Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210927 DOCKET: M52800 (C68657)

Paciocco J.A. (Motion Judge)

BETWEEN

Her Majesty The Queen Respondent

and

Jamal Daye Applicant/Appellant

Counsel: Chris Sewrattan and Ashley Sewrattan, for the applicant/appellant Sarah Egan, for the respondent

Heard: September 27, 2021 by videoconference

Endorsement

[1] On October 2, 2020, Mr. Jamal Daye, a young man with no prior criminal record, received bail pending appeal, on consent, after he was convicted of serious narcotics trafficking charges and sentenced to 5 years and 6 months of imprisonment. On June 24, 2021 he was discovered by police in the bedroom of an apartment in which a loaded handgun was found inside the pocket of a coat. There is evidence that a medical sticker was found in the coat bearing his name, and his mother advised the police that Mr. Daye had rented the apartment for his music business. Another loaded handgun was found in an adjacent bedroom but has not been otherwise linked to Mr. Daye. Weapons and breach charges were laid against Mr. Daye, who now applies to be rereleased pending appeal. The onus is on Mr. Daye and although he is presumed innocent of the new charges, he is not presumed innocent of the original drug charges.

[2] In resisting Mr. Daye’s release, the Crown does not rely on the primary or secondary grounds, but argues based on the tertiary ground that Mr. Daye has failed to show that his detention is not necessary in the public interest, given the need to preserve public safety and confidence in the administration of justice. I am not satisfied that Mr. Daye’s release is required in the public interest because I am not persuaded that the interest in reviewability should predominate over the interest in enforceability.

[3] Mr. Daye is confident that his appeal will not be long delayed. He urges that he is asking only for short-term bail release, and that a short period of release lessens the public risk, if any, in his release. There is some merit in that submission but the short period pending the appeal also reduces the risk to his liberty in postponing reviewability, particularly given that the bulk of his long sentence is yet to be served.

[4] Mr. Daye also relies on the strength of his first ground of appeal, given that there are solid grounds to believe that the trial judge erred in denying exclusion of evidence under s. 24(2) of the Charter after finding a serious breach of Mr. Daye’s right to counsel based on what may have been an erroneous conclusion that the evidence was not obtained in a manner that violated the Charter rights of Mr. Daye. Although Mr. Daye’s appeal is far from frivolous, the ultimate success of this, his strongest ground of appeal, depends upon an ultimate conclusion that the evidence must be excluded pursuant to s. 24(2). The seriousness of the offence and the absence of a causal connection between the breach and the discovery of the evidence materially reduce the prospect of that success, as does the fact that the police did not seek to use Mr. Daye as a source of evidence during the right to counsel delay. I agree with the Crown that although the grounds of appeal cannot be discounted, the appeal is not so strong on its face as to tip the balance in favour of reviewability, given the competing interests.

[5] First, there is the seriousness of the original convictions, for which Mr. Daye is no longer presumed innocent, and the pending firearms and breach charges. Moreover, there is an obvious link between drug crimes and firearms offences. The nature of the offences works strongly in favour of enforceability and public protection.

[6] So, too, does the nature of the alleged breach of bail release. It is deeply troubling, not only that the alleged breach involves the commission of an extremely serious and disturbing offence, but the firearms and breach offences were alleged to have been committed in the presence of one of Mr. Daye’s sureties. This raises serious concern that if released, Mr. Daye may not respect the terms of his release and engage in further serious and dangerous criminal activity.

[7] I appreciate that Mr. Daye’s release plan is meant to address this and that his mother and sister are appropriate sureties. Ultimately compliance depends upon Mr. Daye’s readiness to comply. I have sufficient concerns in this regard that I am not persuaded that Mr. Daye’s release pending appeal is appropriate.

[8] I also recognize that a justice of the peace concluded otherwise in granting Mr. Daye release pending trial on his new charges, but I assess things differently. Given the facts of this case, if there is going to be a breach, there is reason to be concerned that the breach will be an extremely serious one.

[9] The public interest in ensuring public safety and public confidence in the administration of justice require Mr. Daye’s continued detention pending appeal.

“David M. Paciocco J.A.”