ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-40000269-0000
DATE: 20121121
B E T W E E N:
HER MAJESTY THE QUEEN
S. Cressman, for the Respondent, Her Majesty the Queen
S. Wilmot, for the Toronto Police Service
RESPONDENT
- and -
ANDINE TAYLOR
D. Midanik, for the Applicant Andine Taylor
APPLICANT
HEARD: November 19 and 20, 2012
Thorburn J.
RULING RE DISCLOSURE OF POLICE REPORTS REGARDING A THIRD PARTY
1. The Issue
[ 1 ] The Applicant, Andine Taylor is charged with twelve firearms offences including possession of a firearm for the purpose of trafficking and transfer of a firearm.
[ 2 ] Taylor does not deny that he was in possession of two firearms at the time of his arrest on April 23, 2010. He states, however, that he took possession of the firearms approximately one week before his arrest and did so because he was told to do so by a person he knew as Kempes. Taylor says Kempes is the street name of a person he knew to be armed and dangerous and whom he feared. Taylor believes Kempes’ real name is Warret Martin.
[ 3 ] Taylor says that, but for this fear of Kempes, he would never have taken possession of the firearms. He also states that he was in the process of handing the firearms back to Philips, who would return them to Kempes when he was arrested.
[ 4 ] Taylor seeks disclosure of a number of documents in the hands of police that pertain to Warret Martin. He seeks this disclosure as he says they are relevant to his defence of duress.
[ 5 ] The Crown has disclosed (on consent and with the consent of the Toronto Police Services) the documents relating to specific incidents involving Martin that Taylor could recall at the time he testified.
[ 6 ] Taylor seeks disclosure of the following additional records pertaining to Warret Martin:
i. a Criminal Record sheet which indicates that Martin has no criminal convictions,
ii. reports of contact with police where no charges were laid, no complainants were made of an offence being committed and/or no cautions were given to Martin, and
iii. synopses of charges laid that were withdrawn or dismissed.
[ 7 ] Taylor claims this information is relevant as even if there were no charges laid or convictions, on the grounds that they are evidence of Martin’s involvement with police that relate to violence, firearms and drugs. He says they are relevant to the reasonableness of his belief that Martin was a person to be feared. Taylor was able to articulate three such incidents at trial.
2. The Process to be Followed
[ 8 ] The two-stage process to be followed to determine whether to disclose third party records is set out in R. v. McNeil , 2009 SCC 3 , [2009] 1 S.C.R. 66.
[ 9 ] The first stage is to determine whether some or all of the records are likely relevant to an issue at trial. If so, they must be produced to the court for review. The likely relevance test is met if,
...there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify. When we speak to relevance to ‘an issue at trial’, we are referring not only to evidence that may be probative to the material issues in the case...but also to evidence relating to the credibility of witnesses and to the reliability of other evidence in the case. (See R. v. O’Connor 1995 51 (SCC) , [1995] 4 S.C.R. 411 at para. 22 )
[ 10 ] If the first stage of the test for disclosure is met, the second stage is for the court to review the records in question to determine whether some or all of the documents submitted to the court for review should be disclosed to the Applicant.
[ 11 ] At this second stage, the judge must review the material in the absence of the parties in order to determine whether the record or part of the record should be produced to the accused. The following factors should be considered in determining whether or not to order production to the accused:
i. the extent to which the record is necessary for the accused to make full answer and defence;
ii. the probative value of the record;
iii. the nature and extent of the reasonable expectation of privacy vested in the record;
iv. whether production of the record would be premised upon any discriminatory belief or bias; and
v. the potential prejudice to the complainant’s dignity, privacy or security of the person. (See: O’Connor at para. 31 )
[ 12 ] Because the accused has not seen the documents, it may be apparent that the documents submitted for review at the first stage are not in fact likely relevant to the case before the court. If so, there is no basis to order production of those documents.
[ 13 ] On the other hand, if the claim for likely relevance is made out, the accused’s right to make full answer and defence will, with limited exceptions, tip the balance in favour of disclosure of the information. The issue really is: if the records had come into the Crown’s file, would they have been subject to disclosure by the Crown?
3. Background Facts
[ 14 ] Taylor knew Kempes while in Jamaica. Taylor moved to Canada from Jamaica in 2004. He first met Martin again in Canada in 2005 or 2006 and maintained contact with him until the time of his arrest. Taylor says the records will show that Martin is a person who has a reputation for violence and other serious criminal behaviour such that his fear of Martin was justified.
[ 15 ] Taylor testified that Martin has a longstanding reputation for violence and inflicting physical harm on others. Taylor testified that as far as he knows, Martin has no legal employment and instead earns his living robbing people and selling drugs. He articulated three specific incidents in his testimony. He also said threats were communicated to his wife’s mother and his sister that if Taylor proceeded to testify against him, his family would be “wiped out.” Although Taylor recalled three incidents of violence involving Kempes, he was not asked and did not say these were the only incidents.
The Police Occurrence Reports
[ 16 ] The Crown concedes that some or all of the records are likely relevant to the defence of duress raised by Taylor at trial and therefore the first stage of the test had been met. The parties agree that the court should review the documents obtained by the Crown that pertain to Warret Martin as set out at paragraph 6 above.
[ 17 ] Upon review of the police reports, it would seem that those reports involving claims of violent behaviour, firearms and drugs and reports that confirm Martin used the nickname Kempes or reasonable facsimiles of same, are likely relevant to the matters at issue at trial. It is agreed that only these documents are likely relevant.
[ 18 ] Police occurrence reports are protected pursuant to the Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. M.56. T he nature and extent of the reasonable expectation of privacy varies depending on the nature of those records. The privacy interest in police occurrence reports is not as great as with other documents such as personal financial information or medical records. The Toronto Police Service raises no objection to the disclosure of those records.
[ 19 ] After considering the nature of the privacy interest in this case and the accused’s right to make full and answer and defence, I am of the view that those records involving claims of violent behaviour, firearms and drugs and reports that confirm Martin used the nickname Kempes or reasonable facsimiles of same, are likely relevant to Taylor’s stated belief that he had reason to fear Kempes. Production of those records is therefore necessary in the interests of justice.
[ 20 ] For these reasons, I find that those police occurrence reports that deal with violence, firearms and drugs and a report that shows that Martin used the nickname Kempsey must be disclosed to the accused. Information identifying the complainants in those reports has been redacted to protect their privacy interests.
Thorburn J.
Released: November 21, 2012
COURT FILE NO.: CR-12-40000269-0000
DATE: 20121121
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: ANDINE TAYLOR Applicant - and – HER MAJESTY THE QUEEEN Respondent
RULING Thorburn J.
Released: November 21, 2012