Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Pierre Ellis
Before: Justice F. Crewe
Heard on: March 4, 9, 2016
Reasons released: March 24, 2016
Counsel:
- G. Brienza, for the Crown
- M. Martin, for Pierre Ellis
CREWE J.:
A. Introduction
[1] Mr. Ellis was tried on a single count alleging a breach of condition (iv) of his recognizance of bail, which requires that he "not be away from your place of residence except in the company of one of your sureties".
[2] The facts are for the most part not in dispute.
[3] Three issues were raised by counsel, namely: (i) was Mr. Ellis "in the company of" his surety while he went inside his former high school to speak to his former basketball coach and the surety was sitting in her car outside the school?; (ii) if the answer to question (i) is "No", is Mr. Ellis's view that he was in her company and in compliance with his bail a mistake of fact or of law?; and (iii) if there is a breach, is it appropriate to classify it as de minimis?
B. Factual Background
[4] Mr. Ellis is charged with first-degree murder. On July 11, 2014 he was ordered released on bail by Mr. Justice Nordheimer of the Superior Court of Justice with a total of 11 conditions. Condition (iv) requires that Mr. Ellis: "not be away from your place of residence except in the company of one of your sureties."
[5] He is also subject to electronic monitoring by condition (v), and on any occasion where he intends to leave his place of residence, the surety is required to submit an email to the electronic monitoring company, Recovery Science Corporation, two hours in advance of the scheduled leave time. In addition, prior to leaving the residence, the surety is required to place a telephone call to the electronic monitoring company and submit to voice recognition analysis.
[6] In addition to the 11 enumerated conditions, there are six named sureties who acknowledged bail in varying amounts, for a total amount of $277,000. Ms. Alicia Downey, Mr. Ellis's girlfriend, is one of the named sureties, having signed in the amount of $5,000.
[7] On the morning of February 17, 2015, Mr. Ellis was at Ms. Downey's residence (not his residence) and they made the required arrangements with the electronic monitoring company to leave her residence and did so at 10:35 AM, returning at 11:49 AM, according to the GPS monitoring records of Recovery Science Corporation.
[8] Ms. Downey drove with Mr. Ellis to two separate locations during the time they were away from her residence. They went first of all to a drycleaner in the Agincourt Mall. Ms. Downey waited in the car while Mr. Ellis entered the premises, in full view of Ms. Downey the entire time, to see whether his clothing was ready. It wasn't.
[9] They then drove to Mr. Ellis's former high school, Blessed Mother Teresa Catholic Secondary School, as Mr. Ellis wanted to speak to his former teacher and basketball coach, Mr. McNeilly, about having his younger brothers enrolled in a basketball summer program. Mr. Ellis and Ms. Downey both testified that before going to the high school they had returned to Ms. Downey's residence. Although this seems to be at odds with the GPS records of Recovery Science Corporation, neither the Crown nor the defence attached any significance to this apparent discrepancy, and neither do I.
[10] Upon arrival at the school, they parked at the rear of the school outside the gym doors. They evidently waited together in the car for a period of time, as surveillance video notes Mr. Ellis leaving the vehicle alone and entering the school at 11:29:59 a.m., while police constable Richard Davies had noted the presence of the vehicle with two occupants when he arrived and parked in the same area (where he normally parks) at approximately 11:20 a.m. Officer Davies is the school resource officer at that school.
[11] Shortly after 11:30 a.m., surveillance video inside the school shows Mr. Ellis, alone, at the door to the cafeteria, where he had expected to find Mr. McNeilly working during the lunch break. Not finding Mr. McNeilly in the cafeteria, he went to the office to try and find him, and while there he met officer Davies. They had a brief conversation, and officer Davies walked back toward the cafeteria with Mr. Ellis and the school secretary, Rose Milne. (The three are seen on video walking toward the cafeteria). Mr. Ellis entered the cafeteria and spoke with Mr. McNeilly, while officer Davies went to the guidance office and made inquiries through Toronto Police Service to determine the conditions of Mr. Ellis's bail. He testified he was aware that Mr. Ellis was on bail for serious charges, and was "shocked" to see him at the school. After discovering that Mr. Ellis's bail required him to be in the company of a surety while away from his place of residence, he determined that he was in breach but was unable to find Mr. Ellis inside the school. Upon checking the area where the car had previously been parked, he noted that it was gone.
[12] Kirt McNeilly testified that he indeed met with Mr. Ellis and had a short conversation, perhaps 5 to 10 minutes, about summer basketball. He told Mr. Ellis to put his request in writing and he would submit it to the school principal.
[13] Ms. Downey testified that she did not go inside the school with Mr. Ellis because she wasn't feeling well, and she knew that he would be quick. Under cross-examination, she maintained that she was fulfilling her duty as a surety, because she was "right there". She did agree that this situation was different from his attendance at the dry cleaner, where she could see him the entire time.
[14] Mr. Ellis did not feel that he was in breach of his bail condition because Ms. Downey brought him to the school, and "I thought I was in her company."
[15] It is common ground that Mr. Ellis was away from the vehicle for a short period of time, perhaps 5 to 10 minutes in total. It is also clear that, had he been able to locate Mr. McNeilly on his first attempt, that time period would have been even shorter.
C. Positions of the Parties
[16] Ms. Martin frames her submissions around the three separate issues outlined above. First, she submits that if the court which granted Mr. Ellis bail had meant for him to be in the continuous company of one of his sureties while away from his residence, then it ought to have said so. The issue as she sees it is therefore one of drafting. She submits Mr. Ellis was in compliance with the condition as written in his present bail.
[17] Mr. Brienza submits that the inclusion of the word "continuous" does nothing to modify the plain meaning of the phrase "in the company of". In other words, had condition (iv) required Mr. Ellis not to be away from his residence except in the continuous company of one of his sureties, the word "continuous" would in effect be surplusage.
[18] Secondly, Ms. Martin says there is no evidence that Mr. Ellis intentionally breached his bail. To the contrary, she submits, it is clear throughout that Mr. Ellis made every effort to comply with his bail: he and Ms. Downey together made the required arrangements with the electronic monitoring company in advance of leaving Ms. Downey's residence, including an email two hours in advance, and voice verification 15 minutes prior to leaving her home. In addition, Ms. Downey accompanied Mr. Ellis to both the dry cleaner and the school, in compliance with condition (iv) of his recognizance. If Mr. Ellis was wrong in his interpretation of the requirements of condition (iv), his error was one of fact, not law, and therefore entitles him to an acquittal.
[19] Mr. Brienza submits that if Mr. Ellis interpreted his condition as not requiring him to be in the continuous company of his surety, his interpretation constitutes an error of law and does not provide a defence to the charge.
[20] Finally, Ms. Martin submits that in the event the Crown is found to have proved a breach, on the facts of this case the defence of de minimis is available to Mr. Ellis.
[21] Mr. Brienza submits that this breach of condition (iv) could hardly be classified as de minimis. On the facts of this case, Mr. Ellis was released on bail on the most serious charge in the Criminal Code, and was inside a public school building during the lunch recess, when teenage students were milling about in great numbers. Mr. Ellis was out of Ms. Downey's sight for several minutes. In those circumstances, he was in direct contravention of his bail condition, and the risk to the public was real.
D. Analysis
The First Issue — "In the Company of"
[22] Any analysis of this issue must begin with the meaning of the phrase "in the company of." It is the plain, everyday meaning of the phrase which matters. Generally, when we speak of being "in the company of" someone, we mean we are "with" that person; physically in their presence. The Shorter Oxford English Dictionary defines "In company with" as "together with", and "Keep company" as "with, together". Similarly, it defines "with" as, inter alia, "In the company, society or presence of". (emphasis added)
[23] A similar result comes from examining the purpose behind the condition. When one views the recognizance and its conditions as a whole, it is clear that the intent of the Justice who ordered the release of Mr. Ellis was, inter alia, to restrict his freedom of movement. This is made clear by several of the enumerated conditions:
- (i) Remain within the Province of Ontario;
- (iii) reside at 360 Concordia Court in Oshawa, Ontario with your parents and be amenable to the routine and discipline of that address;
- (iv) not be away from your place of residence except in the company of one of your sureties;
- (v) be subject to electronic monitoring, including GPS monitoring…
- (ix) within 24 hours, deliver to the Toronto Police Service …your passport and all travel documents and not apply for such documents;
- (x) present yourself at the front door of your residence within 5 minutes of any such request being made by a police officer, and;
- (xi) have a copy of the conditions of your release on your person at all times while outside of your place of residence and produce them to any police officer if requested.
[24] That Mr. Ellis' whereabouts were to be closely monitored is also evidenced by his release under the direct supervision of a total of six sureties, who collectively acknowledged responsibility in the amount of $277,000, with the most significant signatory responsible in the amount of $250,000.
[25] In The Law of Bail in Canada, (3rd ed., Carswell) Mr. Justice G. Trotter details the origins of the current bail regime in Canada. At p. 7-10, addressing the common law powers of sureties, he states: "…an accused person on bail is considered to be in the constructive custody of his/her sureties. Thus the law contemplates some measure of physical control by the accused's sureties."
[26] In that same chapter, Justice Trotter notes (at p. 7-7), citing R. v. Patko (2005) 2005 BCCA 183, 197 C.C.C. (3d) 192 (B.C.C.A.): "The duty of the surety is to ensure the good behaviour of the accused while on bail and render him if he does not appear to be keeping the peace and being of good behaviour." Justice Trotter continues: "The wording of the recognizance (form 32), prescribed by the Criminal Code, favours this broader interpretation of the surety's responsibilities. The recital to this form provides:
Be it remembered that on this day the persons named in the following schedule came before me and severally acknowledged themselves to owe to her Majesty the Queen the several amounts set opposite their names… To be made and levied of their several goods and chattels, lands and tenements, respectively, to the use of her Majesty the Queen, if the [accused] fails in any of the conditions hereunder written. [Emphasis added]
[27] Justice Trotter also notes (p. 7-8): "while the constructive jailer model, in its literal sense, may be anachronistic, requiring the surety to provide some measure of supervision over the accused's daily activities is both realistic and desirable."
[28] The bail order in this case clearly contemplates such control of Mr. Ellis by his surety (s) while he is away from his place of residence, reflected by the various conditions, the number of sureties and value of their collective obligation.
[29] Once Mr. Ellis closed the door of the school behind him, Ms. Downey lost her ability to exert any level of control or supervision over him. She could not control what he did, whom he approached, what he said, when (or indeed if) he returned to her company, or where else he may have gone, as the entrance by the gym doors was not the only entrance to the school. There is no qualitative difference between the facts of this case and dropping him at the mall to do some shopping. Mr. Ellis's good intentions for attending at the school are really beside the point. He was bound by his conditions and had a duty to abide by them.
[30] During submissions, a number of scenarios were put forth for consideration, such as whether the attendance at a restaurant with Mr. Ellis by his girlfriend would result in a breach if he had to enter the washroom and thus be out of her sight. It is a tempting analogy, however in the washroom, he is not outside the sphere in which the surety retains the ability to supervise and control his actions. (There are also of course privacy issues associated with a washroom.) More to the point, the Crown would be hard-pressed to argue in those circumstances that he was not "in her company". Mr. Ellis was out of Ms. Downey's sight and thus control for several minutes, in a very public environment, and thus in contravention of both the spirit and wording of the conditions of his bail.
[31] I am further of the view that there is nothing ambiguous in the drafting of this condition. Had the condition read: "not leave your place of residence except in the company of one of your sureties", it could be argued that a level of ambiguity exists which may provide a defence to Mr. Ellis on the facts of this case. However, that is not the case. The condition on its face requires Mr. Ellis, while away from his residence, to be in the company of one of his sureties. I agree with Crown counsel that the word "continuous" would add no force to this condition, and would in fact be surplusage.
The Second Issue — Mistake of Law or Fact?
[32] Mr. Ellis testified that he felt he was in compliance with his bail, in that "I thought I was in her company." He was not, for reasons detailed above, in her company. If his error is a mistake of fact, it affords him a defence; if a mistake in law, it does not. (R. v. Withworth, 2013 ONSC 7413, [2013] O.J. No. 5708, On. SCJ; Trotter, J.: R. v. Rundle [2008] O.J. No. 188, On. SCJ: Newbould, J.)
[33] To begin with, "…the offence of failing to comply with the condition of a recognizance is a true criminal offence requiring proof of mens rea and mere carelessness or failure to take the precautions that a reasonable person would take will not support a conviction…" (R. v. Legere, [1995] O.J. No. 152 (Ont. C.A.) at para. 33).
[34] That said, it is not the intention to breach the bail that the Crown must prove, but the intention to commit the acts which constitute the actus reus of the offence. (R. v. Custance 2005 MBCA 23, [2005] M.J. No 30 (Man. C.A.) at para. 12-13; R. v. Forster, [1992] 1 SCR 339, para. 14-15).
[35] Thus, the Crown is not required to prove that Mr. Ellis intended to breach his bail, only that he intended to do that which he is alleged to have done, be away from the company of his surety, notwithstanding his belief that he was in her company. If his misunderstanding constitutes a mistake of law, then he is not entitled to an acquittal on that basis.
[36] In Rundle, supra, at paragraph 12, Justice Newbould notes: "Misapprehension as to what the terms mean is a mistake of law."
[37] The Custance case dealt with an alleged breach of recognizance where the accused was released on bail with the condition that he reside at a particular address. At 9:00 PM the day of his release, Mr. Custance discovered that his friend had not yet obtained the keys to the specified apartment. Mr. Custance, in an attempt to comply with his recognizance, drove to the parking lot of the apartment building and slept in his car for three days. In upholding his conviction, the Manitoba Court of Appeal held, at paragraph 17:
"In this case, the accused appeared to rely on two mistakes. The first was that Mr. Gaudet had secured an apartment at the address specified. That was a reasonable mistake of fact. Mr. Gaudet gave the address in open court. There was no reason the accused should not have relied on that representation… However, once he arrived at the apartment he was told that the keys to the apartment were not available and would not be available within the next little while. It was at this point that the second mistake occurred. Instead of giving himself up to the police as being unable to comply with his recognizance and waiting in custody for another residence to be obtained, he stayed in a car in the parking lot under the mistaken belief that such action would constitute compliance with his recognizance order. This was a mistake of law, and such a mistake, unlike mistake of fact, does not negative mens rea. By residing in his car in the parking lot all weekend (in an attempt to comply with the recognizance), the accused was mistaken about the legal consequences of his actions and was therefore operating under a mistake of law."
[38] In Forster, supra, the Supreme Court of Canada held, at paragraph 15:
"it is a principle of our criminal law that an honest but mistaken belief in respect of the legal consequences of one's deliberate actions does not furnish a defence to a criminal charge, even when the mistake cannot be attributed to the negligence of the accused…This Court recently affirmed in R. v. Docherty, [1989] 2 SCR 941, at p. 960, the principle that knowledge that one's actions are contrary to the law is not a component of the mens rea for an offence, and consequently does not operate as a defence."
[39] Ms. Martin commends to the court, in support of the defence of mistake of fact, Justice Trotter's decision in Withworth, supra. At paragraph 13, the Court notes:
"Due to the fact that s.145(3) requires proof of subjective fault, an accused person who raises a reasonable doubt about an honest but mistaken belief of fact cannot be found liable. This sometimes gives rise to claims of forgotten court dates and misunderstood bail conditions. Depending on the circumstances, even a careless mistake may be tenable, as long as it falls short of the "deliberate" ignorance required to establish liability based on wilful blindness."
[40] I do not take Justice Trotter, in his reference to "misunderstood bail conditions" to suggest that a mistaken impression of what a bail term means is a mistake of fact. Indeed, in the paragraphs that follow the above quote, he discusses at length the difference between mistake of fact and mistake of law in the context of interpretation of bail terms, citing the quote from Forster noted in the preceding paragraphs. The basis, at least in part, upon which he dismissed the appeal from acquittal was that Mr. Withworth claimed to have forgotten about the non-driving clause in his recognizance, which Justice Trotter described as "…capable of being a mistake of fact." (para. 16)
[41] I accept Mr. Ellis's evidence that he did not intend to breach his bail. Indeed, up until the point at which he left Ms. Downey alone in the car and attended inside the school, he had taken all required efforts to be in compliance. I further accept that he honestly believed he was in compliance with his bail. However, his belief in that regard was mistaken, and clearly, on the authorities above, it was a mistake of law, not fact and therefore provides no defence to this charge.
[42] I also note that on Ms. Downey's evidence, it is evident that she may have at least considered whether his leaving the car by himself constituted a breach of his bail. When asked why she did not go into the school with him, she noted that she wasn't feeling well, and she knew he would be quick. Whether her implicit concerns about a potential breach were communicated to Mr. Ellis, the record is silent. It is of course Mr. Ellis's state of mind that is ultimately relevant to the determination of this case, not Ms. Downey's.
De Minimis Non Curat Lex
[43] Finally, Ms. Martin urges the court to find that any breach found on these facts ought to be treated in law as a de minimis breach, thus entitling Mr. Ellis to an acquittal.
[44] Mr. Ellis's motives for attending at the school were lawful and indeed worthwhile. He wished to ensure that his younger brothers became engaged in the pursuit of basketball, at least in part to ensure that they stayed out of trouble. His stated intention to go to the school to meet with his former coach was demonstrated by the objective evidence, namely, the surveillance videotapes which show him walking immediately to the cafeteria where he expected to find Mr. McNeilly at work during the lunch hour. Furthermore, in cross-examination, officer Davies agreed that when he met Mr. Ellis he did not attempt to run from him or to hide what he was doing, and he did not react to the officer's presence in a fashion that led the officer to believe he was up to anything illegal.
[45] In R. v. Murdock, [2003] O.J. No. 2470, at paragraph 29, Doherty, J.A. notes: "The de minimis defence at common law operated to prevent the conviction of those whose conduct, while falling within the four corners of the penal provision, were so trivial as to pose no risk to the public interest" (see also R. v. Juneja 2009 ONCJ 572, per Duncan, J.)
[46] It is not possible in my view to resolve this issue without having regard for the fact Mr. Ellis was on release for first degree murder, the most serious charge in the Criminal Code, one for which bail is rarely sought and even more rarely granted. Furthermore, his bail contained strict conditions requiring supervision and a significant surety commitment. In those circumstances, he was out of the sight and direct control of his surety for 5 to 10 minutes, during which he was inside a school at the lunch recess, with students milling about the hallways. Notwithstanding his good intentions, this is precisely the type of situation the bail order was designed to prevent. On those facts, in my view the defence of de minimis does not avail.
[47] By way of comparison, Mr. Brienza submitted that Mr. Ellis was in breach of his bail when he entered the drycleaner premises while Ms. Downey again waited in the car. I disagree with that submission, as Mr. Ellis remained in full view of Ms. Downey and under her direct supervision. If I am wrong in that assessment, and it does constitute a breach, it is one that would, in my view, attract the application of the de minimis principle. Likewise, the restaurant/washroom example noted above would, if it is a breach (which I do not believe it is), attract the application of that common law principle.
Conclusion
I am satisfied beyond a reasonable doubt that the Crown has proved a breach of Mr. Ellis's recognizance, and I therefore find him guilty.
Released: March 24, 2016
Signed: Justice F. Crewe