



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 appellants 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 appellants 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] 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 counsels 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 appellants 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 appellants 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 appellants
    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 appellants 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 judges 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 Crowns 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 appellants 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 appellants 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), 199 C.C.C. (3d) 490
    (Ont. C.A.).

[25]

However,
    the trial judges 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.


