



COURT OF APPEAL FOR ONTARIO

CITATION: R
    v. Daye, 2021 ONCA 671

DATE: 20210927

DOCKET: M52800 (C68657)



Paciocco
    J.A. (Motion Judge)

BETWEEN

Her Majesty
    The Queen

Respondent

and

Jamal Daye

Applicant/Appellant

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. Dayes 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. Dayes 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. Dayes 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. Dayes 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.
    Dayes 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. Dayes release plan is meant to address this and
    that his mother and sister are appropriate sureties. Ultimately compliance
    depends upon Mr. Dayes readiness to comply. I have sufficient concerns in this
    regard that I am not persuaded that Mr. Dayes 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. Dayes continued
    detention pending appeal.

David M. Paciocco J.A.


