Court File and Parties

Court file number: 4711/19 DATE: 2020-05-06 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty the Queen AND: Jermaine Chapman

BEFORE: Mr Justice Ramsay

COUNSEL: David King for the Crown Scott Reid for the accused

HEARD: May 6, 2020 by telephone

Publication ban: An order has been made under s.517 of the Criminal Code. Paragraphs [6] to [9] of this endorsement may not be published until the jury has been sequestered or the accused has elected to be tried without a jury.

Endorsement

[1] This is an application under s.520 of the Criminal Code to review the detention order made by Justice of the Peace Whalen on May 22, 2018.

[2] The accused was arrested in February of 2018 and charged with shooting five people at a nightclub the previous September, and two counts of firearms trafficking that occurred in January 2018. The accused has no criminal record. The onus was on the accused to show cause for his release because some of the offences are mentioned in s.515(6) of the Code. The justice did not think that the accused could meet the criteria of the second and third grounds for detention without a strong plan. He did not have a strong plan.

[3] The accused submits that he should be released in view of three material changes in circumstance:

a. He now has a good plan with strong sureties and electronic monitoring.

b. It is not in the public interest to keep him in custody while the pandemic is current.

c. His trial will probably be delayed, also because of the pandemic.

[4] He also submits that the justice erred by detaining him when he thought him to be releasable. It is submitted that the justice should have ordered surety bail and left it to the accused to find suitable sureties.

[5] I do not think that the justice erred in proceeding as he did. A justice who finds that surety bail is necessary has the option to order release to named sureties, or to release the accused on surety bail and leave it to the accused to present sureties to the intake justice. In the present case, however it was not just the availability of sureties that was in issue. The justice thought that the accused needed a particular sort of surety with whom he would be required to reside. In those circumstances, if he thought that the plan was insufficient, he was entitled to detain the accused. In saying so I do not think that I am contradicting R. v. Antic, 2017 SCC 27 or R. v. Tunney, 2018 ONSC 961.

[6] [Redacted.]

[7] [Redacted.]

[8] [Redacted.]

[9] [Redacted.]

[10] I do not think that the health emergency outweighs the other considerations in this case. I do not have evidence about the effects of the pandemic, but I am willing to go as far as the Court of Appeal did in R. v. Morgan, 2020 ONCA 279, released on Monday of this week:

In our view, it is not necessary to decide whether this court could take judicial notice of the effects of the COVID-19 pandemic to the extent to which the appellant would have us do that. We do, however, believe that it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission.

[11] The Crown has filed evidence about the situation in the gaols. There has been an outbreak at OCI, a reformatory. It was closed. The inmates were transferred to a separate part of the Toronto South Detention Centre. There have been no infections at Thorold. At Hamilton, an outbreak was managed by the authorities, with the result that it was limited to two infections – one inmate and one guard. The accused will not necessarily be safer if he is released. Reducing the number of persons who are incarcerated will produce a benefit, but it must be weighed against the other relevant considerations in every case. In the present case it does not make the difference.

[12] The trial is set to begin in September 2020, just within the Jordan guideline. It is scheduled to last 7 weeks. It may well be adjourned because of the court’s emergency operational requirements, but not necessarily, and if so, not necessarily for a long time. Detention is still necessary. It can be reviewed in future if delay becomes an issue.

[13] The review is dismissed.

J.A. Ramsay J. Date: 2020-05-06