COURT FILE NO.: CR-795-16 DATE: 2017-01-20 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen – and – Douglas Bright Accused

COUNSEL: Elise Quinn, for the Crown Terry Waltenbury, for the accused

HEARD: January 10, 2017

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 APPLICATION

A.D. KURKE, J.

Overview

[1] The accused is charged with: procuring the sexual services of D.M. for consideration (section 286.3(1) of the Criminal Code), recruiting D.M. with the intent to exercise control over her for the purpose of exploiting her (s. 279.01(1)), receiving a financial benefit from the exploitation of D.M. (s. 279.02(1)), knowingly advertising D.M.’s sexual services for consideration (s. 286.4), and receiving financial benefit from D.M.’s prostitution (s. 286.1(1))(the “pimping charges”), sexual assault (s. 271), and possession under (s. 354(1)(a)). The Crown applies to introduce evidence of the accused’s discreditable conduct at the accused’s jury trial.

Background

[2] Initially, I heard an application in November 2016 relating to this issue, and made rulings concerning several books of exhibits on that application (R. v. Bright, 2016 ONSC 7641). The parties deferred my consideration relating to 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. While some agreement was achieved, the parties still require a ruling on some aspects of the evidence.

[3] Crown counsel has pruned the original exhibits, and submitted briefer versions for consideration. These were themselves unfortunately not made exhibits, but I will refer to the redacted versions in the manner suggested by counsel to the accused, as Exhibits “E1” and “G1”.

[4] Counsel to the accused has conceded the admissibility of Exhibit G1. That exhibit is made up of images of females holding, fanning or handling stacks of paper money. I am uncertain what prejudice is inherent in such pictures. On the other hand, these photographs are at least relevant to corroborate the account of complainant D.M., who has claimed that the accused showed her such pictures to convince her that she could make a lot of money in prostitution. They are therefore significantly probative of the actus reus of at least the first two counts on the Indictment: procuring and recruiting.

[5] Crown and defence disagree with respect to aspects of Exhibit “E1”. This volume consists of 16 pages of images or slogans allegedly posted to Instagram by the accused, comments about the posts by “dougbright” and others, and indications by other online identities that they “like” the posting. During the hearing, the Crown indicated that she was not seeking admissibility of pages 3 and 10 of Exhibit “E1”.

Legal principles

[6] I repeat the relevant guiding legal principles from my earlier decision (Bright, at paras. 46-48, 52):

Evidence 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 SCC 769, at para. 41; R. v. J.A.T., 2012 ONCA 177, at para. 51.

To be caught under the exclusionary 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, at para. 34; R. v. Mahalingan, 2008 SCC 63, at para. 160.

“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 ONCA 3187, 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; R. v. Shearing, 2002 SCC 58, at para. 64; J.A.T., at para. 52.

If 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 SCC 311, at para. 69; R. v. R.O., 2015 ONCA 814, at paras. 31-35.

The posts in Exhibit “E1”

Pages 1-2, 5-6, 8-9, 12-14

[7] The posts on these pages advance the idea of women selling themselves sexually for money, generally under the guidance or control of a pimp. Praise is reserved for prostitutes who bring in a lot of money, and scorn for those women who do not engage in prostitution, but complain about their poverty.

[8] Page 12 has a photograph of a naked male overlaid with the text “First of the month coming ladies! You want this rent money or nah?” Associated to the photograph is the posting: “dougbright Oh it’s hard out here for a pimp trying to get money for the rent. Lmao”. Counsel agree in submitting that “lmao” is a text acronym for “laughing my ass off”. The post thus fosters the idea of prostitution as a means of earning money for necessities. The “dougbright” comment adds a pimp’s needs to the mix, implying that the pimp will get his or her money from the work of the prostitute. Arguably, this is an admission by “dougbright” that he is a pimp.

[9] In a similar spirit is page 1, an image of a hand holding a fat stack of paper currency, beside which is the post: “dougbright it’s hard out here for a pimp trying to get this money for the rent”. Pimping, says the post, is a means of making large quantities of money to pay the bills. The defence does not contest the admissibility of this post.

[10] Page 2 is a photograph of the accused’s head beside D.M.’s. The associated post reads: “dougbright I got money on my mine every penny every dime…”. Complainant D.M., of course, will allege that she worked for the accused as a prostitute. The post could reasonably be interpreted to mean that the accused sees D.M. as a means of making money. The defence does not contest the admissibility of this post.

[11] Page 13 is an image of text stating : “I HATE BROKE HOES WIT RICH ATTITUDE!!!” along with the posting “dougbright I really hate. #brokehos”. Page 14 is another image of text stating : “no female should/ be broke some of/ y’all sitting on/ atleast $60 dollars/ worth of pussy/hustle bitch hustle”, with “/” here indicating line divisions. Alongside is the posting: “dougbright Make dat money bitch. #marriedtothegame”. The context in the two posts sets up prostitution as a means for women to avoid penury, and adds scorn at a woman’s refusal to acknowledge or recognize that fact. Women’s sexuality will permit them a livelihood by “hustling”, engaging in prostitution. “dougbright” endorses the sentiments in the accompanying postings.

[12] In a similar post, page 6 is a cartoon image of comedian Redd Foxx configured as a pimp with rings on his fingers, and holding a stack of paper money. At the bottom of the image, in parodic use of a term from the comedian’s television show Sanford and Son, are the words “Hustle or be Broke Dummie”. The accompanying post reads: “dougbright Hustle Hard.” This once again is relevant to “dougbright”’s encouragement towards prostitution from the image of a pimp.

[13] Page 5 is a photograph of a female hand holding a folded stack of paper currency. The associated post reads: “dougbright My girl Haley T. Irene nos how to bring in the stacks! #bigpimpin”. The post is extremely probative of the poster’s state of mind or motivation in his role as pimp, and his appreciation for “Haley’s” talents.

[14] Page 8 is a photograph of five bundles of paper currency, beside which is the post: “dougbright Racks {on} Stacks Big Pimpin….#deviousone #moremoney #getpayed”. This post associates the idea of large quantities of money with “Big Pimpin”. In other words, running a prostitute is lucrative. The defence concedes the admissibility of this post.

[15] Page 9 appears to be a photograph of the hands of two different women holding fanned stacks of paper money. Beside it is the post: “dougbright I’m so proud of my girls #getmoney #getpaid…” In context, bundles of money indicate profits from prostitution. “dougbright” expresses pride at prostitutes (“my girls”) bringing in a lot of money. Of note in this post is the follow-up posting of “witchywoman83”: “show me the way lol”, and the response: “dougbright Come see me”. As in the case of D.M., “witchywoman83” is arguably attracted to the prospect of making a lot of money as a prostitute, and “dougbright” is prepared to assist. The defence concedes the admissibility of this post.

Pages 4, 7, and 11

[16] In these postings, the violent control of prostitutes by pimps is the theme.

[17] Page 4 announces, in cartoonish lettering, “I WEAR MY SCARS LIKE THE RINGS ON A PIMP. / ATMOSPHERE”. The posting that accompanies the text image reads: “dougbright She said.. I said, don’t make me hurt my hand…”. The “dougbright” post, in the context of the text image, graphically describes the backhanded violence to be inflicted by a pimp on a mouthy prostitute.

[18] Page 7 hijacks a Spiderman comics frame of a distressed Peter Parker holding his right hand in his left, while circles radiate outwards from the right hand. Captions read, “MY SLAP A HOE SENSES ARE TINGLING”, clearly a reference to Peter Parker’s “Spidey Senses”. The posting chimes in: “dougbright Slap a ho…”. Again, there is no mistaking the message, as in the earlier posting, as a warning to prostitutes about the treatment they can expect if they act up.

[19] Page 11 contains the graphic text “BITCHES BE TRIPPIN’ …OK, MAYBE I PUSHED ONE.” Alongside is the post: “dougbright Ok maybe.” In this context, as on page 14 (“hustle bitch hustle”), and in the context of D.M.’s anticipated testimony that she was the accused’s “bitch”, “bitch” appears to signify a prostitute. The graphic text and the post indicate violence to a prostitute, albeit of a minor nature. What is more significant, in the context of this case, is that D.M. will allege that the accused pushed her on at least one occasion in their working relationship. This posting is relevant and highly probative.

Pages 15-16

[20] Page 15 has images of first the buttocks of one scantily clad female standing before a reclining mostly nude male, and then the buttocks of two scantily clad females standing before the same male. The image’s caption reads: “New Pussy Ain’t Better Than Loyal Pussy/ But / Nothing Beats Loyal Pussy Bringing You New Pussy”. Beside the images are the posting: “dougbright Bring it to me.” While the sexual content is obvious, any linkages to prostitution or pimping can only be arrived at through speculation. I cannot find probative value in this posting.

[21] Page 16 is a post relating apparently to the accused’s proposed movie, “Married to da Game”, which I discussed in my prior ruling. This posting contains the photo associated to that movie with the caption “Godfathaz Production/ Married to da Game”, and the posting: “dougbright Movie 2015 Married To Da Game photo by illvibes model angle.#godfathazforever”. For reasons explained in my prior ruling, I excluded similar imagery in a different medium, and the Crown has indicated that it will not call evidence about the movie itself. Those determinations eliminate any potential probative value in this derivative advertising posting.

Analysis

[22] Considering the admissibility of Exhibit “E1”, I exclude pages 3 and 10, as the Crown is not seeking their admissibility. Additionally, the accused does not contest pages 1 and 2, and concedes that pages 8 and 9 are admissible. I also exclude from consideration here pages 15 and 16, as I have been unable to find any probative value in those postings.

[23] Considering the remaining contested pages, I note at the outset that probative value includes the strength of the evidence, the extent to which it support the inferences it is presented to support, and the extent to which the matters it proves are at issue in the proceedings: R. v. Ansari, 2015 ONCA 575, at para. 110.

[24] Central to the constellation of the pimping charges on the indictment is an intent to derive a financial benefit from the prostitution of D.M. or knowledge that her prostitution is the source of the financial benefit.

[25] Exercise of control over D.M. and her exploitation are also elements of several of the offences on the indictment. Violence or the use or threat of violence or force are integral to the exercise of control and make their way into the definition of “exploitation” in s. 279.04 of the Criminal Code, a definition intended for application in several of the charges before the court.

[26] Most of the postings in Exhibit “E1” (those at pages 1-2, 5-6, 8-9, 12-14) advance the association of prostitution and the making of large amounts of money for prostitute and exploiter. Such evidence is relevant to the accused’s state of mind and motivation in his association with D.M. That association is advanced as a positive thing, by image and accompanying post. A properly instructed jury could use that motive/state of mind to assist in determining whether the accused had the requisite intent to receive financial benefit from D.M.’s prostitution, and whether he did the act at all: R. v. D.S.F., 1999 ONCA 3704, at para. 23.

[27] Likewise, the postings at pages 4, 7, and 11 of Exhibit “E1” favourably associate violence with the relationship between exploiter and prostitute. Once again, this association is relevant to the accused’s state of mind, and probative of his intent. A properly instructed jury could use that state of mind to assist in determining whether the accused intended to exercise control over D.M. or exploit D.M.

[28] Further, the “dougbright” posting “Ok maybe” on page 11 is corroborative of complainant D.M.’s account that the accused pushed her, and therefore additionally probative as capable of confirming D.M.’s account.

[29] The posting by “witchywoman83” on page 9 is also relevant in the context of the allegation that the accused recruited D.M. into prostitution through an approach on social media. Wichywoman83’s posting, and the “dougbright” response, is probative in that it will allow the jury to see how such things are done, thus further confirming D.M.’s account.

[30] In terms of prejudice, there is a concern that from the constellation of themes in these postings, that a jury would consider that the accused is the type of person who would commit the offences charged, or that he is a bad man who needs to be punished for the views he holds or encourages, independently of any probative value inherent in the posts. In my view, the relevance and high probative value of the posts outweighs the prejudice, which can be limited or eliminated by appropriate instructions.

[31] However, the accused submits that the bulk of, if not all of, these postings were humorous in nature, and were therefore not intended to be taken seriously. The “lmao” acronym on page 12 is a good example: it is intended to demonstrate the humorous intent. As such, argues the accused, they are of tenuous probative value, but highly prejudicial. In such circumstances, they must be excluded.

[32] I do not agree. Quite simply, there is no reason to presume that something is less probative, simply because its author or commentator finds it or intends it to be funny. A humorous posting, or approval of such a posting, demonstrates a level of comfort with the ideas that are advanced in the posting, for example: prostitution and the making of money for pimp and prostitute, and violence and control of a prostitute by a pimp. Even if the associated ideas are expressed comically, they remain ideas that are associated in their expression, and show something about the mind that associates them or approves of the association. Repeated postings that associate the same themes in different ways raise the association beyond its immediate humorous context, to a level that speaks more clearly about how a person thinks. In this way are even humorous postings of significant probative value.

[33] It appears that the defence has conceded pages 1, 8, and 9 of Exhibit “E1” because of the images of stacks of money in women’s hands. Such photographs will figure in the evidence of D.M., who is expected to testify that the accused showed her such images during his recruitment of her into prostitution. The photograph on page 2 is conceded, and shows the association of the accused and D.M. However, I am completely satisfied that these images may also serve the more general probative purposes that I have described above, to assist the jury in determining whether the accused possessed the requisite knowledge or intent to make out the pimping charges, or was motivated to commit them.

[34] The accused complains that page 5 is prejudicial, as it praises the money-making skills of one “Haley T. Irene”, apparently a prostitute, who is not complainant D.M. It is submitted that the accused’s reference to another prostitute is highly prejudicial, as it potentially portrays the accused as pimping on a larger scale than alleged by the Crown. While such a submission has merit, that merit is somewhat attenuated by the concession that page 9, with its post: “dougbright I’m so proud of my girls” [emphasis added] is admissible. The same argument could have been levelled at page 9, but was not. In the case of pages 5 and 9, as in the case of the other admissible postings, while there is prejudice inherent in such evidence, it is outweighed by the probative value, and can be limited by an appropriate instruction.

Conclusion

[35] For the above reasons, while acknowledging the general exclusionary rule concerning such evidence, and having weighed the probative value against the prejudicial effect, I am satisfied that:

a. all of the photographs in Exhibit G1 are relevant and admissible at trial; b. all postings in Exhibit E1 are relevant and admissible, with the exceptions of pages 3, 10, 15, and 16.

[36] As discussed during the course of the hearing, to minimize any incidental prejudice, the Crown is to edit the text in the postings to eliminate online identities of persons who “like” the posting, and of additional posters, other than the accused and other than “witchywoman83”. This will eliminate the potential for prejudicial effect from extraneous material in the postings.

The Honourable Mr. Justice A.D. Kurke

Released: January 20, 2017