R. v. B., 2013 ONCJ 205

Her Majesty the Queen v. A.B., a young person [Indexed as: R. v. B. (A.)] Ontario Reports Ontario Court of Justice, Pringle J. January 4, 2013 115 O.R. (3d) 235 | 2013 ONCJ 205 Case

Summary Criminal law — Young offenders — Youth records — Accused charged with 2010 murder — Crown alleging that murder wasgang related — Crown applying under s. 123 of Youth Criminal Justice Act for access to records of youth who was convicted ofallegedly gang-related 2007 assault to assist its expert in showing that accused were associated with gang members whocommitted gang offences in territory of rival gang — Application dismissed — Access not necessary as Crown had access torecords of adults who committed assault with youth — Police information cards indicating that youth wore gang colours on sixoccasions not relevant — Crown's interest in gang-related information not outweighing youth's privacy interest in his records —Youth Criminal Justice Act, S.C. 2002, c. 1, s. 123.

The accused were charged with murder. The Crown alleged that the murder was gang related and intended to adduce expert evidence toshow that the accused associated with known gang members who committed gang-related offences in the territory of a rival gang. Inorder to assist its expert, the Crown applied under s. 123 of the Youth Criminal Justice Act for access to the records of B, a youth whowas convicted of a 2007 assault that was allegedly gang related. Held, the application should be dismissed.

Access to the records was not necessary "for the proper administration of justice" as the Crown had access to the records of adults whocommitted the assault with B. Moreover, there was virtually no evidentiary record showing the nature of B's alleged gang associationsince 2007, or how that gang involvement might be linked to an association with the accused in 2010. Manix cards, police investigativereport cards, showing that B was wearing a gang colour on six occasions were not relevant. None of the Manix cards revealed anyconnection to the accused.

The Crown's interest in gang-related information did not outweigh B's privacy interest in his records. Cases referred to J.D. (Re), [2009] O.J. No. 6384, 2009 ONCJ 505; L. (S.) v. B. (N.), (ON CA), [2005] O.J. No. 1411, 252 D.L.R.(4th) 508, 196 O.A.C. 320, 195 C.C.C. (3d) 481, 12 C.P.C. (6th) 34, 138 A.C.W.S. (3d) 665 (C.A.) Statutes referred to Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 [as am.] Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.

M.56 [as am.] Youth Criminal Justice Act, S.C. 2002, c. 1, s. 123 APPLICATION by the Crown for access to youth records. [page236] M. Misener, for Crown.

C. Granek , counsel for the youth A.B. PRINGLE J. : — 1. Introduction and Overview [ 1 ] Chael Mills and Lavare Williams are charged with first and second degree murder respectively in the death of M.C. on May 3, 2010. The Crown's theory is that the killing was gang related, and that both Mr. Mills and Mr. Williams were members of a street gang, the M.O.B. Klick, which is a subset of the Vaughan Road Bloods. [ 2 ] I was the preliminary inquiry judge in this matter and committed Mr. Mills and Mr. Williams for trial on November 29, 2011.

Their trial in the Superior Court of Justice is scheduled to begin on January 7, 2013. In support of its case at trial, the Crown intends to adduce expert evidence in order to show that Mr. Mills and Mr. Williams associated with known gang members who committed gang-related offences in the core territory of the Vaughan Road Bloods. [ 3 ] In this application, the Crown seeks access to youth records under s. 123 of the Youth Criminal Justice Act , S.C. 2002, c. 1 (" YCJA "). This

section states that where the period for access has expired, a youth court judge may order access if the judge is satisfied that: 123(1)( a ) . . . (

i) the person has a valid and substantial interest in the record or part, (ii) it is necessary for access to be given to the record or

part in the interest of the proper administration of justice, and (iii) disclosure of the record or part or the information in it is not prohibited under any other Act of Parliament or the legislature of a province[.] [ 4 ] Specifically in this application, the Crown seeks access to the records of a youth, A.B., whom the Crown says was a member, or at least an associate, of the gang.

The Crown submits that there is a substantial public interest in permitting the Crown's expert witness to consider A.B.'s records showing he was found guilty of an assault that occurred on March 14, 2007 along with two other alleged gang members. In addition, the Crown seeks access to six Manix 208 cards relating to A.B. from 2005 to 2008 that show his association with another gang member and show that he wore gang colours. The Crown submits that these records will assist its expert in showing [page237] that Mr. Mills and Mr. Williams were associated with gang members of the M.O.B.

Klick who committed gang offences in the Bloods' territory. [ 5 ] On behalf of A.B., Mr. Granek resists the application on all fronts, submitting that access is not "necessary"; that there is no "substantial" interest in the records; and also that disclosure is prohibited under the Ontario Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31 as well as the Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c.

M.56. [ 6 ] I agree that the Crown has a valid interest in considering gang-related information and gang-related associations in a case such as Mills and Williams. The question is whether that interest is sufficiently substantial and necessary to justify access to youth court records that otherwise would be inaccessible to the Crown. In relation to A.B.'s records, I have determined that it is not. 2. A.B.'s Finding of Guilt for Assault on March 14, 2007 [ 7 ] The police synopsis for this incident indicates that the victim was chased by four males. A.B. caught him and held him till the others arrived.

One male then struck the victim with a broom handle and a stick, and another stabbed him twice, telling the victim that he had better not see him in that area again. According to the Crown, the expert will testify that this was a gang-related crime in core gang territory.

By demonstrating that the males and A.B. committed real gang crimes in core gang territory, the Crown seeks to strengthen the inference that when Mills and Williams associated with them, their association was gang related. [ 8 ] The records of the males who struck and stabbed the victim are available to the Crown: the first was found guilty of assault with a weapon and was sentenced to three months' custody on top of four months of pre-trial custody. The second was found guilty of assault causing bodily harm and was sentenced to 344 days of pre-trial custody plus 18 months of probation.

At the trial of Mills and Williams, the Crown's expert will be able to review these records and rely on them in support of his opinion that the males committed the crime for gang-related reasons in the territory of the Vaughan Road Bloods. [ 9 ] A.B. was found guilty of simple assault in relation to this incident and was sentenced to 18 months' probation. The Crown seeks access to his record in order to show the larger parameters of the gang. [page238] [ 10 ] I don't find that A.B.'s record is necessary for the Crown to prove that this was a gang-related crime.

The incident itself and the involvement of the other two males are already available to the Crown. I'm not convinced that the notion that "more is better" is sufficient to justify accessing A.B.'s youth records in this instance. [ 11 ] Moreover, there is little to suggest that A.B.'s involvement will enhance the Crown's proof that this was a gang-related crime. A.B. received a sentence of probation for a simple assault, suggesting that his involvement was not viewed as seriously as that of the other two. [ 12 ] The incident also dates back to 2007, three years prior to the killing in which Mr. Mills and Mr.

Williams are charged. In this

application, there is virtually no evidentiary record showing the nature of A.B.'s alleged gang association since that time, or how thatgang involvement might be linked to an association with Mr. Mills or Mr. Williams in 2010. 3. The Manix 208 Cards [13] The Crown acknowledges that the probative value of the Manix cards is not great, but says there is nonetheless some relevance toshow that on six occasions, A.B. was wearing the Bloods' colour (red).

In 2005, he was also associating with L.D., someone whom theCrown says was a gang member. [14] I find the relevance of these cards is remote in time from the murder with which Mills and Williams are charged in 2010. Even themost recent was in 2008, more than two years prior to the killing. Since then, the evidence of association between A.B. and Mr. Mills orMr. Williams is scant: on one occasion on November 20, 2009, A.B. was seen loitering with Mr. Mills at a Pizza Pizza location; a fewdays later on November 24, 2009, he was seen loitering with both Mr. Mills and Mr.

Williams. [15] The weight of the information in relation to gang involvement in the six Manix 208 cards is slim. At most, they amount to A.B.wearing a red shirt or red hoody, or carrying a red bandana. [16] Finally, none of the Manix 208 cards reveal any connection to Chael Mills or Lavare Williams. A.B.'s association with L.D. amountsto one occasion, five years prior to the killing. 4. Analysis [17] In L. (S.) v. B. (N.), (ON CA), [2005] O.J.

No. 1411, 252 D.L.R. (4th) 508 (C.A.), the Ontario Court of Appealexplained that the access provisions of the Youth Criminal Justice Act were designed to [page239] maintain tight control over access toyouth court records.

At para. 42, the court held: Generally speaking, access to those records [in ss. 117 through 129 of the YCJA] is limited to circumstances where the efficient operationof the young offender system, or some other valid public interest is sufficiently strong to override the benefits of maintaining the privacyof young persons who have come into conflict with the law. (Emphasis added) [18] Accordingly, I must assess both the strength of the Crown's interest in the records as well as the privacy interests of the youngperson. [19] In this case, Mr.

Granek made persuasive submissions regarding the importance of privacy for A.B., and drew my attention to thecase of J.D. (Re), [2009] O.J. No 6384, 2009 ONCJ 505, where Katarynch J. expressed concern about the "array of eyes" that wouldview the records if they were released. Here, Mr.

Granek noted that any reference to A.B. in open court in the context of his alleged ganginvolvement some years earlier could result in stigmatizing him in the present day, and interfere with his rehabilitation contrary to theprinciples of the YCJA. [20] In this regard, I believe the Crown has fairly proposed a means by which some measure of privacy could be preserved for A.B., byvirtue of the Crown's agreement to use non-identifying initials for any reference to A.B. in the records. Thus, he could be referred to as a"John Doe" using initials such as "J.D." to safeguard his privacy as much as possible.

However, this would not entirely eliminate anyprivacy concerns, since A.B.'s image in, say, YouTube videos available to the Crown, would still be linked by the expert to his youthrecords and the expert opinion that he was associated to the M.O.B. Klick. [21] In any event, I believe that the Crown's application must fail on the basis that A.B.'s records do not disclose a sufficiently substantialinterest to warrant overriding his privacy interest in them. [22] In relation to the incident in March 2007, the Crown has access to records other than A.B.'s to show that alleged associates of Mr.Mills and Mr.

Williams were involved in this gang-related crime in core gang territory. A.B.'s involvement does not add much.Moreover, in the absence of evidence showing A.B.'s continuing gang involvement or meaningful connection to Mr. Mills or Mr.Williams, it is difficult to find that A.B.'s involvement in this 2007 incident advances the Crown's case in the 2010 killing. [page240] [23] In relation to the Manix 208 cards, the same concerns arise with respect to remoteness, slim weight and lack of any meaningfulconnection to Mr. Mills and Mr.

Williams. [24] In these circumstances, I cannot find that there is a substantial Crown interest that warrants overriding A.B.'s privacy in his youthrecords. [25] Since that is sufficient to dispose of the application, I do not propose to deal with Mr. Granek's alternative argument that disclosureis prohibited under the Ontario Freedom of Information and Protection of Privacy Act, as well as the Municipal Freedom of Informationand Protection of Privacy Act. [26] The Crown's application is dismissed. Application dismissed. End of Document