COURT FILE NO.: 20-A10472, 20-A10834
DATE: 2020/11/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
SHARMARKE ABDI-DJAMA
Accused/Applicant
Tim Radcliffe, for the Crown
Leo Russomanno, for the Accused/Applicant
HEARD: October 22 and November 24, 2020. Decision provided orally November 24, 2020, written reasons to follow.
Pursuant to sections 522 (5) and 517 (1) of the Criminal Code, an order issued prohibiting the publication in any document or broadcast or transmission in any way of the evidence taken, the information given, or the representations made, and the reasons issued, on this application. This prohibition applies until either the accused is discharged at a preliminary inquiry or his trial ends. This prohibition is subject to an exception that permits a lawyer to circulate these reasons to another lawyer or to rely on them before any court.
REASONS ON 90-DAY DETENTION REVIEW (s. 525 criminal code)
Aitken J.
Nature of Proceedings
[1] This is a 90-day detention review under s. 525 of the Criminal Code, R.S.C. 1985, c. C-46 in regard to the Accused, Sharmarke Abdi-Djama. Due to the COVID-19 pandemic, and with the consent of Crown counsel, defence counsel, and Mr. Abdi-Djama, the application was heard by way of ZOOM, with Mr. Abdi-Djama attending via telephone from the Ottawa Carleton Detention Centre (“OCDC”).
Charges and Evidence
[2] On June 12, 2020, the Accused was charged with 11 offences relating to his possession of a loaded .22 caliber revolver, a prohibited firearm, at the time of his arrest. As well, he was charged with possession of fentanyl for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”), and he was charged with possession of proceeds of crime in a value not exceeding $5,000 knowing that all or part of it had been obtained from the offence of possession for the purpose of trafficking of a Schedule 1 substance under the CDSA. At the time of his arrest, the Accused was allegedly subject to a weapons prohibition order.
[3] In June 2020, the Montreal Police were investigating Youssoud Deck Abdi-Djama, a resident of Montreal, and his brother, Sharmarke Abdi-Djama, a resident of Ottawa, for possible drug trafficking of heroin and purple fentanyl. The investigation resulted in part from information obtained from a confidential informant and included surveillance data on both brothers. Pursuant to a search warrant issued in Montreal as a part of this investigation, the Accused’s residence at 1761-B Russell Road, Ottawa was searched on June 11, 2020. The police located a wrapper containing fentanyl, a functioning scale beside the wrapper, and .22 caliber ammunition. The Accused was arrested outside his residence on the same day. He had in his possession a loaded .22 caliber revolver with the serial number removed and almost $4,000 in cash.
[4] Subsequently, on July 21, 2020, the Accused was charged with uttering threats to cause bodily harm to a correctional services officer who was standing outside his cell with other officers, preparing to do a cell check.
Nature of s. 525 Hearing
[5] The overarching purpose of s. 525 of the Code is “to prevent an accused person from languishing in pre-trial custody and to ensure a prompt trial by subjecting lengthy detentions to judicial oversight” (R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105, at para. 41).
[6] In this case, the Accused has not yet had a bail hearing. In that the fundamental purpose of s. 525 of the Code is to afford an opportunity to have a judge scrutinize the detention of an accused person, individuals who have consented to remand, possibly because they are in a reverse onus situation, are still entitled to a hearing under s. 525 (Myers, at paras. 42-43). Although the Supreme Court in Myers did not specifically state where the onus would lie at a s. 525 detention review hearing where the accused would have been subject to a reverse onus had he proceeded with an initial bail hearing, the following excerpt, at para. 56, touches on the issue:
[T]here may be certain anomalous situations in which an accused person who appears before a judge under s. 525 did not undergo a full initial bail hearing at the time of his or her arrest. To give proper effect to s. 525 in such situations, the judge is required to conduct the full bail hearing “from the ground up” in accordance with the ladder principle articulated in Antic, taking into account the time the accused has already spent in pre-trial custody. I wish to mention here that it has been suggested that allowing a full bail hearing to proceed before a superior court judge at the s. 525 stage would encourage “judge shopping” or would afford the accused some kind of procedural advantage that would for him or her justify spending three months in custody. In my view, this argument strains credulity. To quote O’Neill J. in McCormack [2014 ONSC 7123], “I am not at all sure that many jailed accused would ever resort to paying the 90 day price for that strategy”: para. 26.
[7] It is arguable that the first part of this passage means that, at a detention review hearing under s. 525 of the Code, in circumstances where the accused has not had an earlier bail hearing and the s. 525 judge must conduct one, all of the provisions in s. 515 relevant to the particular case come into play. In this case, that would include s. 515(6)(a)(viii) and (7) which state:
(6) Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused’s detention in custody is not justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused is dealt with according to law, if the accused is charged
(a) With an indictable offence, other than an offence listed in section 469, …
(viii) that is alleged to involve, or whose subject-matter is alleged to be, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or prohibited ammunition or an explosive substance, and that is alleged to have been committed while the accused was under a prohibition order within the meaning of subsection 84(1);
(7) If an accused to whom subsection (6) applies shows cause why their detention in custody is not justified, the justice shall make a release order under this section. If the accused was already at large on a release order, the new release order may include any additional conditions described in subsections (4) to (4.2) that the justice considered desirable.
[8] In other words, it is arguable that in situations where no bail hearing has yet occurred, the onus provisions that would have applied at an initial bail hearing would also apply during a s. 525 hearing in the case. This interpretation is consistent with the reasoning in R. v. Thorsteinson, 2006 MBQB 184, 206 Man. R. (2d) 188, at paras. 16-21; R. v. Sawrenko, 2008 YKSC 27, at para. 29; and R. v. Russell, 2016 NLTD(G) 208, 34 C.R. (7th) 262, at paras. 23-29 – all cases that predated Myers. It is also consistent with statements made in R. v. Denesevich, 2019 ONSC 3823, at para. 50; R. v. Spurrell, [2020] O.J. No. 62 (S.C.), at para. 27; R. v. M.J.I., 2020 ONSC 2497, at para. 3 (where counsel simply agreed that the accused bore the onus); and R. v. Ricourt-Casseus, 2019 ONSC 7471, at para. 15 – cases which came after Myers.
[9] At the original s. 525 hearing on October 22, 2020, and during supplemental submissions on the issue of onus on November 24, 2020, both counsel submitted that neither party bears the onus to show cause why the Accused’s detention is necessary (in the case of the Crown) or, conversely, is unnecessary (in the case of the Accused). In taking this position, defence counsel relied on the decisions of Schreck J. in R. v. G.F., 2020 ONSC 3389 and Parfett J. in R. v. Niyonzima, 2020 ONSC 6143 – both cases decided after Myers.
[10] The case of G.F. is similar to this case in that the accused had not had an earlier bail hearing. Justice Schreck, in fulsome reasons, reviewed the conflicting jurisprudence regarding which party, if either, bears the onus at a s. 525 detention review hearing. He concluded that, regardless of whether or not the accused had an earlier bail hearing, neither party bore an onus at a s. 525 hearing. Justice Schreck reasoned that, according to the Supreme Court of Canada in Myers, a s. 525 review is intended to be a safeguard to prevent presumptively innocent individuals experiencing undue delay in having their matters heard in court. It calls for an independent review of the detention by the s. 525 hearing judge. This safeguarding purpose would not be accomplished if any reverse onus were placed on an accused.
[11] Both counsel in this case relied on the latter part of para. 56 in Myers where reference was made to it being unlikely that any accused person would choose to spend 90 days in jail, without a bail hearing, in an effort to gain “some procedural advantage” at a s. 525 hearing. Both counsel argued that this passage supports the conclusion that on a s. 525 detention review hearing, neither party bears the onus. I note, though, that the quote from McCormack that closed paragraph 56 in Myers referred to the unlikely situation of an accused choosing to wait for a s. 525 hearing, where a transcript from an earlier bail hearing may not exist, rather than proceeding with a s. 520 bail review based on transcripts from the original bail hearing. It was not a reference to anyone trying to avoid the provisions in s. 515(6) of the Code regarding onus. As well, most of the discussion in Myers regarding accused persons who had not had initial bail hearings was about whether s. 525 should apply to them at all and whether a full bail hearing should be embarked upon at the s. 525 hearing. It was not about who would bear the onus at such a hearing.
[12] As with this case, the case of Niyonzima also involved the arrest of someone on multiple firearms offences in relation to one handgun at a time when the person was subject to a weapons prohibition order. Mr. Niyonzima was detained after a bail hearing. His case was back before the court for a s. 525 detention review hearing. Although initially each party claimed the other party bore the onus, ultimately, defence counsel submitted that neither party bore the onus – a submission accepted by Parfett J. without explaining her reasoning. Niyonzima can be differentiated from this case in that Mr. Niyonzima had had an earlier bail hearing.
[13] All this is to say that there remains uncertainty as to who, if anyone, bears the onus at s. 525 hearings, either when there has been an earlier bail hearing or when no earlier bail hearing has been conducted (as in this case). The Code is silent on this issue, and the Supreme Court of Canada has not yet clarified it. I am not going to venture an opinion on this point in this case because it is unnecessary to do so, and counsel were not afforded adequate notice that I considered the area of law regarding this issue to be unsettled. As I advised counsel when I told them and the Accused of my decision on November 24, 2020, regardless of whether neither party bears the onus at this hearing, or whether there is a reverse onus on the Accused under s. 515(6) because there was no earlier bail hearing, my decision would be the same. The detention of the Accused is justified under the grounds listed in s. 515(10) of the Code. The following are my reasons for that conclusion.
The Accused’s Criminal Record
[14] Despite his young age of 24, Mr. Abdi-Djama has a lengthy criminal record. It includes 11 convictions for failure to comply with an undertaking or probation order or for failure to attend and two convictions for obstruction of justice. There are two convictions each for possession of a Schedule I substance and possession of a Schedule II substance. There are four convictions for assault, one for break and enter, and one for unlawfully being in a dwelling house.
The Accused’s Release Plan
[15] The Accused proposes that he be released to reside with his sister, Milguo Djama, in Gatineau and be subject to strict conditions that he not leave her residence, except in her company. He proposes that he be subject to GPS monitoring. Ms. Djama is prepared to act at the Accused’s surety and to post a bond of $3,000. The Accused is prepared to make a cash deposit of between $2,000 and $4,000.
The Surety’s Evidence
[16] The Accused’s sister, Milguo Djama, has offered to act as his surety. She is 25 years old – just 16 months older than the Accused. She and the Accused have a close relationship and he calls her every two days. Ms. Djama has no criminal record. She has never acted as a surety for the Accused previously. She is in her last semester at Algonquin College, studying to be a developmental service worker. All her studies are currently being conducted remotely from home. Ms. Djama is otherwise unemployed. Thus, Ms. Djama is currently spending her time at home, aside from venturing out for food and other necessities. Ms. Djama will complete her educational program the second week of January, at which time she will seek employment caring for vulnerable adults, seniors, and children.
[17] Ms. Djama lives in a one-bedroom apartment in Gatineau. She has a bed in her living room, where she sleeps. Presently, she is using the bedroom as a storage area, but the Accused could sleep there if he were released.
[18] Ms. Djama proposes that the Accused reside with her and be required to stay in her apartment unless he is accompanied by her. She is adamant that she would require the Accused to abide by her house rules. She has no tolerance for guns or hard drugs. She states that she would have no hesitation to call the police if the Accused questions her authority or falls out of line. Ms. Djama acknowledges that she, and other family members, have tried very hard in the past to redirect the Accused away from a life of crime; however, they have not been successful in this respect. She is hopeful that, if she were in the role of a surety, the Accused would respect her authority. As backup to her moral suasion over the Accused, Ms. Djama is asking that the Accused be subject to GPS monitoring.
GPS Monitoring
[19] The Accused is willing to be subjected to GPS monitoring through Recovery Science Corporation. As stated in the Brief from Recovery Science Corporation, monitoring ought not to be relied upon if the required standard is to prevent violations or to ensure an immediate police response. Rather, it is best thought of as a risk management tool – it cannot prevent an accused from fleeing nor can it guarantee police intervention in a breach or offence in progress. Its value as a risk management tool derives not only from the deterrent effect resulting from the accused knowing that he or she is being monitored and that breaches of monitored conditions will be detected and reported, but also from the fact that, if the deterrent effect does not work on a particular accused, non-compliant behaviour will be detected, reported and consequenced much earlier than would be the case with an accused who is not monitored.
[20] It is unclear where the Accused would obtain money to pay for the GPS monitoring. It is the understanding of the police that the Accused’s mother has been detained in Somalia due to travel restrictions imposed because of COVID-19. The Accused’s older sister, who has acted as a surety in the past, has washed her hands of him. As the result of the pandemic, Milguo Djama has not been working since earlier this year and has no reliable source of income.
COVID-19 Pandemic
[21] The presence of the COVID-19 pandemic in our community may be relevantly material regarding all grounds of detention. In determining whether that is the case, the court should review the Accused’s age and health; the conditions at the institution in which the Accused would be detained; the effect of COVID-19, if any, on whether the Accused will attend court as required; and the effect of COVID-19, if any, on the threat posed to public safety by the Accused’s release (R. v. J.A., 2020 ONCA 660, at para. 66).
[22] Justice Thorburn in J.A. stated the following at paras. 75-77:
I accept that the COVID-19 pandemic represents a serious risk to health. Persons who are members of vulnerable communities such as those incarcerated are often exposed to greater risk of infection as they do not have the ability to move freely and self isolate. I also note that even those who are young and healthy are not immune from the risks associated with contracting the virus.
I do not suggest that for COVID-19-related health concerns to have a bearing on whether an accused’s detention is justified under s. 515(10), the accused must present evidence of particular risk. However, the absence of particular risk is relevant in assessing whether the evidence relating to the pandemic is “relevantly material” in this case.
Nor do I take lightly the respondent’s fears of contracting COVID-19. However, the present risk is low in the Stratford institution compared to the risk in the general community. If that situation changes, there may be a “relevantly material” change in circumstances.
[23] An Information Note from the Ministry of the Solicitor General dated October 19, 2020 was filed to provide evidence of the steps being taken to reduce the risk of transmission of COVID-19 within correctional institutions in the province. Those steps include the screening of every individual entering the institution. Inmates not passing the screening test are put into medical isolation. Inmates who pass the screening process are placed in an intake unit for a minimum of 14 days and monitored for symptoms before being moved into the general inmate population. The Information Note also lists the steps taken by OCDC to improve cleaning of the public areas in the institution, but the bottom line is that inmates are responsible for cleaning their own living areas. Although additional information may be provided to inmates about maintaining proper hygiene, they have to rely on one another to do so; they do not have the opportunity to engage in social distancing; and there is no mask mandate in place. Realistically, the institution is relying on efforts to ensure that positive cases of COVID-19 are detected before they gain exposure to the inmate population because there are few effective measures in place within the inmates’ living areas to prevent the transmission of the virus once it is present. Voluntary COVID-19 testing is available to all inmates and staff.
[24] As of October 16, 2020, the OCDC had no positive cases of COVID-19 amongst its inmates or staff members. Two earlier positive cases had resolved. This could change at any time.
[25] That COVID-19 is in our midst and an outbreak of the virus at OCDC could run wild in a short period of time is one factor to take into account in regard to all grounds for detention.
Delay
[26] Another relevant factor regarding all three grounds of detention is the delay in this case, not only as a result of system-wide delays caused by COVID-19, but also as a result of the need for a Garofoli application (R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421). Just the nature of such an application means that there will be numerous, albeit short, court appearances as counsel work their way through the necessary steps before a trial can be held. Apparently, although steps have been taken to initiate those pre-trial steps, specific dates have not yet been obtained. Thus, the Accused may find himself in pre-trial custody for longer than would normally be expected. The Accused was charged on June 12, 2020. Despite the slow-down in court operations caused by COVID-19 in the spring and early summer of this year, as of mid-July 2020, this court was starting to schedule events on a go-forward basis. Court dates should be able to be obtained without undue delay for pre-trial motions that are to be held virtually.
[27] Neither party has pointed a finger at the other for causing any unreasonable delays to date.
Analysis
[28] In R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, the Supreme Court of Canada emphasized the following principles:
• An accused person enjoys the benefit of the presumption of innocence until such time as he has been found guilty of an offence beyond a reasonable doubt.
• The ladder principle applies on bail applications with an unconditional release on an undertaking being the default position and more onerous provisions being imposed in release orders only to the extent necessary.
[29] Defence counsel conceded during the hearing that, considering the length and nature of the Accused’s criminal record and the nature of the offences with which he stands charged, the Accused was not asking for any form of release less onerous than a release order with very strict conditions, a surety, and GPS monitoring. As Defence counsel put it, no one can rely on the Accused’s undertaking at this point, without there being significant constraints to deter him from breaching the terms of his release.
Primary Grounds (s. 515(10)(a) of the Code)
[30] Many factors are relevant to the primary ground of detention: the nature of the offence and the potential penalty; the strength of the Crown’s case; the Accused’s ties to the community; the Accused’s criminal record and his history of compliance with court orders; the Accused’s conduct prior to arrest; and the plan of release (J.A., at para. 59).
[31] The charges against the Accused are very serious – he allegedly had possession of a loaded, restricted, concealed revolver, with a defaced serial number, in a public place, when he had no licence for it and, in fact, was subject to a weapons prohibition order. As well, several rounds of ammunition were found under his mattress. Finally, there is evidence that he was involved in the trafficking of fentanyl – a lethal drug that is rampaging the country leaving countless dead in its wake.
[32] The Crown’s case appears to be strong, assuming it survives any Charter challenge. I am not in a position to speculate on the strength of any s. 8 Charter application brought by the Accused. If the Accused is convicted of various firearms and/or drug trafficking offences, he could be facing 10 years in prison. That possibility could be a powerful motive for the Accused to disappear before trial. A GPS monitoring system cannot prevent an accused from fleeing, though it could speed up detection of his having unlawfully left his residence. I doubt that a monitoring system would act as much of a deterrent for the Accused – nothing has served this purpose for him in the past.
[33] At the time of his arrest, the Accused was living in his mother’s residence in Ottawa with his younger brother. He has other family members living in the area. However, he also spends time with his older brother in Montreal. There is no evidence that he has a spouse or children or employment in Ottawa/Gatineau that would create more binding ties to the area.
[34] As detailed above, the Accused already has a lengthy criminal record. It is clear from his record that he has not shown much respect for court orders in the past. Amongst his 11 breach convictions are six convictions for failure to appear. There is evidence that during a search of his person following his arrest, and subsequently in his interactions with correctional officers, the Accused has not shown a level of cooperation with authority figures that one might expect of someone asking the court to trust him to follow the terms of his release.
[35] To the extent that past behaviour is an accurate predictor of future behaviour, it is unlikely that the Accused will willingly accept restrictions on his activities imposed by authority figures in the future. In the past, he has not listened to those members of his family who have acted as his surety or who have otherwise encouraged him to live within the law. There is no reason to anticipate that he will listen to those family members in the future. To date, he has put what he conceives as his interests ahead of theirs.
[36] Milguo Djama believes that the Accused’s fear of contracting COVID-19 within OCDC is a powerful motivator for him to abide by the terms of any release order. Whatever fear the Accused may have in this regard is a double-edged sword. It could also lead him to promise his sister that he will abide by all his bail conditions so as to persuade her to act as his surety, even though he does not intend to do so. In regard to the risks to which the Accused is being exposed in OCDC as a result of COVID-19, there is no question that congregate living facilities, like jails, pose particular challenges in keeping their residents safe. That being said, recently, the rate of infection in Ottawa, and more broadly in Ontario and Quebec, has been higher than that at OCDC. As well, the Accused is young and healthy. There is no evidence that he is at increased risk of serious complications from a COVID-19 infection.
[37] For these reasons, I conclude that the release plan proposed by the Accused is inadequate to ensure his attendance in court. As a result, the Accused’s detention is necessary under the primary grounds.
Secondary Grounds (s. 515(10)(b) of the Code)
[38] I feel even more strongly that the Accused’s detention is necessary for the protection and safety of the public, having regard to all the circumstances including any substantial likelihood that the Accused will, if released from custody, commit a criminal offence.
[39] In R. v. Manasseri, 2017 ONCA 226, at paras. 83-88, Watt J.A. emphasized that s. 515(10)(b) seeks to ensure against recidivistic conduct on release. The court must consider whether there is a substantial likelihood that the accused will reoffend if released, not a mere possibility that he will reoffend.
[40] The circumstances that I have reviewed under the primary grounds are equally relevant under the secondary grounds and lead me to the conclusion that there is a substantial likelihood that the accused will reoffend if released, thereby putting the public’s safety at risk.
[41] The Accused has a lengthy criminal record and has shown his disrespect for court orders that limit his freedom to act. His criminal record shows that he is well ensconced in criminal activity, and there is no evidence to suggest that he has any focus elsewhere in terms of studies, a job, or law-abiding friends. The charges against him arise from an investigation that also involved his older brother. The only conclusion that can be drawn is that, left to his own devices, the Accused will very likely engage in further criminal activities which would seriously jeopardize the public’s safety. The question is whether the safeguards inherent in the Accused’s release plan would be adequate to reduce the likelihood of his reoffending to a level which is acceptable, in the context of balancing all relevant factors. In my view, the release plan does not achieve this purpose.
[42] The Accused has not cooperated with his surety in the past, even when that surety was a much older sister whose position in the family would have given her increased authority. I find it hard to accept that Milguo Djama, a sister only 16 months older than the Accused, will succeed in keeping the Accused on the straight and narrow when other, more senior, family members have been unable to do so in the past. Ms. Djama hopes that the Accused will be motivated not to follow in his older brother’s footsteps, who has been in and out of jail for many years; however, to date, his brother’s periods of incarceration have not seemed to deter the Accused from engaging in criminal behaviour.
[43] There is another weakness to the Accused’s release plan. Although Ms. Djama is currently spending most of her time at her apartment completing her final semester of a college program – something for which I heartily commend her – in the new year, she will be seeking employment as a developmental care worker. Assuming Ms. Djama succeeds in gaining employment, she will be out of the apartment for several hours at a time to attend her place of work. It is entirely possible that she will be doing shift work. The Accused would be left to his own devices in the apartment. Although a GPS monitoring system would become aware if the Accused left the apartment building at an unauthorized time, there is no evidence as to the extent to which the monitoring system would monitor the Accused’s movements within the apartment building. As well, the monitoring system would not monitor if others came to the apartment to see the Accused. It is conceivable that the Accused would be able to participate in the drug trade in some capacity from the apartment without Ms. Djama being aware of such activity or the GPS monitoring system being able to pick up that activity.
[44] Were the Accused to engage in criminal conduct of the same nature as that with which he stands charged, this would create an enormous risk to the public – whether that activity involved his possession of firearms or trafficking in fentanyl. I am well able to take judicial notice that throughout Canada, we are facing an epidemic in drug overdoses – many involving fentanyl – at the same time as we are facing the COVID-19 pandemic. From January to May 2020, there were 21 overdoses reported to the Ottawa Police Service involving purple fentanyl – the drug allegedly being trafficked by the Abdi-Djama brothers. Four of those overdoses proved fatal. As well, I take judicial notice of the connection between gun violence and drug trafficking and the devastating impact that this lethal partnership is having in communities across the country.
Tertiary Grounds (s. 515(10)(c) of the Code)
[45] Under the tertiary grounds, the detention of an accused is justified if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case; the gravity of the offence; the circumstances surrounding the commission of the offence, including whether a firearm was used; and the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment.
[46] The Crown appears to have evidence regarding the essential elements of the various offences charged, assuming that evidence is ruled admissible following the anticipated Charter challenge. As indicated above, the offences are very serious as they can lead to life and death situations.
[47] The Accused is facing a whole battery of firearms offences relating to his alleged possession of a .22 caliber revolver and ammunition – at a time when he was subject to a weapons prohibition order. It is of some significance that the police located the firearm in a bag that the Accused was wearing around his body when he left his residence and was walking down the street – a residence where his younger brother was also residing. The fentanyl was also located in that residence. If it is proven that the Accused exposed his younger brother to the dangers associated with a loaded firearm and fentanyl trafficking – in the home where his brother was residing – this would be a significant aggravating factor on sentencing.
[48] If convicted, the Accused is looking at a penitentiary term to take into account the seriousness of the offences and his significant criminal record. He could face a sentence of up to 10 years.
[49] Regarding the timeframe it will likely take for this case to reach trial, I note that, aside from the initial delays in the spring due to COVID-19, the courts have been operating quite effectively since mid-July – at least in regard to non-jury matters and matters that can be dealt with virtually. There is no reason why the various steps associated with a Garofoli application could not be pursued in a timely and efficient fashion, despite COVID-related courtroom restrictions.
[50] Section 515(10)(c) of the Code focuses on the need to maintain public confidence in the administration of justice: see R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at para. 41. The “public” consists of reasonable members of the community who are properly informed about the philosophy of the bail provisions in the Code, Charter values, and the actual circumstances of the case (Hall, at para. 41). In R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 79-80, Wagner J. (as he then was) described a reasonable member of the public as being familiar with the basics of the rule of law in our country and the fundamental values inherent in our criminal law, including those that are protected by the Charter. A reasonable member of the public is not prone to emotional reactions. At the same time, that person is not a legal expert familiar with all aspects of the criminal justice system, the essential elements of each offence, and the various defences available to an accused. A reasonable member of the public would expect that someone charged with a crime will be tried within a reasonable period of time. “This reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified” (St-Cloud, at para. 87).
[51] In my view, the Accused’s continued detention is necessary to maintain the public’s confidence in the administration of justice. As a community, we are desperately trying to prevent further deaths from firearms and from drug overdoses. These are huge public health priorities alongside COVID-19. Whereas, hopefully, one day there will be a vaccine that will reduce the risk of COVID-19 transmission, there are no easy or obvious solutions to getting illegal firearms and illicit drugs off our streets. The public would have a hard time understanding why a court, even during COVID times with the risks associated with congregate living environments, would release an accused person pending trial when there is strong evidence to support his guilt of unlawfully having a loaded, lethal weapon in his possession as he is walking down a city street, there is evidence to support his guilt of being involved in the trafficking of fentanyl, and the Accused has shown no respect in the past for undertakings given or court orders made to allow him to be released pending earlier trials. In my view, a reasonable member of the public would reason that the Accused has been given many chances in the past to show that he is worthy of the court’s trust, and he has failed miserably. It would be foolish of the court to accept the Accused’s promise to abide by his release conditions when his surety cannot be with him every hour of the day and a GPS monitoring system cannot prevent breaches but only report after the fact on detected breaches.
Conclusion
[52] For these reasons, I ordered the Accused to be detained.
Date: November 27, 2020 Aitken J.
COURT FILE NO.: 20-A10472, 20-A10834
DATE: 2020/11/27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
SHARMARKE ABDI-DJAMA
Applicant/Accused
_____________________________________________
REASONS ON 90-DAY DETENTION REVIEW (s. 525 criminal code)
Aitken J.
Released: November 27, 2020