COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Curry, 2013 ONCA 420

DATE: 20130620

DOCKET: C55966 and C56663

Feldman, MacPherson and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tristan Curry

Appellant

Tristan Curry, in person

Brian Snell, duty counsel for the appellant on the conviction appeal (C55966)

Janani Shanmuganathan, counsel for the appellant on the sentence appeal (C56663)

Avene Derwa, for the respondent

Heard: June 10, 2013

On appeal from the conviction entered on May 29, 2012 and the sentence imposed on July 23, 2012 by Justice Michael Code of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

By the Court:

[1] The appellant was convicted of possession of a loaded prohibited weapon. He was sentenced to three years and six months’ imprisonment, less 20 months’ credit for pre-sentence custody calculated at a ratio of 1:1. He appeals from his conviction and sentence.

A. Conviction Appeal

[2] The appellant argues that the police conduct at the scene, in particular, the police decision to take the appellant to the ground and handcuff him as he was about to enter a taxi with his co-accused, constituted an arrest and that the ensuing police search of his person breached his ss. 8 and 9 Charter rights.

[3] We reject this argument for several reasons.

[4] First, the trial judge rejected the suggestion that the appellant was prevented by police from entering the taxi. The trial judge held:

I am satisfied, in all these circumstances, that Curry was only asked the same kinds of “exploratory” questions as [his co-accused] were asked and that he was “delayed” from entering the taxi for less than a minute, as permitted by Suberu and Grant and without engaging s. 9 and s. 10 Charter rights. [Citations omitted.]

We agree.

[5] Second, the trial judge found that when the police took the appellant to the ground, they were acting in the exercise of their common law duty to protect life.

[6] Again, we agree. The take down of the appellant occurred after a police officer observed a gun in the possession of one of the appellant’s co-accused and shouted a warning to the other police officers. The officers attending to the appellant did not know who had the gun. Their decision to take the appellant to the ground after they heard the word “gun” shouted out by a fellow officer was made in a volatile and rapidly evolving situation. In the circumstances, this decision was both eminently reasonable and a lawful exercise of the officers’ common law detention power.

[7] Third, the trial judge found that the subsequent handcuffing and search of the appellant were similarly carried out pursuant to the police common law power of investigative detention. He stated, at para. 115:

In the case at bar, the handcuffing and the pat search for weapons of Curry [and his co-accused] lasted no more than a few seconds. They remained on the street and were not taken anywhere and confined. They were both compliant and their guns were immediately discovered. This all fits with the very definition of a common law investigative detention pursuant to Mann. [Citations omitted.]

[8] He went on to conclude, at para. 116: “For all these reasons, I was satisfied that the police were, in reality, exercising common law powers of investigative detention and not statutory powers of arrest.”

[9] We see no error in this conclusion. It follows, as found by the trial judge, that the impugned police action did not breach the appellant’s ss. 8 and 9 Charter rights.

[10] Accordingly, the conviction appeal is dismissed.

B. Sentence Appeal

[11] The appellant appeals from sentence on two grounds. He submits that the trial judge erred: (1) by denying him enhanced credit, at a ratio of 1.5:1, for time spent in pre-sentence custody; and (2) by failing to take account of the constitutional invalidity of the three-year mandatory minimum sentence provided for in s. 95(2)(a) of the Criminal Code, R.S.C. 1985, c. C-46, as pronounced in R. v. Smickle, 2012 ONSC 602, [2012] O.J. No. 612 (S.C.).

(a) Enhanced Credit for Pre-Sentence Custody

[12] At trial, the appellant argued that he should receive credit for pre-sentence custody under s. 719(3.1) of the Code at the enhanced rate of 1.5:1 because his custodial conditions at the Don Jail were harsh and, further, he was ineligible for statutory remission and parole while in remand custody.

[13] The trial judge considered, and rejected, this argument. He held:

The accused must have known, with counsel’s advice, that their chances at trial on the Charter motion were speculative at best and that they had no defence whatsoever on the merits. Although conditions at the Don Jail are harsh and I am sure that these three young men suffered during the 13 months they spent at the Don Jail, they effectively chose their own fate by instructing counsel to go to trial in a case where they had no realistic chance of success. This is one of the very few decisions in criminal litigation where the accused makes the call and counsel does not make the call for the accused and they must bear responsibility for their decision to go to trial in a case where they had no realistic chance of success on a Charter motion and no defence on the merits. I want to be very clear that I do not penalize them for exercising their right to argue a weak Charter motion. That is their right and they are entitled to have the issue litigated in this court at a trial. But exercising this right to go to trial in a weak, speculative Charter motion is not an appropriate circumstance that justifies enhanced credit under s. 719(3.1). [Emphasis added.]

[14] We accept that the trial judge did not seek to penalize the appellant for pursing his Charter rights. Indeed, the trial judge said as much. However, as we read his reasons, the trial judge rejected enhanced credit by focusing solely on what he regarded as the appellant’s ill-conceived Charter motion and meritless defence at trial. With respect, this was an error.

[15] The appellant was seeking enhanced credit on the basis of onerous remand conditions. This is a well-established ground justifying enhanced credit for pre-sentence custody: see R. v. Summers, 2013 ONCA 147, 105 W.C.B. (2d) 789.

[16] The trial judge accepted that the appellant’s remand conditions were harsh and that the appellant, like his co-accused, suffered from his detention conditions as a result. The record amply supports this characterization of the appellant’s detention conditions at the Don Jail.

[17] The fact that the appellant pursued Charter-based relief that was ultimately denied and that his defence at trial was weak does not change the nature and severity of his remand detention conditions. Those conditions warranted consideration of enhanced credit for pre-sentence custody under s. 719(3.1) of the Code.

[18] The appellant was also ineligible for remission and parole during the period of his remand custody. There was information before the trial judge indicating that during his remand detention, the appellant had voluntarily attended school, actively participated in class and completed assignments, and avoided visitors at the Don Jail in an effort to avoid conflict with other inmates. Thus, there was at least some foundation on the record to grant the appellant enhanced credit on the basis of the absence of remission and parole eligibility: see Summers at paras. 117 and 118. In his reasons for sentence, the trial judge himself noted that these factors would make the appellant eligible for remission and that he had “real rehabilitative potential”.

[19] In our view, in combination, the appellant’s conditions of remand detention and his ineligibility for remission and parole while in remand custody justified credit for his pre-sentence custody at the enhanced rate of 1.5:1 under s. 719(3.1) of the Code.

(b) Constitutionality of Mandatory Minimum Sentence, Section 95(2)(a) of the Criminal Code

[20] We see no error in the trial judge’s consideration of the decision in Smickle regarding the three-year mandatory minimum sentence provided for under s. 95(2)(a) of the Code.

[21] We agree with the Crown’s submission that the constitutionality of s. 95 of the Code was irrelevant here. The trial judge concluded that, in the circumstances of this case, a fit sentence for the appellant was in the three-year range, without regard to the newly legislated mandatory minimum sentence under s. 95(2)(a).

[22] Indeed, while the appellant’s counsel urged the trial judge to follow the Superior Court of Justice decision in Smickle, a decision appealed to this court and now under reserve, he nonetheless argued for a sentence in the range of two and one-half to three years’ imprisonment. Thus, on the appellant’s own submissions at trial, a penitentiary sentence was fit.

[23] In these circumstances, the constitutional question raised in Smickle was simply irrelevant.

(c) Conclusion

[24] We conclude that the sentence of three years and six months’ imprisonment imposed by the trial judge was fit. The appellant was in possession of a loaded, prohibited firearm in a public place. In these circumstances, an exemplary sentence was appropriate: see R. v. Danvers (2005), 2005 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont. C.A.).

[25] However, the trial judge’s approach to the calculation of credit for pre-sentence custody was flawed. Accordingly, the credit afforded to the appellant for pre-sentence custody should be calculated at the rate of 1.5:1.

C. Disposition

[26] For the reasons given, the conviction appeal is dismissed. The sentence appeal is allowed to the extent of affording the appellant credit for pre-sentence custody at the enhanced rate of 1.5:1. In all other respects, the sentence imposed remains intact. This results in a sentence of three years and six months’ imprisonment, less credit of 30 months’ imprisonment for pre-sentence custody.

Released:

“JUN 20 2013” “K. Feldman J.A.”

“KF” “J.C. MacPherson J.A.”

“E.A. Cronk J.A.”