ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13660/14

DATE: 2015/08/20

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHARON BAKSH

Defendant

Jinwon Kim & Michael Malleson, for the Crown

Paul Burstein & Anne Marie Morphew, for the Defendant

ANGELA BIANCO
Third Party

MINISTRY OF COMMUNITY SAFETY & CORRECTIONAL SERVICES
Third Party

Dawne P. Way, for Third Party Witness Angela Bianco

Hera Evans, for Third Party Ministry

HEARD: August 18, 19 & 20/ 2015

Justice B. Glass

THIRD PARTY RECORDS APPLICATION BY DEFENDANT

[1] The Defendant has brought a third party records application regarding jail records, probation and parole records, telephone records, Children's Aid Society records, and drug and alcohol treatment records of Pinewood Centre for Addictions and Durham Regional Police occurrence reports related to evidence that is expected to be tendered at trial from a jailhouse informant, Angela Bianco.

[2] Ms. Bianco was an inmate at Central East Correctional Centre serving a sentence when Ms. Baksh was being held in custody at the institution. The Crown intends to call Ms. Bianco to testify about statements given to her by Ms. Baksh relating to the murder of Ms. Rusnell, the deceased in this second degree murder trial.

[3] The first phase of this application is the determination of the likely relevance of the records to the issues involved in the trial of Ms. Baksh. The Crown has provided the full Durham Regional Police occurrence report file, but some information is unnecessary. On consent, the report and notes that are germaine will be provided . In addition, the Pinewood records amounted to one page and both sides agreed that there was no need to make a determination for that record.

[4] I was satisfied that likely relevance for production to the court for review was established with respect to the Central East Correctional Centre, Parole & Probation, telephone and Children's Aid Society records. The intended witness, Ms. Bianco, is alleged to be a jailhouse informant who must be viewed with extra caution. The history of jailhouse informants providing evidence that have led to wrongful convictions has caused courts to take extra efforts to scrutinize evidence from witnesses who might be in that category. The evidence to be tendered through Ms. Bianco is admission evidence that the Defendant confessed to the killing of Ms. Rusnell. Credibility of witnesses will be critical in Ms. Baksh’s trial.

[5] Having reviewed those records, I have provided a summary for counsel to review and to make additional submissions.

[6] At Stage 2 of the Application, the court addresses 5 factors when balancing the competing rights of Ms. Baksh and Ms. Bianco as well as other inmates at Central East Correctional Centre. Those 5 factors were set out in paragraph 31 of R. v. O’Connor, 1995 51 (SCC), [1995] SCJ No. 98. They are:

[i] the extent to which the record is necessary for Ms. Baksh to make full answer and defence;

[ii] the probative value of the record in question;

[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;

[v] the potential prejudice to the complainant’s dignity or security of the person that would be occasioned by production of the record in question.

[7] The Defence wants all the information they can have in order to make a complete defence to the allegations expressing concern that Mr. Gould might be a third party suspect and that Ms. Bianco is an untrustworthy jailhouse informant.

[8] The Crown is not taking a position on the application.

[9] The Ministry of Community Safety and Correctional Services, through Ms. Evans, expresses concerns for disclosure of information about other inmates.

[10] Ms. Bianco through her counsel, Ms. Way, basically does not wish to see non-necessary information released with this application.

[11] The Children's Aid Society records do not reveal any information related to Ms. Bianco and her evidence regarding alleged admissions by Ms. Baksh to the murder of Ms. Rusnell so that none of that file will be provided.

[12] In this case, Ms. Bianco is to be called as a Crown witness regarding alleged admissions by Ms. Baksh regarding the death of Ms. Rusnell. The two women were in the Central East Correctional Centre in the same inmate range when the comments are alleged to have been made. There is a concern by the Defence that Ms. Bianco fabricated the admissions for some favourable consideration by the police and that the information sought will disclose such.

[13] Such record information would have significant importance to a Defendant making a full answer and defence to the charges she faces.

[14] The probative value of such records would be very great. Ms. Bianco is in the category of being a jailhouse informant. Courts are to be very careful about the receipt of evidence from such informants because of the extent of errors made in cases historically. The Kaufman Commission looked at the Guy Paul Morin case for such an experience.

[15] The records requested by Ms. Baksh do fall within the category of private information that ought not to be released without a court order after parties have had an opportunity to advance submissions supporting their positions. For example, the inmate records from Central East Correctional Centre contain some information relating to other inmates who were located in the same inmate range as Ms. Bianco and Ms. Baksh. There was an issue about whether each of those persons should be served with a request for information containing their names. I am persuaded that their names alone without further identification information could be provided at this time because of the importance of the issues at play here in the second degree murder trial of Ms. Baksh. The Defence is content with that limited amount of information. I might add that if more information about those persons were requested, such as address and phone contact information, another application will be required. Identification numbers for persons at the inmate range of Ms. Baksh and Ms. Bianco have been redacted.

[16] There is no discriminatory bias or belief involved with the records and this application.

[17] Potential prejudice to the dignity or security of the person involved in the application, in this case Ms. Bianco and other inmates on the same range at the Central East Correctional Centre as Ms. Baksh and Ms. Bianco, is minor. The Central East Correctional Centre is a public custodial facility for persons in custody either awaiting trial, sentence hearing or serving a sentence. I am satisfied that the probative value of the information to be provided to the Defence outweighs potential prejudice to the persons involved.

[18] There will be an order to provide Central East Correctional Centre information showing the range or ranges on which Ms. Baksh and Ms. Bianco were located, the names only of other inmates on the range involved without OTIS numbers, visitor and zopiclone medical records for Ms. Bianco, and Parole & Probation records only referring to Detective Leipsig contacting about Ms. Bianco being a police witness. There will be redactions of identification numbers for persons in the institution.

[19] With respect to the phone records, the records for the cell phone attributed to Ms. Bianco shall be provided with the last two digits of all other numbers being redacted. I am not persuaded that subscriber records and tower locations are necessary. The phone records cover the period of June 18 to June 26, 2013 when Ms. Baksh and Ms. Bianco were at the Central East Correctional Centre. June 26th was the date of the KGB statement provided by Ms. Bianco. Outside those dates is not relevant to this trial.

[20] No one shall attempt to decipher a redacted telephone number or attempt to call a redacted telephone number except as follows:

[i] the Applicant’s counsel or the Crown or anyone retained to assist them may attempt to cross-reference the redacted telephone numbers in the telephone records by comparing them to any other telephone number they may have in their possession;

[ii] if the cross-referencing generates a match, the Applicant’s counsel or the Crown may request the court to confirm whether the redacted two digits of a particular telephone number in the telephone records are the same as the last two digits of a telephone number in counsel’s possession;

[iii] if the Court confirms that the last two digits match, the Applicant’s counsel of the Crown may use the full number for any investigative purpose related to this matter, and the subscriber name for that number, if it is available in the telephone records, shall be produced and subject to the same conditions as all other records produced pursuant to this order.

[21] There shall be an order that no one is to disclose any of the records to anyone except that counsel for Ms. Baksh or the Crown may disclose the records to their investigators or any person retained to assist them in the preparation of their case in this matter. Any person who receives disclosure of the records from Ms. Baksh’s counselor the Crown shall not disclose any part of the records to any other person. Counsel for Ms. Baksh or the Crown who discloses the records to their investigators or anyone else retained to assist them shall advise those persons of the conditions of this order.

[22] It is ordered that the telephone number of Angela Bianco shall only be produced to counsel for Ms. Baksh, Crown counsel and counsel for Ms. Bianco.

[23] It is further ordered that counsel for Ms. Baksh shall not disclose Ms. Bianco’s telephone number to Sharon Baksh or anyone else except for the person retained to assist counsel in the Applicant’s defence.

[24] If Ms. Baksh’s counsel discloses Ms. Bianco’s telephone number to a person retained to assist in the Applicant’s defence, that person shall not disclose Ms. Bianco’s telephone number to anyone.

[25] Counsel for Ms. Baksh shall advise anyone retained to assist in the defence of the Applicant of the conditions of this order.

[26] If the telephone records are filed as an exhibit in the trial of Ms. Baksh, the telephone number of Ms. Bianco shall be redacted in its entirety with the redactions being identified for the jury only as “Ms. Angela Bianco’s telephone number”.

[27] All Bianco third party records provided to the Defence are to be destroyed after all avenues of appeal have been exhausted. Should there be a concern that further appellate litigation might be possible in the future, Defence shall be at liberty to apply to the Court to continue to hold onto the records provided that if all formal appeals have been exhausted and 1 year has passed since the last appeal was decided, the Defence must apply on notice to the Court to continue to hold the documents and must demonstrate a reason to avoid their destruction. Defence shall mean all Defence counsel including Appellate Counsel and Sharon Baksh.

Justice B. Glass

Released: August 20, 2015