Court Information and Appearances

ONTARIO COURT OF JUSTICE

DATE: 2021·07·12 COURT FILE No.: Scarborough 20-35002936 and 20-35002937

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SHAMAR BAILEY

— AND —

KWAMI GARWOOD

Before: Justice K. Caldwell

Heard on: July 9, 2021

Reasons for Judgment released on: July 12, 2021

Counsel: Mr. Jonathan Smith and Ms. Leslie Zamocj ...................................... counsel for the Crown Mr. Maurice Mattis ............................................ counsel for the accused Mr. Shamar Bailey Mr. Adam Newman ........................................ counsel for the accused Mr. Kwami Garwood

K. Caldwell J.:

[ 1 ] Mr. Bailey and Mr. Garwood are charged with first degree murder in the death of Mr. Andre Charles.

[ 2 ] The preliminary inquiry began by Zoom on July 6th, 2021. Three days later I suspended the observer portion of the Zoom proceedings. These are my reasons for that suspension.

[ 3 ] At the outset of the proceedings, I informed the observers of section 136 of the Courts of Justice Act. That section makes it an offence to take screen captures or photos of the Zoom hearing participants, and makes it an offence to upload any such photos or screen captures onto social media sites. The provisions of section 136 are broader than this but in practical terms such acts have, at times, become an unfortunate and unexpected by-product of Zoom proceedings. Reminding the observers of the provisions of section 136, and that violation of the section is an offence, was an attempt to prevent these acts from occurring during this hearing.

[ 4 ] Unfortunately, one or more people chose to violate these provisions. A screen capture or photo was taken of Mr. Garwood and then uploaded by the same or other individuals onto more than one social media site. To it was attached a slang caption that I’m told is most likely supportive of Mr. Garwood though his counsel expressed concerns that there could be different interpretations. Regardless, the primary issue is the photo upload. Given the viral nature of social media, the image and associated caption can be seen by thousands and can be redistributed on various platforms.

[ 5 ] The courts take the violation of section 136 extremely seriously and for obvious reasons. Identities of witnesses for either the Crown or the defense can be revealed instantaneously to thousands of people. There have been cases of the identities of undercover officers going viral, though to my knowledge this is not a concern in this case. Further, the messages that accompany the images can be perceived as intimidating.

[ 6 ] The identities of the individuals who killed Mr. Charles is a very live issue. The fact that Mr. Charles was shot multiple times at close range and killed, however, is not in dispute. I do not need evidence that witnesses are concerned about their images being uploaded – in a case of this nature, such concern is simply a matter of common sense. I can draw that conclusion without such a conclusion reflecting negatively on Mr. Bailey or Mr. Garwood.

[ 7 ] The violation has occurred. Any investigation into the identity or identities of those who committed that violation is left to the police. It is clear to me, however, that the opportunity for this to occur a second time must be eliminated and all counsel are in agreement on that point. As a result, unfortunately, the observer portion must be moved off the Zoom platform though all counsel, witnesses, accused, and I will continue to appear by Zoom.

[ 8 ] Events such as those that occurred last week create a tension in the court system, however. Uploading of images cannot occur yet that cannot mean that the public must be excluded. The open court principle also is extremely important. Criminal trials and inquiries in Canada do not occur in secret and there are numerous very good reasons for this fact including the check on procedural fairness that public scrutiny fosters.

[ 9 ] As a result, counsel and I are in agreement that arrangements must be made to allow the public to watch the proceedings. At this point, approximately fourteen people have been Zooming in on a regular basis. I am led to understand that most if not all are family members and friends of Mr. Charles, Mr. Bailey, and Mr. Garwood.

[ 10 ] COVID-19, however, greatly complicates this solution. Once we closed court on Friday afternoon, I toured our options with the Manager of Court Operations in the Scarborough Courthouse. The best solution that we could arrive at, given the COVID-19 distancing protocols, is to move the court staff into the one currently unoccupied and very small courtroom in the building, and open one of our largest courtrooms up to observers. The proceedings can be viewed by Zoom in this courtroom but a member of the Toronto Police Service (“TPS”) will be in attendance at all times to ensure no screenshots are taken.

[ 11 ] Unfortunately, however, the maximum observer capacity in that courtroom is six individuals, plus the TPS officer. This maximum flows from the social distancing measures in place given COVID-19. This is the best solution that can be found at this point in time.

[ 12 ] Mr. Newman, counsel for Mr. Garwood, had suggested that perhaps a larger courtroom could be found in another courthouse, most likely 2201 Finch Avenue West or Old City Hall. The suggestion is a good one but not one that can be instituted quickly enough to allow the proceedings to continue today. All of those courthouses have their own trial pressures and coordination of such an arrangement would have to involve at minimum the Regional Administrative Justice and the Local Administrative Judges of those courthouses. Before pursuing this option, I will discuss the practical viability further with counsel.

[ 13 ] It is extremely unfortunate that the actions of a few individuals have led to this result. Uploads of such photos can impact individuals beyond those whom the section 139 violators likely intended to impact. I will note just two examples.

[ 14 ] First, this issue totally derailed our proceedings on Friday so no evidence was called. We lost a day. That day will have to be made up at some point, most likely in September or perhaps later, thus prolonging the hearing for everyone.

[ 15 ] Secondly, I am aware that parents have been watching by Zoom. If the parents of Mr. Charles, Mr. Bailey and Mr. Garwood have all been watching, they will all be negatively impacted. Either they will be forced to travel to the Scarborough courthouse with no guarantee that there will be room for them within the observer courtroom given the COVID-19 protocols or they will be forced to travel a significant distance – potentially Old City Hall or 2201 Finch Avenue West – in order to observe. I have no idea of their ages, possible mobility issues, or other hardships that this might present for them.

[ 16 ] This ruling allows the preliminary hearing to continue today with the proceedings open to the public albeit with the necessary social distancing limitations in place. It may be that people must rotate on a scheduled basis if individuals beyond the six allowable at any one time wish to attend.

[ 17 ] Finally, one might question why I don’t order the entire inquiry to take place only in person. This solution would be no solution. If counsel, the court staff, the officer in charge, Mr. Garwood, Mr. Bailey, the necessary security and I were all to attend in person, these numbers alone would further limit or potentially eliminate observer capacity. This solution would only compound the problem.

Released: July 12, 2021 Signed: “Justice K. Caldwell”