Court File and Parties

COURT FILE NO.: CR-17-3967-BR DATE: 20200512 CORRECTED RELEASED: 20200513 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Curtis Marcelles Elliott Applicant

Counsel: Jennifer Holmes, for the Crown Laura Joy, for the Applicant

HEARD: By audio conference April 27 and 29, 2020

Amended Decision: Paragraphs [10] and [14] of the original decision was corrected on May 13, 2020 and the description of the correction is appended.

Ruling on application for second bail review

Pomerance J:

[1] Curtis Elliott has applied under s. 520 of the Criminal Code, R.S.C. 1985, c. C-46, for a second review of his detention order.

[2] Mr. Elliott is charged with 33 offences relating to possession and trafficking of firearms and ammunition. The Crown’s case includes testimony from undercover police officers who say that they purchased firearms from the accused. The trial is underway before Verbeem J. but continuation dates are uncertain, given the COVID-19 crisis, and the suspension of regular court operations. Trials are not, at present, being heard, though other types of proceedings are being conducted remotely. Counsel estimate that the trial requires two to three more weeks of court time.

[3] It is for the trial judge to assess the ultimate strength of the Crown’s case. For present purposes, I observe that some of the allegations are corroborated by wiretap evidence, and video evidence depicting the accused exchanging weapons for cash. Mr. Elliott has a lengthy criminal record, including several prior convictions for failure to comply with court orders.

[4] I have determined that the application for review must be dismissed. There is no material change in circumstance that displaces the need for detention on the secondary ground. Having arrived at that conclusion, I need not consider the tertiary ground. I will explain this conclusion in the reasons that follow.

PROCEDURAL HISTORY

The Original Detention Order

[5] On September 21, 2016, Mr. Elliott was detained by Justice of the Peace Hoffman on the secondary and tertiary grounds. Regarding the secondary ground, the justice of the peace stated that, given Mr. Elliott’s criminal history, she did not believe that he was able or willing to comply with court ordered conditions. His record is substantial and contains 19 prior convictions for failing to abide by court orders.

Review by King J.

[6] On October 4, 2019, the matter came before King J. of our court for a bail review under s. 520 of the Code. In his thorough and detailed reasons, King J. found that the justice of the peace had not erred in detaining Mr. Elliott. Justice King further found that there was no material change in circumstance that affected the secondary or tertiary grounds such as to warrant release.

This Review

Alleged Errors

[7] Justice King concluded in his review that was no error in the justice of the peace’s reasons detaining the accused. That decision stands. It is not under review on this application. The only justiciable issue before me is whether there has been a material change in circumstance.

Material Change in Circumstance

[8] Before me, the defence argues that the following circumstances warrant a de novo review:

The proposed sureties;
Electronic monitoring;
The availability of treatment with Dr. Ahmad;
The COVID-19 pandemic; and
The passage of time.

[9] Some of these circumstances are not “new”. In assessing the secondary ground, Justice King specifically considered supervision by two of the proposed sureties. He also considered the impact of electronic monitoring and the availability of treatment with Dr. Ahmad.

SURETIES

[10] Mr. Elliott proposes four sureties on this review: his aunt, Heather Elliott, her husband Mr. Radney, and Mr. Elliott’s partner, Cierra Ingram. Ms. Elliott and Mr. Radney are proposed as residential sureties, whereas Ms. Ingram is proposed as a supervising surety. So too, is Ms. Ingram’s brother, Antwan Ferguson.

[11] On the review before Justice King, Heather Elliott had been the proposed surety. It was contemplated that her husband, Mr. Radney would assist in supervising the accused while he lived in their home. The defence was originally going to propose Ms. Ingram as a residential surety, but the plan changed when the Children’s Aid Society raised concern. Ms. Ingram was not put forward as a surety on that occasion.

[12] Justice King was not persuaded that the plan addressed secondary ground concerns. At that time, Ms. Elliott and Mr. Radney did not fully understand the charges against Mr. Elliott. Counsel for Mr. Elliott says that that has now changed; they are now fully informed and still wish to act as sureties. I do not see this as a material change for purposes of s. 520. The sureties ought to have been apprised of the relevant circumstances before the first review. In any event, quite apart from their awareness of the charges, Justice King found that, despite their noble intentions, they could not effectively prevent Mr. Elliott from commission of further offences.

[13] This was, in part, due to the nature of the crimes in issue. Justice King accepted that someone would always be in the home to supervise the accused. He was also satisfied that electronic monitoring would allow for detection of Mr. Elliott’s movements. Justice King was concerned that the accused might be able to continue trafficking in firearms despite these safeguards. Mr. Elliott had managed in the past to be highly resourceful with the telephone and had managed to move firearms by directing others to do his bidding. Residential supervision and electronic monitoring did not necessarily protect the public from the commission of further crimes. There remained a substantial likelihood that the public would be endangered if Mr. Elliott was released on bail. As Justice King put it at paras. 84 and 85:

These concerns are compounded by the fact that while the GPS monitoring system will adequately record the movements of the accused, he can still become involved in the trafficking of weapons from his aunt’s residence.

He has engaged in serious and violent criminal behaviour in the past without regard for the law. He has never demonstrated an ability or willingness to comply with court-ordered conditions. Despite their good intentions, I have no confidence that Heather Elliott and/or David Radney will be able to exert any significant control over Mr. Elliott.

[14] Is the addition of Ms. Ingram as surety a material change? I think not. Ms. Ingram has had her own interactions with the criminal justice system and is alleged to have been involved in an earlier incident involving the transfer of a firearm. Moreover, she has been the victim of past assaults by Mr. Elliott. It is said that Ms. Ingram has turned her life around and is now a law-abiding citizen. Even if that be the case, the history of domestic violence raises questions about how much supervision and control Ms. Ingram can meaningfully exert over Mr. Elliott. It would be understandable if she were reluctant to incite Mr. Elliot’s anger. If she did intervene to prevent a breach, there is a concern that he might react, as in the past, with violence or aggression. I appreciate that a further surety proposed is Ms. Ingram’s brother, Antwan Ferguson. I accept that he is prepared to take his duties seriously. However, for the reasons expressed by Justice King in his review, it is not clear that supervision, particularly by a non-residential surety, will be adequate to address concern on the secondary ground. As someone who will not be residing with Mr. Elliott, Mr. Ferguson’s ability to ensure compliance with the order is further limited.

[15] In short, the shift in sureties does not ameliorate concern on the secondary ground. Mr. Elliott has been involved in various infractions while in custody, which would suggest that he has difficulty complying with rules. The offences before the court are serious, and his record would indicate that he has a history of violent crimes and a history of failing to comply. I am not persuaded that the sureties are able, individually or collectively, to exercise the type of control that would be necessary were Mr. Elliott released. Nor does the electronic monitoring prevent the commission of offences from the confines of the sureties’ home.

IMPACT OF COVID-19 ON THE SECONDARY GROUND

[16] I will now turn to the impact of COVID-19. I ruled in R. v. Hearns, 2020 ONSC 2365, a sentencing decision, that it is appropriate to take judicial notice of the existence of the pandemic and its impact on inmates in custodial institutions. After quoting from a number of other decisions, I stated, at para. 19:

Fortified by these authorities, I take judicial notice of the fact that: we are experiencing a worldwide pandemic; that control of the pandemic requires that individuals practice social distancing; that social distancing is very difficult to maintain in custodial settings; that inmates are consequently at a greater risk of infection; and that the risk of COVID-19 in prison settings translates into an increased risk for the community at large.

[17] I went on in that decision to rule that the effect of the pandemic, while not a “get out of jail free” card, was a factor that could be seen as reducing the quantum of a sentence in an appropriate case.

[18] Various jurists have ruled that the pandemic operates as a material change in circumstances for purposes of the tertiary ground of bail: see R. v. J.S., 2020 ONSC 1710, at para. 18; R. v. Tully, 2020 ONSC 2762, at para. 33; R. v. Ali, 2020 ONSC 2374, at para. 4; R. v. Nelson, 2020 ONSC 1728, at para. 34; R. v. J.R., 2020 ONSC 1938, at para. 44; R. v. Rajan, 2020 ONSC 2118, at paras. 69-70; R. v. Cain, 2020 ONSC 2018, at para. 25; R. v. T.L., 2020 ONSC 1885, at paras. 35-36; R. v. C.J., 2020 ONSC 1933, at para. 8; R. v. M.J.I., 2020 ONSC 2497, at para. 70.

[19] There is also some authority that the pandemic can operate as a material change on the secondary ground, though there is less consensus on this issue. Logically, there will be instances where the pandemic impacts on public safety. For example, it may increase the level of supervision by a surety who is no longer working outside of the home. The social effects of the pandemic – closure of businesses and cancellation of public gatherings – might reduce the opportunities for certain crimes to be committed. Finally, in some cases, the court might be persuaded that the accused is sufficiently fearful of the risk of COVID-19 transmission that he or she will be motivated to comply with court-imposed conditions.

[20] None of those situations apply here. The level of proposed supervision has not changed. Justice King has already found that the crimes alleged against Mr. Elliott can be committed without leaving the home. Mr. Elliott has expressed concern about the risk of COVID-19 transmission in the prison environment. However, given his history of breaching court orders, I require something more than a bald assertion to convince me that Mr. Elliott is freshly motivated to comply with orders of the court.

PASSAGE OF TIME

[21] There is one aspect of COVID-19 that does bear on this case, namely, the passage of time, and anticipated delay of the trial. As a result of the closure of regular court operations, trials set for March, April and May have been adjourned. It is, at present, not clear when those trials will continue, or when new trial proceedings will be scheduled. Protecting the public from the pandemic is obviously a paramount consideration.

[22] The passage of time may, in some instances, constitute a material change in circumstance for purposes of a bail review. This is because proportionality is an overarching consideration that bears on all facets of the bail equation. In R. v. Myers, 2019 SCC 18, the Supreme Court of Canada held that, in assessing ongoing detention, judges must consider whether time spent in custody will approximate or exceed the sentence that would be imposed following a trial. As Wagner J. put it at paras. 51 and 52:

This is ultimately a question of proportionality. In some cases, the passage of time will have no impact on the necessity of continued detention. In other cases, it may be a very strong indicator that the accused should be released, with or without conditions. Reviewing judges must be particularly alert to the possibility that the amount of time spent by an accused in detention has approximated or even exceeded the sentence he or she would realistically serve if convicted: see, e.g., Sawrenko, at para. 43. The assessment must be informed by the need to reduce the risk of induced guilty pleas, which are profoundly detrimental to the integrity of the criminal justice system. As was noted in R. v. White, 2010 ONSC 3164, “public confidence in the administration of justice, and in particular in the judicial interim release regime, would be substantially eroded by pre-trial incarceration of presumptively innocent individuals to the equivalency or beyond the term of what would be a fit sentence if [they were] convicted”: para. 10.

Determining, for the purposes of this analysis, the sentence the accused would potentially receive is not an exact science, nor does it require an exhaustive inquiry. However, the judge’s analysis should account for the circumstances of the case that were known at the time of the hearing and reflect the relevant sentencing principles: St-Cloud, at para. 65.

[23] The passage of time bears most directly on the tertiary ground. However, it can impact on the secondary ground as well. In R. v. Brown, 2020 ONSC 2626, at para. 35, Thomas R.S.J. observed that: “…the weight of authority suggests that COVID-19 must be considered across all the s. 515 grounds as a factor to be considered proportionally in determining release (R. v. T.K., 2020 ONSC 1935, para. 60; R. v. Cain, 2020 ONSC 2018, para. 8; R. v. Fraser, 2020 ONSC 2045, para. 16; R. v. Cahill, 2020 ONSC 2171, para. 27).”

[24] I agree that proportionality is an overarching consideration that can affect any of the grounds articulated in s. 515(10). The bail provisions in the Code do not refer to proportionality. Yet, s. 515, and other sections must be interpreted in light of the constitutional right to reasonable bail, enshrined in s. 11(e) of the Charter. Section 11(e) contains two distinct elements, namely the right to “reasonable bail” terms and the right not to be denied bail without “just cause”: see R. v. Pearson, [1992] 3 S.C.R. 665. In Myers, Wagner J. affirmed in para. 25 that s. 11(e): “operates as a key organizing principle of Part XVI of the Criminal Code.” This is consistent with the general recognition that statutes are to be interpreted in a manner consistent with Charter values.

[25] As it relates to the secondary ground, the risk of disproportionate detention may, in some cases, outweigh the risk of future misconduct. This point was made in Myers, albeit somewhat cryptically, at para. 53:

For example, let us consider a scenario in which an individual is detained on the basis of s. 515(10)(c), and at the time of the first detention order his trial is only two months away. If the trial date is then rescheduled for a date two years later and remains many months away at the time of s. 525 hearing, the continued detention of the accused may no longer be proportionate, or necessary, for the purposes of this third ground: see also R. v. Whyte, 2014 ONCA 268, 119 O.R. (3d) 305, at paras. 39-43; Piazza, at paras. 71-81. In an appropriate case, it may also be possible for the judge to conclude that a hypothetical risk in relation to the primary or secondary ground is simply outweighed by the certain cost of the accused person’s loss of liberty or of a loss of public confidence in the administration of justice. [emphasis added]

[26] The court referred above to a “hypothetical risk” in relation to the primary or secondary ground. The secondary ground only warrants detention when there is a “substantial likelihood” that “the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice”. If something is substantially likely, it is arguably more than hypothetical. On the other hand, the risks addressed by the primary and secondary ground are hypothetical in the sense that they are predictive rather than descriptive. The risk of misconduct may or may not be realized.

[27] By way of contrast, there is nothing hypothetical about detention. If someone is in custody, the impact on their liberty is very real and can be tangibly measured against the sentence that would likely attach to the charges. Detention orders are not made in the abstract. They are linked to a material event: the trial. If an accused person pleads guilty in exchange for a sentence of time served, he or she is obviously released from custody. What of a case where the accused has pleaded not guilty, but has already served the equivalent of a post-trial sentence? That factor weighs in favour of release pending the trial. An accused person should not have to plead guilty to receive the benefit of time already served. To hold otherwise is to risk coercing false guilty pleas from those who are factually innocent. Himel J. made this point in R. v. Ahmad, 2017 ONSC 3364, at para. 24:

Christopher Sherrin, in his article “R. v. Whyte: Protecting the Innocent (and the Guilty),” 10 C.R. (7th) 102, argues that the Whyte decision “offers the strongest jurisprudential support yet for the proposition that an accused person should not be required to serve more time in custody pending trial than s/he would have to serve as a sentence for the offences charged:” at p. 1. In his article, he states that “[p]roper punishment is defined, in law, by the sentence that the offender deserves on conviction. Forcing an offender to spend additional time in custody forces him or her to suffer more than proper punishment:” at p. 1 [emphasis in original]. Further, he states that “detaining accused persons for longer than would be appropriate on conviction operates as huge incentive for false guilty pleas:” at p. 1; see also Christopher Sherrin, “Excessive Pre-Trial Incarceration” (2012) 75 Sask. L. R. 55. He also points out that the court in Whyte considered the sentence not based on a conviction after trial but on a guilty plea, which “typically represents the shortest available sentence and therefore the sentence that is of most interest to [an] innocent accused contemplating a false plea:” at p. 2.

[28] In Myers, the court was concerned with bail review under s. 525 of the Criminal Code, but I do not see proportionality analysis as being restricted to s. 525 reviews. It must logically apply to all bail determinations. In R. v. Whyte, 2014 ONCA 268, the Court of Appeal considered this issue in the context of a s. 680 review of a detention order made on a s. 469 offence, at paras 41-43:

The applicant was arrested on November 10, 2011 and has been held in custody since that date. Crown counsel agreed at the review hearing that if the applicant were to plead guilty now, she would most likely be released on the basis of time served because the appropriate sentence is three years. I note that if she were released after pleading guilty, she would not be under any supervision.

The result is that – counting pre-trial custody on a 1 to 1 ratio – the applicant will have served the sentence she is likely to receive by November 2014, long before she will go to trial. If a 1.5 to 1 ratio (which Crown Counsel conceded was appropriate) were applied to the applicant’s pre-trial custody, she will have served a sentence at the upper limit of the sentencing range well before her trial commences in May 2015. Furthermore, as a result of her co-accused’s imminent application for severance of his murder charges, it is not clear that her trial will commence even then.

Application to this case

[29] In this case, Mr. Elliott has served a considerable amount of time in custody. He has been incarcerated since February 2016. Assigning credit on a 1.5 to 1 basis, he has served the equivalent of slightly more than a 6-year sentence. The Crown says that, if Mr. Elliott is convicted of the offences before the court, the Crown will seek a sentence in the range of 10 to 12 years. It is not for me to decide, in concrete terms, what Mr. Elliott’s sentence should be. I am concerned, however, with the duration of his detention, while presumed innocent, in a remand facility. I am also concerned about the prospect of further delay.

[30] Toward the end of the bail hearing, I asked the trial coordinator to join us to advise of when the remaining weeks of trial could be scheduled. Through consultation with trial coordination, and counsel, Mr. Elliot’s trial has now been scheduled to continue in August, September and November. Given the prospect of completing the evidence in the fall of 2020, the risk disproportionate detention does not, at this time, outweigh the substantial risks presented on the secondary ground. Were the trial dates still uncertain, or scheduled further into the future, I might have reached a different conclusion on the balancing equation. For now, the scheduling of early dates allows for protection of the public while avoiding the prospect of gratuitous detention of the accused.

[31] Therefore, I dismiss the application for review of the detention order, but direct that the trial continue on the August, September and November dates identified by the trial coordinator and agreed to by counsel. Should there be further or unanticipated delay, Mr. Elliot may with to revisit his application for release.

“Electronically Signed and Released by Pomerance J.” Renee M. Pomerance Justice

Released: May 12, 2020 Corrected Released: May 13, 2020

CORRECTED DECISION

Correction and addition to paragraphs [10] and [14].

Paragraph 10 previously read:

[10] Mr. Elliott proposes three sureties on this review: his aunt, Heather Elliott, her husband Mr. Radney, and Mr. Elliott’s partner, Cierra Ingram. Ms. Elliott and Mr. Radney are proposed as residential sureties, whereas Ms. Ingram is proposed as a supervising surety.

Paragraph 10 now reads:

Paragraph 14 previously read:

Paragraph 14 now reads:

R. v. Elliott, 2020 ONSC 2976

Case Summary