minicounsel

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

( a ) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

( b ) is guilty of an offence punishable on summary conviction.

Date: 2023 08 22 Court File No.: Brampton 22-31103813

Between:

HIS MAJESTY THE KING

— AND —

JAPDEEP RANDHAWA

Before: Justice P.T. O’Marra

Heard on: August 3, 2023

Reasons for Ruling on Application for Disclosure of Youth Records released on: August 22, 2023

Counsel: I. Singh, counsel for the Crown L. Rados, counsel for the accused Japdeep Randhawa N. Batish, counsel for M.S.S.

P.T. O’Marra, J.:

Introduction

1Mr. Randhawa brought an application pursuant to section 123 of the Youth Criminal Justice Act (YCJA) seeking access and production of records related to the complainant in this matter, M.S.S. Out of an abundance of caution Mr. Randhawa also brought the application pursuant to section 119(2) in case the youth records were within the access periods set out in the section.

2At the outset of the hearing the Crown provided the records in a sealed envelope. After my review of the unredacted records of M.S.S., I ruled based on the date of the records, access to the records was governed by section 123(1) of the YCJA.

3After carefully considering submissions from all parties, the law, and the records, I am persuaded that Mr. Randhawa should have access to the records to make full answer and defence to these serious charges that include attempting to murder M.S.S.

4These are my reasons for granting the application.

Background

5As a result of a dispute in a bar in Mississauga and a struggle over a handgun between Mr. Randhawa and M.S.S., it was alleged that a shot was fired towards M.S.S. by Mr. Randhawa. M.S.S. was not struck by the bullet, however, he suffered non-life-threatening blunt force trauma from being hit with the handgun during the struggle. The handgun and the ammunition were recovered by the police.

6DNA evidence has connected Mr. Randhawa to the scene of the incident.

7The struggle and the firing of the handgun was captured by the bar’s CCTV security system.

8According to the CCTV surveillance, during the initial fight over the handgun, Mr. Randhawa was observed holding the barrel of the handgun during the struggle while M.S.S. was holding onto the handle of the handgun.

9Both Mr. Randhawa’s and M.S.S.’s DNA was located on unfired cartridges recovered by the police at the scene.

10The matter is scheduled for a preliminary hearing on January 15-18, 2024.

11During the disclosure process, the Crown forwarded to the Defence M.S.S.’s redacted youth court record. M.S.S.’s date of birth was also redacted.

YCJA Record Provisions and Caselaw

12Pursuant to s. 123 (1) of the YCJA, where the records sought are subject to an access period which has expired, the Youth Court may order that the records be released to an applicant if the Justice is satisfied that:

(i) the applicant has a valid and substantial interest in the record,

(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.

13Section 123(3) of the YCJA, states that the youth concerned (in this case M.S.S. who is now an adult) should be provided with notice of the application and be given an opportunity to be heard.

14Subject to a consideration and balancing of the privacy interests of a youth, the need of an accused person to make full answer and defence constitutes a valid and substantial interest in the records and provision of the records is in the interests of the proper administration of justice. [1]

Position of M.S.S.

15Counsel for M.S.S., Mr. Batish, argues that M.S.S. has a constitutionally protected privacy interest in the records and that Mr. Randhawa does not have a valid and substantial interest in the record.

Position of Mr. Randhawa

16Counsel for Mr. Randhawa, Mr. Rados, submits that since there are identification issues, self defence and “Scopelliti” evidence in the case, M.S.S.’s testimonial credibility will be the central issue. It is essential and first party disclosure that the Defence be made aware of M.S.S.’s criminal history subject to the disclosure limitations under the YCJA.

Position of the Crown

17The Crown advised that they remain neutral in the application.

Analysis

18The unredacted records were provided. The first document is 16 pages and is named an “Occurrence Details” for a Peel Police Occurrence #PR130624977. This pertains to M.S.S.’s arrest on November 5, 2013, when he was 17 years old for the following offences:

(i) Possess a weapon dangerous to the public peace, contrary to s. 89 of the CCC;

(ii) Uttering threats to cause death, contrary to s. 264.1(1)(a) of the CCC;

(iii) Imitation Firearm-Use while committing offence, contrary to s. 85(2)(a) of the CCC;

(iv) Assault with a weapon, contrary to s. 267(a) of the CCC;

(v) Breach of probation, contrary to s. 137 of the YCJA.

19The Occurrence Details alleged that on October 29, 2013, M.S.S. was a student at a high school in Mississauga. On this occasion he drove up to the victim, and other students, and began yelling at the victim. M.S.S. claimed that he had a “beef” with the victim and that he was a “snake and a rat.” During the course of the argument M.S.S. retrieved a black pistol from the center console of his car and pointed it at the victim and said, “follow me if you want to see what happens to snakes.” M.S.S. drove away. The victim contacted police. While the victim and his friends believed that the handgun was real, it turned out that the handgun was a BB gun. He was arrested on November 5, 2013.

20The second document is called an “Offence Detail Report” for M.S.S. The document lists the date that M.S.S. was charged with the aforementioned charges, and that he was convicted of Uttering Threat and Imitation Firearm and the disposition of those offences on February 5, 2015.

21There are other matters listed when M.S.S. was an adult and do not include youth records. Given that, I make no comment upon them and leave it to the Crown to review those records and disclose what may be relevant in accordance with their obligations.

22The third document is the CPIC printout for M.S.S. It contains two entry dates for convictions. On February 5, 2015 M.S.S. was convicted in the Brampton Youth Court for “uttering threats”, “use of the imitation firearm during commission of an indictable offence” and “fail to comply with sentence”. These convictions were in relation to M.S.S.’s arrest on November 5, 2013. The other entry date contained in the third document was when M.S.S. was convicted as an adult. I would expect that would be disclosed to the Defence through the normal disclosure process.

Does Mr. Randhawa have a valid and substantial interest in these records or part?

23I have concluded that Mr. Randhawa has demonstrated that he has a valid and substantial interest in the three records. The allegations that he is facing involve a handgun. Moreover, the victim, M.S.S. was found guilty or pleaded guilty 10 years ago for use of an imitation firearm and threatening. I agree that the record is dated, however, that does not trouble me. It is the nature of the offence that is relevant in the records not its distance proximity.

24M.S.S.’s privacy interest in the records is also diminished by the fact that M.S.S. has incurred an adult conviction in 2022. The cases provided by counsel do not assist me in my conclusion. Those involved media accessing private records such as pre-sentence reports. That has no bearing on this application.

25But it is worth noting that M.S.S. will be protected by the publication ban that will be undoubtably ordered by the preliminary hearing judge.

26The onus has been met on this prong. Mr. Randhawa has demonstrated that the records may add to the defence narrative and theory of who had a handgun and why.

27However, the ultimate use of any record will be left up to the preliminary hearing judge.

Is it necessary for access to be given to these records or part in the interest of the proper administration of justice?

28The test required a weighing of the public interest in maintaining M.S.S.’s privacy interest in the records and Mr. Randhawa’s request to access these records in an effort to assist the defence. The less relevant the records, the more likely the youth’s privacy rights would prevail. [2]

29In this case M.S.S.’s privacy interests do not triumph over Mr. Randhawa’s constitutional right to make full answer and defence.

30The factors that I have considered and balanced include the seriousness of the jeopardy that Mr. Randhawa is facing, the nature of the undisclosed material, the truthfulness of the material and its potential impact on the character and credibility of M.S.S. I also consider that M.S.S. is the key witness in this matter and at the preliminary hearing he is subject to cross-examination. Despite the order to grant access that I am making, there remains restrictions on the publication and dissemination contained in the YCJA and the CCC.

Is disclosure of the record or part or the information in it prohibited under any other Act of Parliament or the legislature of a province?

31The simple answer is “no.”

Conclusion

32The Occurrence Details – This record should be disclosed. However, there is quite a lot of personal information regarding the numerous witnesses. I urge the Crown to redact any of the following information- including but not limited to a witness’s address, telephone numbers, email addresses, driver licence numbers, employer’s names, place of birth, citizenship, port of entry, immigration date, native status and physical description.

33I order that only the synopsis of the occurrence be accessed.

34Finally, at pages 15 and 16 under “Supplementary Reports (1)” there is a reference to another young person that was charged. I will refer to that youth as C.S. C.S. has a privacy interest in the record. However, since I have been advised by the Crown that this youth is not a witness in these proceedings, I am ordering that any reference to C.S. be redacted.

35Offence Detail Report – only the two youth convictions should be accessed. I will leave it the Crown to further review the record and disclose what may be relevant in accordance with their obligations.

36CPIC – the three youth court entries on February 5, 2015 should be accessed. I would expect that the adult entry will be disclosed as first party Crown disclosure.

Released: August 22, 2023 Signed: Justice P.T. O’Marra

[1] R. v. Musson, 2022 ONCJ 365, at paras. 16-18 [2] R. v. D. (M.), 2015 ONSC 2150 at para. 51