTARIO
SUPERIOR COURT OF JUSTICE
Her Majesty the Queen
– and –
Douglas Bright
Accused
DECISION ON APPLICATIONS
PUBLICATION RESTRICTION NOTICE:
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION BEFORE THE JURY IN THIS CASE SHALL RETIRE TO CONSIDER ITS VERDICT, AND IS SUBJECT TO PUBLICATION RESTRICTION UNDER S. 486.4(1) OF THE CRIMINAL CODE, BY ORDER OF JUSTICE A.D. KURKE, NOVEMBER 22, 2016
A.D. Kurke, J.
Released: December 14, 2016