SUPREME COURT OF PRINCE EDWARD ISLAND. Citation: Ayangma v. R PESC 24 Date: Docket: S1-GC-754 Registry: Charlottetown

Transcription

1 SUPREME COURT OF PRINCE EDWARD ISLAND Citation: Ayangma v. R PESC 24 Date: Docket: S1-GC-754 Registry: Charlottetown Between: And: Sebastien Ayangma Her Majesty the Queen Appellant Respondent Before: The Honourable Justice John K. Mitchell Appearances: Sebastien Ayangma, self-represented Gerald K. Quinn, Q.C. for the Respondent Place and Date of Hearing Charlottetown, Prince Edward Island October 20 and 27, 2011 Place and Date of Judgment Charlottetown, Prince Edward Island December 13, 2011

2 Page: 2 CRIMINAL LAW - effective date of court order - failure to comply with Rule procedure irregularity - proper exercise of judicial discretion - best interest of the administration of justice under s Criminal Code - Rule Rule Rule CASES CITED: Griffin v. Dell Canada Inc., 2009 CarswellOnt 2085 (Ont.C.A.); R. v. Rybansky et al., [1982] 66 C.C.C. (2d) 459 (Ont.H.C.J.); R. v. Hendry (2001), 161 C.C.C. (3d) 275 (Ont.C.A.); R. v. North (2002), 165 C.C.C. (3d) 393 (Alta.C.A.); R. v. Briggs [2001] O.J. No (Ont.C.A.); R. v. Burke 2008 PESCTD 11. Mitchell J.: [1] On June 1, 2011, in an ex parte hearing, Chief Provincial Court Judge John R.A.Douglas confirmed an earlier order made pursuant to s of the Criminal Code authorizing the taking of bodily samples from Sebastien Ayangma for the purpose of forensic DNA analysis. Ayangma appeals that order alleging that Chief Provincial Court Judge Douglas had no jurisdiction to make the order and that the ex parte hearing deprived him of the opportunity to be heard. He asks that the DNA order be struck and in the alternative that it not be remitted to Chief Provincial Court Judge Douglas. [2] The issues in this appeal are; (i) Did the Provincial Court have jurisdiction? (ii) If so, was the trial judge s decision to proceed ex parte a proper exercise of judicial discretion? (iii) If so, should the Appellant have a new hearing? (iv) If so, should the matter be remitted to Provincial Court or heard in the Supreme Court? (v) If the Supreme Court, should the order be confirmed or quashed. The first four issues were decided orally on October 20. Herein follows the written reasons on all five issues. Facts [3] The facts in this case are somewhat long and convoluted but must be reiterated in some detail to understand the situation. Sebastien Ayangma pled guilty December 21, 2009, to three counts of common assault (s. 266(b)), one count of breach of probation (s. 733) and one count of resisting arrest (s. 129).

3 Page: 3 [4] The passing of sentence was suspended in reference to the 733 and 129 offences. On the three assaults, he was credited with time served (23 days actually served, although the trial judge credited him with 30 days) and sentenced to an additional 90 days to be served intermittently, together with 18 months probation. Sebastien Ayangma attended court with his father Noël Ayangma and was represented by a competent and experienced criminal defence lawyer. The Defence submission in response to the Crown s request for a DNA order is as follows: With respect to the DNA warrant, we would note that it s secondary offence, not a primary designated, and would suggest that notwithstanding that the whole course of events was sort of a prolonged incident that each individual one was not, not significant, I guess, with respect to assaults and I ll leave it to the Court s discretion on whether, to exercise your discretion with respect to that. [5] In deciding whether to grant the Crown request for a s DNA order, the Chief Provincial Court Judge made reference to the accused s prior record, the nature of the offence and circumstances surrounding the offence. He said nothing on the issue of the impact that the order may have had on the privacy and security of Ayangma. The trial judge granted the DNA order pursuant to which Ayangma was immediately taken to a suitable location and a sample procured by means of a sterile lancet (s (1)(c)). [6] Ayangma then appealed the DNA order to the summary conviction appeal court. His ground of appeal is stated as follows: The trial judge erred in making an order in which the impact on the appellant s privacy and security of the person was grossly disproportionate to the public interest in the protection of society and the proper administration of justice. [7] He requested that the summary conviction appeal court quash the DNA order. The effect of that, of course, would be that the sample would be removed from the system. [8] The appeal was heard by Campbell J., sitting as Summary Conviction Appeal Judge. He found that Chief Provincial Court Judge Douglas failed to consider one of mandatory factors to wit; the impact a DNA order would have on the privacy and security of Ayangma. Justice Campbell stated:...but I am of the view that in this circumstance it is appropriate for it to go back to Chief Judge Douglas for consideration of each of the mandatory factors set out in (3).

4 Page: 4... So I will order the matter remitted to the Provincial Court judge for consideration as I have indicated under s (3) specifically to add consideration of the impact the DNA order would have on Mr. Ayangma s privacy and security of the person and to provide reasons with respect to that. [9] What should have followed was that the successful party should have taken out a formal order and filed it with the Registrar of the Supreme Court who would then in turn send it to the Provincial Court (Rule 82.12). This was not done. [10] The matter was sent back to Provincial Court, either at the Crown s request or by mistake without a formal order. The file was back at Provincial Court by April 26 when Ayangma was served with a summons to appear before Provincial Court April 28 at 10 o clock in the morning. [11] Both Ayangma and his father (hereinafter Ayangma Sr.) were present April 28 when the matter was adjourned to June 1 at 9:30 a.m. Following the usual Provincial Court practice with regard to self-represented litigants, the Ayangmas were given a slip of paper to ensure they knew the time and place of the hearing. That paper read: Provincial/Youth Court Name SebastianAyangma Statute and Section Appl. res Trial Date June1, 2011 at 9:30 a.m. Kelly Building 3 Harbourside Access Road Charlottetown, Prince Edward Island [12] On May 30, Ayangma was served with some materials to which the Crown intended to refer. The Crown advised the Provincial Court that the materials served made reference to the time and date of the hearing. The Crown filed with the Provincial Court the Appellant s and Respondent s factum from the summary conviction appeal court, the case law filed with the summary conviction appeal court, CD of the remarks of the trial judge, and a publication entitled The National DNA

5 Page: 5 Data Bank of Canada Annual Report, [13] All was set to go ahead June 1, 2011 at 9:30 in the morning, but Ayangma did not appear. Mr. Quinn for the Crown, has advised that they waited for between a half hour and 45 minutes for Ayangma. During that time, they phoned the Ayangma residence but there was no answer. [14] The Crown then made application to proceed ex parte. The trial judge considered the fact that the Ayangmas received notice of time and place verbally and in writing on April 28 and again in writing two days prior to the hearing. He granted the motion. [15] The Crown proceeded to present its case. The trial judge considered all the mandatory factors. The trial judge ruled that as Campbell J. had not struck down his original order, he could not make a new order. He therefore confirmed his original order. [16] A few hours later, at 1:00 p.m., Ayangma and his father arrived in Provincial Court. There, they were told that the matter was heard and decided. They then contacted the Crown s office who advised them the same thing. They launched the appeal which is now before the court. Jurisdiction [17] Ayangma argues that the Provincial Court did not have jurisdiction on the 1 st of June to hear the matter and therefore did not have jurisdiction to confirm the original order. He argues firstly that the order of Campbell, J., quashed the original order; therefore, there was no order for the Chief Provincial Court Judge to confirm. Alternatively, he argues that as there is no formal order there is nothing before the Chief Provincial Court to ground jurisdiction. st [18] The Chief Provincial Court Judge concluded the hearing on June 1 with the following: And I don t know what else I can say here to address the concerns of the Section 96 Court as being adequate reasons for the order I previously made and if confirmation of the previous order isn t enough I d order under 487, I would order the sample is already there, it hasn t been eliminated or struck down or anything else by Judge Campbell so there s no place to provide a new order but I certainly confirm the order I previously made for the reasons I m rambling on about. [19] Part of what Judge Campbell said is:

6 Page: 6..Again, considering that it is a discretionary order that is where I am reluctant to step into Chief Judge Douglas s shoes and finish the exercise of his discretion... But I am of the view that in this circumstances it is appropriate for it to go back to Chief Judge Douglas for consideration of each of the mandatory factors set out in (3)... So I will order the matter remitted to the Provincial Court judge for consideration as I have indicated under section (3) specifically to add consideration of the impact the DNA would have on Mr. Ayangma s privacy and security of the person and to provide reasons with respect to that. [20] In my view, Judge Campbell did not quash the original order. He merely remitted it back to the trial judge for further consideration. At that stage, the trial judge could either confirm the order or withdraw the order. [21] The failure to comply with Rule is a mere irregularity and is not a fatal flaw (Rule 2.01). The real question is when does a Supreme Court order become effective: Is it on the date of pronouncement; or the date the order is entered? If it is the latter, the Provincial Court had no jurisdiction as no formal order has been taken out. [22] It is true that a trial judge is not functus until the formal order is signed, but it is a rare case which would see a trial judge change the order after pronouncement (Griffin v. Dell Canada Inc CarswellOnt 2085, Ont.C.A.). It is also true that in this Province the practice is that the time period in which to file an appeal commences on the date the formal order is signed and entered. [23] In this case however, Ayangma well knew on April 28 that no formal order was taken out. As neither Ayangma nor the Crown were entirely successful at the hearing before Campbell J., it was surely within the power of both Ayangma and the Crown to have taken the order out. In any event, Ayangma appeared before the Provincial Court April 28 and raised no objection to jurisdiction. On his appeal to this Court, Ayangma indicates that his desire was to appeal the initial order of DNA (para 6(2) Notice of Appeal June 29, 2011), and makes no mention of any intention to appeal the decision of Campbell J. [24] Order is broadly defined in s. 782 of the Criminal Code as any order, including an order for payment of money. Rule states that an order is effective from the date on which it was made. It seems to me as a matter of logic and common sense that court order is effective from the moment of pronouncement, albeit the appeal period may not start until a formal order is signed and entered.

7 Page: 7 Were it otherwise, criminals who were sentenced to jail would be free to leave the court to pursue whatever activities they so desired during the time period between the pronouncement of sentence and the signing of the warrant of committal. [25] Chief Provincial Court Judge Douglas had before him a CD of Campbell J. s decision and therefore he had Campbell J. s order. If there was any confusion as to what Campbell J. s order was, he would have been within his rights to request a formal order. However, he could not have refused to hear the matter in the face of Campbell J. s order (R. v. Rybansky et al., [1982] 66 C.C.C. (2d) 459 (Ont.H.C.J.)). He had no choice but to obey the instructions of the Supreme Court sitting in appeal from his ruling. Did Chief Provincial Court Judge Douglas Properly Exercise His Discretion in Proceeding Ex Parte? [26] The trial judge exercised his discretion judicially and properly in holding the ex parte hearing. Ayangma was in court April 28 when the date was set. Therefore, he heard the date being set and he was handed the written notice of time and date. Two days before the hearing he was served with documents which documents Crown advises, contained reference to the time and date. [27] The Crown advises that they waited 30 to 45 minutes for Ayangma to show up in court and they also telephoned his residence but got no answer. In those circumstances, it was reasonable for the Provincial Court Judge to conclude that the Appellant was well aware of the time and date and had simply failed to appear. I can find no fault in the actions of the trial judge in this regard. Should Ayangma Have a New Hearing? [28] Ayangma says that he made an honest mistake. He confused the date, (the 1 st of June), with the time (1 o clock) and he arrived ready to proceed at 1 o clock. He advises that he spoke to the court officers at that time. He advises, and the Crown confirms, that he thereafter contacted the Crown office. Ayangma Sr., who was with his son at every court hearing, is familiar with the courts because of various civil matters in which he has been involved over the years and made the point that he has never missed a scheduled court appearance previously. He points out that it is not in the interest of justice that he not be given a chance to address issues of concern to him. [29] I find that Ayangma made an honest mistake. If he can be given a hearing in a timely and cost-effective manner, then he should be heard.

8 Page: 8 Provincial Court or Supreme Court [30] Ayangma asked that this matter not be remitted again to the trial judge and that the DNA order be struck down (para. 6(6) Notice of Appeal June 29, 2011). R. v. Hendry (2001), 161 C.C.C. (3d) 275 (Ont.C.A.) was a Crown appeal of the refusal to make a s order. Rosenberg, J.A., writing for the court, found that a court sitting on an appeal of a DNA order has the same power to make the order that should have been made by the trial judge. Rosenberg also states that while the appellate court has the power to remit the matter to the trial judge, as did Campbell J., he would consider that unusual as it would involve additional time and expense. In this case, the matter was sent back once. Ayangma does not want the matter sent back to the trial judge. Sending it back to the trial judge a second time would involve unnecessary time and expense for all parties. A fair, just and efficacious manner to handle this matter is to have the Mr. Ayangma make the representations that he would have made before the trial judge which this Court will consider in deciding whether or not to confirm the order of Douglas, C.P.C.J. (R. v. North (2002), 165 C.C.C. (3d) 393 (Alta.C.A.)) Decision on Merits; Should the Order be Confirmed or Quashed? [31] The offence of which the appellant was convicted is a secondary designated offence. The order is discretionary and it may be made where the court is satisfied that such an order is in the best interests of the administration of justice. In deciding that issue, the court must consider the person s criminal record, whether or not he was previously found not criminally responsible for a designated offence (not applicable in this case), the nature of the offence, the circumstances surrounding its commission and the impact that such an order would have on the privacy and security of the individual. Ayangma s Criminal Record [32] Mr. Ayangma has a previous record for possession for the purpose of trafficking in cocaine. Ayangma Sr. argues that he only had a small amount of cocaine. There is no evidence before this Court, nor before the Provincial Court of the quantity of cocaine. The judge who convicted him of the possession for the purpose of trafficking charge was Chief Judge Douglas, who would presumably be aware of the facts. The Nature of the Offence and the Circumstances Surrounding the Offence [33] Mr. Ayangma was convicted of possessing cocaine for the purpose of trafficking on May 19, He received a 90 day conditional sentence and twelve

9 Page: 9 months probation. He was still on probation November 28, 2009, when police were called to the Velvet Underground, a bar on Prince Street in Charlottetown, because Ayangma was involved in a verbal altercation with a female patron. The police intervened, told them to separate and told them to stay away from one another. A half hour later at about 1:50 a.m. the same police officer had to intervene again, as Ayangma had become involved in another verbal altercation. The second bout was with a male and was becoming very heated. The police told Ayangma to leave. Ayangma was defiant and mouthy. The officer took Ayangma by the arm and told him he was under arrest. Ayangma pulled his arm free and ran. The police gave chase unsuccessfully. [34] Half hour afterwards, Ayangma was a passenger in the back seat of a car going through the drive-thru at McDonald s, University Avenue. Eighteen year old Cody Kneebone and his seventeen year old friend, Devon MacDougall were parked opposite the drive-thru exit window eating their meal. The car windows were open. Ayangma got out of his car for reasons unknown. Devon MacDougall asked about the stereo system in the car that Ayangma had exited. For some reason, Ayangma took offence. He went to the passenger side of the Kneebone vehicle and kicked Devon MacDougall in the head. Then he went around to the driver s side where Cody Kneebone was desperately trying to get the window up so as to avoid being assaulted. Ayangma reached in and grabbed Kneebone and was pulling at his clothes and was slapping him. The window was raised to a point where Ayangma had to pull his arm out. His watch came off and fell into the car. Ayangma yelled at the two young men in the car and demanded his watch back. Kneebone threw the watch out the window. Ayangma then returned to the passenger s side where Devon MacDougall was sitting with is window up. He kicked the car window twice. Ayangma then left. Kneebone and MacDougall called the police. [35] Ayangma then went to 13 Brown s Court, where there was a party going on. Ayangma does not live there. There were people at that location, all in various degrees of intoxication. One of those intoxicated people was a Ms. Deveaux. She had been injured before Mr. Ayangma arrived. Someone apparently had thrown a beer bottle at her which struck her in the face. She was bleeding. There were some individuals at this party who wanted Ms. Deveaux to leave. There was apparently some physical contact between two females where Ms. Deveaux was struck again causing her to bleed more. Ms. Deveaux was sitting on the couch when Mr. Ayangma decided to enter the fray. He grabbed Ms. Deveaux, pulled her from the couch to the floor, grabbed her by the feet/ankles and dragged her out of the apartment.

10 Page: 10 Impact on the Privacy and Security of the Person [36] The sample was taken by way of a sterile lancet. Crown points out that a DNA Order is made after the person is convicted and that adult offenders should have a diminished expectation of privacy following conviction. Crown s position is that the impact on a person s security and privacy is minimal. The Crown relies on information contained in the National DNA Data Bank of Canada Annual Report , in particular at page 18 where they say: It is important to note that convicted offender samples are identified simply by a bar code number and that crime scene samples are identified by a unique number identifier. In fact, the donor identity of a convicted offender is separated from the genetic information when the sample arrives at the NDDB. The bar code is the only link between personal information, the biological sample and the DNA profile. The personal information is protected information that is not accessible by NDDB staff, and is kept in a separate registry by the RCMP s Canadian Criminal Real Time Identification Services (CCRTIS). The DNA Identification Act makes it clear that the NDDB profiles can only be used for law enforcement purposes. The NDDB does not share the DNA profiles with anyone other than law enforcement agencies. The DNA profiles are the result of 13 specific DNA markers that are tested to produce a DNA profile which is unique to each individual (with the exception of identical twins). These 13 regions of interest are considered anonymous, and other than gender, do not provide specific medical or physical information about the donor. The regions chosen by the NDDB are the same regions of genetic variation used throughout the United States and in many other countries conducting forensic DNA analysis. [37] The DNA sample must be used only for law enforcement purposes. All other uses, including medical research, are prohibited and actually punishable by law. According to the website filed by the Crown ( The question of privacy has been addressed in four ways in the implementation of the National DNA Data Bank. 1. Scientific processes: the DNA analysis process used by the Data Bank examines only a small segment of the entire human DNA blueprint which encodes anonymous pieces of DNA. Apart from the ability to identify gender, there is no known link to physical or medical attributes.

11 Page: Methodology: by design, the genetic and personal data will be separated. The DNA Data Bank will have the DNA profile and original biological sample, but the personal information and full set of fingerprints of convicted offenders are in the custody of the Canadian Criminal Records Information Service (CCRIS), and are retained under strict security provisions. 3. Physical parameters: it will not be possible for unauthorized persons to enter the Data Bank and view or retrieve data. In order to be able to interpret the data, specialized knowledge is required. For genetic DNA data to be linked to an individual, access to two separate and secure data bases, housed in separate locations, would be required. 4. Legal: the Act specifies criminal penalties for unauthorized use of the DNA profile data or the samples themselves. As an additional safeguard, plus an important transparent link to the public, the National DNA Data Bank Advisory Committee was appointed by the Solicitor General of Canada in early 2000 to function as an independent body to oversee the effectiveness and efficiency of the National DNA Data Bank.... Ayangma s Position on the Four Relevant Factors Criminal Record: [38] Ayangma points out that he was eighteen when convicted of possession for the purpose of trafficking. Ayangma says it was only a small amount of cocaine. He states that the record is one single offence. He compares it to the rather lengthy criminal record with which the court dealt in the Briggs case, supra. Nature of the Offence: [39] Ayangma says the assaults were of a minor nature and all happened in the course in one night. Ayangma argues that the trial judge believed them to be of minor nature as well and that he would not have made the DNA order but for the prior record. The trial judge stated on December 21, 2009, In respect to the DNA order, if we were just dealing with a first time offender facing these charges, in that they are secondary offences, I probably wouldn t order it. You do have a prior record, though, for a serious matter, trafficking in a narcotic, in cocaine, so the order will be made under s (1).

12 Page: 12 [40] Ayangma states it was merely one unfortunate night. This offence, the assault, is less serious than the previous offence (possession for the purpose of trafficking). It is not appropriate, says Ayangma, for a DNA order to be granted for such a minor charge. Circumstances of the Offence: [41] It is here that Ayangma makes his strongest stand. He argues that he was targeted and punished for Crown error. In fact, he uses the word targeted almost a dozen times in his oral presentation. Ayangama says that when arrested November th 28, he was originally charged with assault causing bodily harm in connection with the bottle thrown in the face of Ms. Deveaux in Brown s Court. He was then remanded in custody on that charge and spent twenty-three days in jail before coming st st to court on the 21 day of December. On December 21, he offered a guilty plea to the included offence of s. 266(b), and pursuant to s. 606(4), the Crown accepted. Ayangma alleges that a witness came forth who identified the person who threw the bottle at Ms. Deveaux. The real culprit, however, was neither charged nor prosecuted. This allegation leads Ayangma to argue as follows: 1. Because police made an error in charging under s. 267, and because they remanded him into custody for twenty-three days, they somehow had to rectify that error with DNA request. Ayangma refers to this as pure punishment. 2. The person who committed the more violent act of throwing the beer bottle in the face of Ms. Deveaux, faced no consequences while Ayangma faced criminal charges and a DNA order. 3. In arresting him that night, he was targeted as all those who didn t look like Ayangma went free but Ayangma went to jail. [42] He argues that one of the objectives the DNA legislation is deterrence but it cannot be deterrence to proceed against Ayangma and let those who committed more serious offences go free. Privacy and Security of Ayangma; [43] While this factor was the ground of his original appeal to Justice Campbell, Ayangma spent precious little time arguing this factor on this appeal. He states that his privacy will be adversely affected because, when a crime is committed the police go first to people who are different and because he is black, he will be among the first the police will seek. From that I take it he means they will go to his DNA sample

13 Page: 13 before others. [44] He further argues that because the order was made in open court, his privacy interest has already been breached as the fact of the order is public knowledge. The Best Interests of the Administration of Justice [45] A court may make an order under Section (3) only when it concludes, after considering the factors enumerated therein, that it is in the best interests of the administration of Justice to make such order. The Ontario Court of Appeal has dealt with this phrase in R. v. Briggs [2001] O.J. No (Ont.C.A.) and Hendry., supra In Hendry at para. 17, the court states as follows: 17 In R. v. Briggs, Weiler J.A. dealt with many of the issues that may arise in interpreting s (1)(b) and s In particular, she held as follows: (1) Whether or not there is evidence at the scene of the crime of which the offender was convicted that would likely yield a DNA profile of the perpetrator is not necessarily a relevant consideration. (2) The phrase "best interests of the administration of justice" does not import as a prerequisite to making the order that there be reasonable and probable grounds to believe a further offence will be committed. (3) The state interest in obtaining a DNA profile from an offender is not simply law enforcement by making it possible to detect further crimes committed by this offender. Rather, the provisions have much broader purposes including the following: 1. Deter potential repeat offenders; 2. Promote the safety of the community; 3. Detect when a serial offender is at work; 4. Assist in the solving of "cold" crimes; 5. Streamline investigations; and 6. Most importantly, assist the innocent by early exclusion for investigative suspicion or in exonerating those who have been wrongfully convicted. (4) Provisions in the Criminal Code and the DNA Identification Act

14 Page: 14 restricting the use that can be made of the DNA profile and protecting against improper use of the information offer significant protection of the offender's privacy. (5) The procedures for seizures of bodily substances authorized by the provisions are of short duration and involve no, or minimal, discomfort. There is a minimal intrusion with no unacceptable affront to human dignity. (6) A person convicted of a crime has a lesser expectation of privacy. (7) The trial judge is entitled to look at the offender's entire record, not just the crimes that may be designated offenses. 18 I would summarize the effect of these holdings as follows. In balancing the offender's right to privacy and security of the person against the state interests in obtaining the offender's DNA profile, the court must consider the following. The legislation offers significant protections against misuse of the DNA profile information, thus minimizing an improper intrusion into the offender's privacy. Having been convicted of a designated offence, the offender already has a reduced expectation of privacy. In the ordinary case of an adult offender the procedures for taking the sample have no, or at worst, a minimal impact on the security of the person. Thus, in the case of an ordinary adult offender there are important state interests served by the DNA data bank and few reasons based on privacy and security of the person for refusing to make the order. [46] Having read the material on file and having heard the Crown and Ayangma I can find no merit to Ayangma s submissions and can find no fault with the Provincial Courts determination that it is in the best interest of Justice that an order be made under Section (3). I therefore confirm the original order of Chief Provincial Court Judge Douglas and confirm that the sample previously taken and provided to the DNA National Databank be kept on file. [47] Ayangma argues that his prior criminal record is for a single offence and that he was only 18 years of age at the time of the offence. The Chief Provincial Court Judge viewed the prior record as serious and I agree. Cocaine is a very serious drug. A conviction under this section of the Controlled Drugs and Substances Act is a very serious offence, a fact which was recognized by Chief Judge Douglas. In paras. 22 and 23 of R. v. Burke 2008 PESCTD 11, Taylor, J., states as follows: 22. Traffickers of illegal addictive drugs are in my view among the very worst offenders in our society. They steal the lives of drug users, strip them of their humanity and turn their victims into mere shells of people with one great all-consuming need to somehow buy and use more drugs. Addicts will do anything, commit any crime, to get their next fix, and so the harm is visited upon citizens in general, who are victims of embezzlement, theft,

15 Page: 15 robbery, vandalism, break and enter, and assault or worse by drug users. 23. As well, and this is particularly important in this case, drug dealers lead violent lives. People are killed in the illegal drug trade, dealers stealing from each other, fighting for territory, dealers assaulting and killing users, users assaulting dealers, and sometimes innocent people are caught in the crossfire.... [48] While it is true Ayangma was not very old at the time of the offence neither was his prior record as it was a little over six months between his conviction for possession of cocaine for purpose of trafficking and the offence before the courts December 21, [49] Ayangma s argument that this is a case of a minor assault for which is inappropriate to make a DNA order ignores the fact that there was not one assault but three assaults and a resisting arrest conviction committed while on probation. [50] Ayangma s assertion that he was targeted must be seen for what it is. It is a very broad and veiled accusation of racism made on the thinnest of grounds. Ayangma assumes that the Crown knows who the person was who threw the bottle at Ms. Deveaux and that they didn t charge him or her. His proof? The Crown will not release it s file to him. Simply because a witness comes forth, as Ayangma alleges, from a room of ten to fifteen people in various stages of intoxication to say that Ayangma was not the one who threw the bottle does not mean that the police have the identity of the real culprit nor a reasonable prospect of conviction. It may simply be that the real culprit in the bottle throwing, to use Ayangma s own phrase, didn t look like Ayangma. It is my experience with dealing with Crown and police in this province for in excess of thirty years that when the Crown has a reasonable prospect of convicting someone who struck someone with a beer bottle, they lay the charge and prosecute regardless of race, religion or creed. [51] The accusation of racism is an extremely serious allegation and one that ought not to be made lightly. Assumptions and guesses are totally unacceptable grounds for such a serious accusation. I reject this accusation totally. If Ayangma was targeted November 28, 2009 at Browns Court the evidence would show that it was because he was the only one who resisted arrest, assaulted two people at McDonald s, assaulted a third person at Browns Court and did so while on probation thereby breaching Section 733 of the Criminal Code. On the evidence before the Chief Provincial Court Judge and the evidence before me that is the only reasonable conclusion to draw. [52] The original appeal to Campbell J., was on the issue of privacy and security of Ayangma. Ayangma s position in this Court is that his privacy and security will be

16 Page: 16 adversely affected because when a crime is committed the police go first to people who are different. This shows a profound lack of knowledge as to the DNA Identification Act. When police find a DNA sample at a crime scene they send it to the DNA Data Bank. They do not ask for a search of people who are different. They ask whether or not there is a match on file. Race has nothing to do with it. The DNA analysis process used by the Bank examines only a small segment of the entire human DNA blueprint. Apart from the ability to identify gender there is no known link to physical or medical attributes. The legislation offers significant protection against the misuse of DNA profiling information. [53] Therefore, taking into account the nature of the circumstances of the offence (three essentially unprovoked assaults, resisting arrest committed while on probation) previous criminal record for a serious offence, the reduced expectation of privacy in one who has been convicted of an offence, and the privacy and security protections in the DNA legislation I find that it is in the best interest of the administration of justice that a DNA order be made under Section (3) and I therefore confirm the original order of Chief Provincial Court Judge Douglas. J. December 13, 2011.