ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 66/13
DATE: 20130207

B E T W E E N:

HER MAJESTY THE QUEEN

and -

WINSTON ELLIS

Ed Stimec, for the Crown
Leo Adler, for the accused

HEARD: February 5, 2013

Mr. Justice Kenneth L. Campbell:

Ruling on Bail Revocation Motion

Overview

[1] The jury recently returned its verdict in this case, finding the accused, Winston Ellis, guilty on all three counts of the indictment against him. More particularly, the jury found the accused guilty of the following: (1) the possession of a .25 calibre semi-automatic firearm, without being the holder of a licence under which he may lawfully possess it, contrary to s. 91(1) of the Criminal Code; (2) being the occupant of a motor vehicle in which he knew that there was a firearm, and for which no occupant of the vehicle was the holder of a permit under which he may lawfully possess the firearm in the vehicle, contrary to s. 94(1) of the Criminal Code; and (3) the possession a loaded prohibited firearm while not the holder of an authorization, licence or registration certificate under which he may lawfully possess the firearm, contrary to s. 95(1) of the Criminal Code.

[2] All of these offences flowed from the events that took place in Toronto in the early morning hours of May 24, 2010. Essentially, after drawing the attention of the police to his vehicle by racing with another vehicle, the accused tried to evade investigation and arrest by quickly driving through a residential neighbourhood and then abandoning his vehicle in a stranger’s driveway. Eventually, after the accused was arrested, his vehicle was searched and the police found a .25 calibre semi-automatic firearm inside the vehicle. The firearm was fully loaded with the six bullet magazine in the handle and another bullet in the firing chamber.

[3] The firearm uncovered by the police was stored neatly inside a hollow space beneath the faux wood panel that surrounded the manual gear shift lever between the front seats. The firearm had clearly been stored in this hidden location by the accused, who was the only driver of the vehicle. No one unfamiliar with the fittings of the vehicle could realistically have been aware of this compartment. While hidden in this unusual location, the firearm was stored in such a way that made it easily and quickly accessible to the accused from the driver’s seat of the vehicle.

[4] Prior to the guilty verdicts by the jury, the accused had been at large on a judicial interim release order for some time and had been abiding by the terms of that order. The Crown now seeks the revocation of that order, arguing that the accused should be detained in custody pending the imposition of sentence. According to s. 523(1) of the Criminal Code, R.S.C. 1985, chap. C-46, the current recognizance concerning the accused continues in force, subject to its terms, until the imposition of sentence, unless, at the time the accused is determined to be guilty, the court “orders that the accused be taken into custody pending such sentence.” Immediately after the jury’s verdict, the Crown sought to “show cause” why an order should be made detaining the accused in custody until he is sentenced, and a short hearing was thereafter conducted.

The Statutory Grounds for Detention

[5] In order to determine this question, I am obliged to consider whether the Crown has met its legal burden of showing cause that the accused should be detained according to the governing statutory criteria outlined in s. 515(10) of the Code. This section provides:

For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including;

(i) the apparent strength of the prosecution’s case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

The Positions of the Parties

[6] The Crown contends that all three grounds in s. 515(10) justify the immediate detention of the accused. In this regard, the Crown relies upon the details of the criminal record possessed by the accused, the gravity of the firearms offences committed by the accused, the reality that these are not the first firearms offences committed by the accused, the mandatory minimum term of imprisonment to which the accused is now subject, and the fact that the accused still has other outstanding charges and arrest warrants.

[7] Mr. Adler, on behalf of the accused, argues that the detention of Mr. Ellis is not justified on any of these grounds and that, accordingly, his current judicial interim release order should continue in effect. Defence counsel contends that while the accused no longer enjoys the presumption of innocence in connection with these offences, his conviction for these firearms offences should not result in his automatic detention pending sentence. Mr. Adler contends that his client has demonstrated his ability to attend court whenever required, has significant family roots in the community, poses no present danger to the public, and should remain at large until the imposition of sentence.

The Background of the Accused/Offender

[8] The accused is now 32 years of age. He lives in Toronto with his wife and three children. There is no evidence as to the nature, if any, of his employment.

[9] The accused has a criminal record. More specifically, over a decade ago, in November of 2002, Mr. Ellis was convicted of the following crimes: (1) possession of a loaded prohibited firearm; (2) possession of a firearm knowing it’s serial number had been defaced; (3) possession of a weapon (a firearm) for a purpose dangerous to the public peace; (4) possession of cocaine; and (5) failing to attend court. After serving approximately seven-and-a-half months in pretrial custody, the accused was sentenced to a global term of five months imprisonment and a three year term of probation for these offences. An order was also made prohibiting him from the possession of any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life.

[10] The accused also has unexecuted, outstanding warrants for his arrest, from the Windsor area, in relation to drug offences allegedly committed in March of 2004, and for allegedly failing to attend court in March of 2005.

[11] The Crown also led some evidence on the show cause hearing that suggested that the accused might have had previous gang affiliations and had been stopped and investigated by the police on a number of other occasions. Only one of these other investigations resulted in criminal charges against the accused, in relation to an alleged incident of violence and gunfire in September of 2004. However, this matter was ultimately resolved by Mr. Ellis entering into a peace bond. In my view, this evidence, which appears to have been led to cast an adverse light on the general character of the accused and the quality of the company he occasionally keeps, is entitled to little, if any, weight.

Analysis

1. Introduction

[12] Having carefully considered the submissions of the parties, I am driven to the conclusion that the Crown has, indeed, shown cause why the accused should be detained in custody pending the imposition of sentence. More particularly, I am satisfied that the detention of the accused pending sentence is required by the “tertiary” ground outlined in s. 515(10)(c) of the Code, as the immediate detention of the accused is necessary in order to maintain confidence in the administration of justice, having regard to the following considerations.

2. The Guilty Verdict of the Jury

[13] It is no longer necessary to address the likelihood of conviction or try to accurately assess the “apparent strength of the prosecution’s case” against the accused under s. 515(10)(c)(i) of the Code. The trial proceedings are over and the accused has already been found guilty of the alleged firearms offences by the jury. As a result of the unanimous verdict of the jury, the accused is no longer presumed innocent. Instead, there is simply an enforceable finding of guilt. As the Court of Appeal for Ontario observed in R. v. Farinacci (1993), 1993 3385 (ON CA), 86 C.C.C. (3d) 32, at p. 37:

… the presumption of innocence is spent by the verdict, be it a conviction or an acquittal. A conviction does not create a presumption of guilt. It constitutes a legal, conclusive finding of guilt. Like an acquittal, it is enforceable unless and until reversed. After a conviction, there is no presumption left, one way or the other. There is an enforceable finding of guilt.

3. The Gravity of the Firearms Offences Generally

[14] While the offences committed by the accused did not involve any actual violence against others, these firearms offences are, nevertheless, very serious crimes. The sheer gravity of these crimes is properly considered under s. 515(10)(c)(ii) of the Criminal Code.

[15] There is no gainsaying the current reality that the possession of illegal firearms is one of the most serious problems facing large urban centers in Ontario and elsewhere. Such firearms have unfortunately produced a host of tragic results in and around Toronto in particular. The human cost of such offences is often immeasurable. Well-informed, fair-minded, reasonable members of our community can only be increasingly concerned about the ongoing commission of such offences, and must have their rapt attention focused on the treatment of such offenders by the courts. Their confidence in the administration of justice must be maintained. See: R. v. Danvers (2005), 2005 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont.C.A.) at para. 77; R. v. Whervin, [2006] O.J. No. 443 (S.C.J.) at para. 14; R. v. David, [2006] O.J. No. 3833 (S.C.J.).

[16] This is not meant to suggest that the courts should pander to public opinion. Indeed, in his text, The Law of Bail in Canada (3rd ed., Loose-leaf), Mr. Justice Trotter and the authorities he helpfully discusses, at § 3.4(b), observe that courts must not “react to public clamour or hysteria” or the “visceral and negative reaction to crime and criminals” that is sometimes displayed. The courts must, rather, serve as a model of “serene, impartial and exemplary justice.” See also: R. v. Lamonte (1990), 1990 3479 (QC CA), 58 C.C.C. (3d) 530 (Que.C.A.) at p. 542. Accordingly, when considering the need to “maintain confidence in the administration of justice,” as obliged by s. 515(10)(c) of the Code, courts must concentrate on how the administration of justice would be perceived by a reasonable, fair-minded and well-informed member of the public, who is fully knowledgeable about the facts of the case and the applicable legal and constitutional principles. See also: R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at para. 41; R. v. Valente, 1985 25 (SCC), [1985] 2 S.C.R. 673, at p. 689; R. v. MacDougal (1999), 1999 BCCA 509, 138 C.C.C. (3d) 38 (B.C.C.A.) at p. 48; R. v. Mordue (2006), 2006 31720 (ON CA), 223 C.C.C. (3d) 407 (Ont.C.A.) at para. 27; R. v. Nguyen (1997), 1997 10835 (BC CA), 119 C.C.C. (3d) 269 (B.C.C.A.) at para. 18; R. v. D.(R.) (2010), 2010 ONCA 899, 106 O.R. (3d) 755 (C.A.) at para. 55; R. v. Gale, 2011 ONCA 144, [2011] O.J. No. 6410 (C.A.) at para. 25.

4. The Particular Circumstances of These Offences

[17] In the present case, the accused took the necessary steps to store a fully loaded semi-automatic handgun in a secret compartment inside his motor vehicle. There is no evidence as to why he elected to so arm himself. There was certainly no lawful justification or laudable purpose that would have permitted him to do so.

[18] Moreover, the particular manner in which this loaded firearm was stored reveals that the accused wanted to ensure that this firearm was always at the ready, and could be quickly and easily accessed in its hidden compartment whenever circumstances requiring the use of the firearm might present themselves.

[19] The secret storage of a loaded firearm, in a motor vehicle being driven by the accused on the city streets of Toronto, created a very real and significant risk to public safety. While the evidence did not disclose that the accused ever actually “used” the firearm, there is no denying that it was always ready to be used. These circumstances of the crimes committed by the accused must be taken into account pursuant to s. 515(10)(c)(iii) of the Criminal Code.

5. Mandatory Minimum Term of Imprisonment

[20] According to s. 515(10)(c)(iv) of the Code, the court must take into account whether the accused is liable, on conviction, to a “potentially lengthy term of imprisonment” or, in the case of a firearms offence, “a minimum punishment of imprisonment” for three years or more.

[21] The parties do not agree as to the potential sentence the accused now faces as a result of his conviction for these crimes. The Crown contends that, as this is the “second” series of firearms offences committed by the accused, and because the accused has been duly served with notice that an increased punishment would be sought, the accused is liable to be sentenced to at least the mandatory statutory minimum sentence of five years imprisonment, as required by s. 95(2)(ii) of the Criminal Code. On the other hand, the accused contends that, as a result of the lengthy period of time that has passed between the first and the second series of firearms offences committed by the accused, the applicable statutory mandatory minimum sentence is only three years imprisonment.

[22] In addition, the accused has indicated that he proposes to challenge the constitutional validity of this statutory three year mandatory minimum period of imprisonment. See, for example: R. v. Charles (2010), 2010 ONSC 5437, 262 C.C.C. (3d) 120 (Ont.S.C.J.); R. v. Elliston, 2010 ONSC 6492; R. v. Nur (2011), 2011 ONSC 4874, 275 C.C.C. (3d) 330 (Ont.S.C.J.); R. v. Smickle (2012), 2012 ONSC 602, 280 C.C.C. (3d) 365 (Ont.S.C.J.).

[23] The resolution of those controversial issues will have to await the sentencing proceedings in this case. However, at this point in time, and without pre-judging any of these or any other potential sentencing issues in this case, it is accurate to observe that the accused currently faces “a minimum punishment of imprisonment” for a term of three years or more.

6. Repeat Offender – Violated Prohibition Order

[24] Significantly, the accused has previous convictions for similar firearms offences, has already served a significant jail term in relation to those offences, and has been prohibited – for life – from ever possessing such a firearm again. In short, the particular circumstances of these offences display that the accused, now a repeat offender, committed serious firearms offences while prohibited from doing so. According to the opening language of s. 515(10)(c) of the Code, the court must have regard not only to the specifically enumerated statutory factors, but to “all the circumstances” of the case. See: R. v. D.(R.), at para. 54; R. v. Andersen, 2012 ONSC 6358, at para. 29. The personal antecedents of the offender are certainly one of the circumstances of this case that must be considered.

7. Conclusion

[25] In summary, I am satisfied that, having regard to all of these various circumstances, against the entire factual backdrop of this case, the immediate detention of the accused prior to the imposition of sentence is necessary to maintain public confidence in the administration of justice. In my view, fair-minded, reasonable members of the community, fully informed of all of the relevant circumstances of this case and the applicable legal and constitutional principles, and thinking about the issues rationally and dispassionately, would seriously question the due administration of our judicial interim release system if the accused were permitted to remain at large in the community pending the imposition of sentence. As McLachlin C.J.C. stated in R. v. Hall, at para. 27, “[p]ublic confidence is essential to the proper functioning of the bail system and the justice system as a whole.” See also: R. v. Mordue.

[26] I appreciate that the governing judicial authorities suggest that, at least in the pre-trial context where an accused fully enjoys the presumption of innocence, the detention of an accused based upon the “tertiary ground” in s. 515(10)(c) of the Code should be “used sparingly” and be a “relatively rare” occurrence. See, for example: R. v. B.(A.) (2006), 2006 2765 (ON SC), 204 C.C.C. (3d) 490 (Ont.S.C.J.); R. v. LaFramboise (2005), 2005 63758 (ON CA), 203 C.C.C. (3d) 492 (Ont.C.A.); R. v. D.(R.), at para. 51-53; R. v. Andersen, at para. 25. In the present case, however, the accused has been convicted by a jury of his peers and all of the statutory considerations outlined in s. 515(10)(c) of the Code are clearly evident. When these statutory considerations are properly and fairly assessed in light of all of the various factual circumstances of this case, this case requires the immediate detention of the accused pending the imposition of sentence in order to properly maintain confidence in the administration of criminal justice. See: R. v. Mordue; R. v. S.(B.) (2007), 2007 ONCA 560, 255 C.C.C. (3d) 571 (Ont.C.A.).

[27] In light of this conclusion, it is unnecessary to consider whether or not the Crown has also shown cause justifying the detention of the accused under any of the other statutory grounds for detention outlined in s. 515(10) of the Code.

Conclusion

[28] In the result, given that the Crown has met its burden and has shown cause justifying the immediate detention of the accused, I order, pursuant to s. 523(1)(b)(ii) of the Criminal Code, that the current judicial interim release order be vacated and, in its place, shall issue an order detaining the accused in custody pending the imposition of sentence.

Kenneth L. Campbell J.

DATE: February 7, 2013

COURT FILE NO.: 66/13
DATE: 20130207
ONTARIO
SUPERIOR COURT OF JUSTICE