COURT FILE NO.: CR-20-008593-00BR
DATE: 20201203
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
OMAR JAMA
Applicant
– and –
HER MAJESTY THE QUEEN
Respondent
Mitch Engel, for the Applicant
A. Neil Singh, for the Crown
HEARD: November 26, 2020
reasons for decision – bail review
edwards J.:
Overview
[1] The Applicant seeks an order releasing him on bail on grounds that there has been a material change in circumstances since the denial of bail by Justice of the Peace Shusterman on September 1, 2020. The change in circumstances argued by the Applicant is that there is a stronger plan of supervision now being proposed with the addition of electronic monitoring, as well as a medical condition which it is argued has not been accommodated as required while he has been detained in custody.
The Facts
[2] The Applicant is 24 years of age with no prior criminal record. The Applicant is charged with weapons dangerous and unauthorized possession of a firearm.
[3] On August 14, 2020, police were called to a location in the City of Vaughan with respect to calls regarding sounds of gunshots. When the police arrived at the scene, they received information that someone who had been shot left the scene in a vehicle, that person was ultimately located later that evening at a local hospital where he was being seen with respect to five gunshot wounds. That individual is the Applicant.
[4] As a result of information received by the police from various witnesses at the scene, the police located a gun that it is alleged was in the possession of the Applicant. The information provided to the police led to the conclusion that the Applicant was involved in the shootout that took place on the evening of August 14, 2020.
[5] In his affidavit, the Applicant deposes that he suffered several injuries on August 14, 2020, including gunshot wounds to his stomach, hip, shoulder blade, shin and ankle. The Applicant further goes on to depose that his pelvis was shattered and that there is a hole in his tibia, with a bullet remaining in his shin and bullet fragments in his hip and ankle.
[6] The Applicant was hospitalized for approximately six or seven days, after which he was transferred to a rehabilitation centre where he continued to receive treatment until he was transferred to the Toronto South Detention Centre (“TSDC”). Since his arrival at the TSDC, the Applicant deposes that he has been housed in the infirmary. He receives rehabilitation treatment every Tuesday, consisting of various exercises and massages that he is to self-administer. The Applicant maintains that his rehabilitation has been severely hampered as a result of his being in custody.
The Proposed Plan of Release
[7] When the matter initially came before the Justice of the Peace on September 1, 2020, the plan of release included a surety, specifically the Applicant’s aunt who works as an educational assistant with one of the local district school boards. Ms. Fadumo Jama deposed that she would supervise her nephew (the Applicant) utilizing various cameras that she intended to install in her residence. At the initial bail hearing, Crown counsel took no issue with the secondary ground and focused the Crown’s argument opposing release on the tertiary ground.
[8] Dealing with the tertiary ground, the Justice of the Peace determined that the Crown had an “extremely strong case” against the Applicant given the numerous independent witnesses who observed the shootout and described the individuals involved. Amongst those witnesses, were several witnesses who observed the Applicant holding a gun and being shot.
[9] As for the circumstances surrounding the commission of the offence, the Justice of the Peace concluded that those circumstances were serious as it is alleged that the Applicant was one of several individuals who fired between 15 and 20 shots at one another.
[10] As for the plan of release, the Justice of the Peace concluded that the plan was a strong one as the Crown had conceded. As for the issue of COVID-19, the Justice of the Peace concluded that there was no evidence that the Applicant suffered from any condition that by inference would render him more susceptible to contracting COVID-19 while incarcerated. While it was submitted on behalf of the Applicant that it was unknown whether the Applicant had received appropriate rehabilitative care for his gunshot wounds, the Justice of the Peace concluded - in my correctly, that there was no evidence to indicate one way or the other as to whether this was correct.
[11] Ultimately, the Justice of the Peace concluded that a member of the public would lose confidence in the administration of justice if the Applicant was released, and as such ordered his detention on the tertiary ground.
[12] The Applicant, in addition to his own affidavit, has submitted the further affidavit of his aunt detailing the electronic monitoring that is now proposed as part of his plan of release. While the electronic monitoring will, of course, provide an additional measure of deterrence in terms of the Applicant leaving his surety’s home, it does not actually prevent the Applicant from doing so.
[13] The Applicant has also filed the report of Dr. Orkin, who is an epidemiologist whose affidavit/expert evidence has come in for a considerable judicial scrutiny, some positive and some negative, since COVID-19.
[14] The affidavit of Dr. Orkin was sworn on May 20, 2020. As such, the evidence of Dr. Orkin can only realistically address the impact of COVID-19 as it relates to persons incarcerated in Ontario up to May 20, 2020. Dr. Orkin does not depose in any way with respect to the Applicant and his present state of incarceration in the infirmary at the TSDC. I also note that I have no medical evidence filed on behalf of the Applicant that specifically addresses his present medical needs in terms of whether or not they are being met in his present situation. Other than the clinical notes and records from medical personnel at the TSDC, there is no medical evidence that addresses the question of whether the Applicant, given his present situation and medical condition, is rendered any more susceptible to contracting COVID-19 than any other member of society. There is also no medical evidence that his medical and rehabilitation needs are not being met.
[15] As a result of the injuries suffered in the shootout, Mr. Jama is confined to a wheelchair. Mr. Jama deposes in his affidavit that because he is in a wheelchair it is impossible to properly socially distance from other inmates and staff at the jail.
[16] It is contemplated that because Mr. Jama would be under house arrest, he would be in a better position to socially isolate. While the plan of release does not directly address Mr. Jama’s rehabilitation needs, the court could reasonably infer that his prospects for rehabilitation may be better served at home. A review of the medical records from the TSDC establish that Mr. Jama’s immediate medical needs are being looked after.
Analysis
[17] In any bail application it is always important to remember that someone like Mr. Jama, despite the strength of the Crown’s case supported by various eyewitnesses, is presumed innocent. As well, it is always important to do much more than simply pay lip service to Mr. Jama’s Charter right not to be denied reasonable bail.
[18] Recent jurisprudence from the Supreme Court has made clear that bail should only be denied to an accused person in a “narrow set of circumstances, and only when necessary to promote the proper functioning of the bail system” (see R. v. Antic, 2017 SCC 27). I am also reminded that in Mr. Jama’s application his incarceration pending a trial is not and never should be the norm (see R. v. Myers, 2019 SCC 18).
[19] Mr. Singh on behalf of the Crown concedes, the primary and secondary ground for detention are not engaged in this bail review. The tertiary ground engages a review of:
the apparent strength of the prosecution’s case;
the gravity of the offence;
the circumstances surrounding the commission of reoffence, including whether a firearm was used; and
the fact that the accused may be liable on conviction to a potentially lengthy term of imprisonment.
[20] Any consideration of the aforesaid factors leaves me with little doubt that the charges Mr. Jama faces are very serious and include the use of a firearm. If convicted Mr. Jama could potentially face a minimum term of imprisonment of five years. As for the apparent strength of the Crown’s case, Mr. Engel quite properly conceded that the Crown did in fact have a strong case, and as such all four factors this court is required to consider under s. 515(10)(c) weigh in favour of detention.
[21] Mr. Engel refers the court to a decision of Dawe J. in R. v. Tully, 2020 ONSC 2762, where Dawe J. stated at para. 40:
Finally, I am satisfied that a reasonable member of the public would understand that there are important social benefits of reducing the size of the remand population during the COVID-19 crisis…
[22] At para. 41, Dawe J. goes on in Tully to state:
Balancing all of these factors, I agree with the conclusion reached by Spies J. in R. v. Ali, supra at para. 98:
[I]n these extraordinary times, it would bring the administration of justice into disrepute if someone who has met his onus on the secondary ground is not released notwithstanding strong tertiary ground concerns on the four statutory factors. In my view, any concerns that a reasonable person might have about the impact an order releasing Mr. Ali might have on the administration of justice in circumstances such as these are minimized in the face of the COVID-19 crisis as it pertains to our jails and the release plan proposed by Mr. Ali.
The accused in Ali, like Mr. Tully, faces very serious charges that include charges relating to the possession of a mixture of heroin and fentanyl for the purpose of trafficking and possession of a loaded firearm, and like Mr. Tully has a prior criminal record for similar offences. In my view, the considerations outlined by Spies J. apply equally to Mr. Tully. Even though the four statutory factors favour his continued detention, I am satisfied that a reasonable and well-informed member of the public would still consider his release under a well-constructed and strict bail plan as the best option for the administration of justice in the circumstances that now exist in Ontario.
[23] In essence, the argument advanced on behalf of Mr. Jama, in circumstances where the Crown relies solely on the tertiary ground for detention, is whether a reasonable and well-informed member of the public would still consider that Mr. Jama’s release was well-constructed with a strict bail plan as being the best option for the administration of justice. This is particularly so where all four factors the court is required to consider are engaged and favour detention.
[24] What distinguishes the facts in Ali and Tulley from the facts before this court, are allegations that Mr. Jama participated in what can only be described as a gun fight that took place in a residential area. By no stretch of the imagination would it be unfair to consider that an exchange of gunfire in a residential area could very well result in death or serious injury to innocent bystanders.
[25] In R. v. McGowan, [2009] O.J. No. 3686, Trotter J. (as he then was), dealt with a bail review where the accused, with no prior criminal record, was involved in a shooting in her capacity as the driver of a vehicle. The accused in McGowan drove three men to a drive-by shooting and then assisted them in their escape. While the initial detention order was made on both the secondary and tertiary ground, Trotter J. ultimately concluded that the initial detention order made which engaged the secondary ground could not be sustained. Nonetheless, Trotter J. agreed that the tertiary ground was properly engaged, concluding that public confidence in the administration of justice would not be maintained if Ms. McGowan was released. In coming to this conclusion, Trotter J. quoted from R. v. Zekarias, [2008] O.J. No. 1478, where McCombs J. observed at para. 27:
Guns have become a scourge in our community. People have become justifiably fearful that gunfire may erupt at any time, even in crowded, popular areas frequented by law-abiding citizens. The public has the right to expect its courts to act firmly and decisively in the face of brazen, callous and outrageous conduct such as that here.
[26] I can do nothing better than agree with the aforesaid comments of McCombs J. It is clear that little has changed since 2008. Guns remain the scourge in our community, and all too often media reports reflect the fact that there are too many people in our community with little or no respect for life and the potential impact that the use of guns may have on innocent bystanders. Similar comments can be found in the decision of Gans J. in R. v. Hipplewith, [2006] O.J. No. 5057, at para. 14.
[27] I am not satisfied that Justice of the Peace Shousterman improperly applied the tertiary ground for Mr. Jama’s detention. A reasonable member of the public informed about the presumption of innocence and an accused’s right not to be denied reasonable bail would conclude that to release Mr. Jama, even under strict terms of house arrest, would bring the administration of justice into disrepute.
[28] There is no evidence that Mr. Jama is any more susceptible to contracting the COVID-19 virus than any other member of the community. The COVID-19 pandemic was properly considered by the learned Justice of the Peace. While the COVID-19 pandemic may be considered as a material change in circumstances, in this case it has already been properly considered. There is no new evidence that would warrant the court considering the COVID- 19 pandemic in this application.
[29] It is also argued on behalf of Mr. Jama that because of the injuries that he is presently recovering from and the fact that he is confined to a wheelchair, that he needs more physiotherapy and rehabilitative treatment. There is no medical evidence before me that suggests that Mr. Jama’s immediate physical needs are not being met in the TSDC. In the event further evidence in this regard materializes and demonstrates that Mr. Jama is not receiving appropriate medical treatment, the court would consider a further application supported with appropriate medical evidence.
[30] The application made by Mr. Jama is therefore dismissed.
Justice M.L. Edwards
Released: December 3, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
OMAR JAMA
Applicant
– and –
HER MAJESTY THE QUEEN
Respondent
REASONS FOR DECISION – BAIL REVIEW
Justice M.L. Edwards
Released: December 3, 2020