R. v. McIvor, 2020 BCPC 94 (CanLII)
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2020 BCPC 94 |
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Date: |
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File No: |
25969-2-C |
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Registry: |
Vancouver |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
(Criminal Division)
REGINA
v.
ELVIS ERIN MCIVOR
RULING ON BAIL REVIEW APPLICATION
PENDING SENTENCING
OF THE
HONOURABLE JUDGE W. LEE
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J. Madden by phone |
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Counsel for the Defendant: |
C. Corriveau by phone |
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Vancouver, B.C. by video and phone |
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Date of Hearing: |
May 5, 2020 |
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Date of Judgment: |
May 7, 2020 |
INTRODUCTION
[1] Mr. McIvor has applied pursuant to s. 532(2)(a) of the Criminal Code to vacate a detention order made September 6, 2019, by Judicial Justice Rodgers.
[2] Mr. McIvor is currently awaiting sentencing. On January 20, 2020, I convicted Mr. McIvor of the aggravated assault of Jonathan Norman Erickson, contrary to s. 268 of the Criminal Code and the assault of Mr. Erickson using a weapon, contrary to s. 267(2) of the Criminal Code.
BACKGROUND
[3] The assault occurred on February 8, 2018. Mr. McIvor was arrested and then released on an undertaking dated February 9, 2018.
[4] Since then, the Court has issued five bench warrants for Mr. McIvor’s arrest due to his failure to attend court. The first four bench warrants were issued on the following dates:
• May 7, 2018
• March 4, 2019 (a scheduled trial date)
• June 3, 2019
• August 7, 2019
[5] On August 8, 2019, Judge Rideout released Mr. McIvor on a recognizance of $1,500.00 without deposit or surety.
[6] On September 3, 2019, Mr. McIvor again failed to attend court and the fifth bench warrant was issued.
[7] Mr. McIvor was arrested soon afterwards and on September 6, 2019, he appeared before Judicial Justice Rodgers.
[8] Judicial Justice Rodgers detained Mr. McIvor on the primary ground, that being to ensure Mr. McIvor’s continued attendance at court. I have had the benefit of listening to the digital audio recording of this appearance.
[9] On December 23 and 24, 2019, the trial proceeded before me. I gave my decision on January 20, 2020, convicting Mr. McIvor. I then ordered a pre-sentence report along with a full Gladue report. Sentencing was adjourned to March 20, 2020.
[10] On March 11, 2020, the World Health Organization classified COVID-19 as a pandemic.
[11] On March 17, 2020, Mr. McIvor appeared before me to waive the request for the Gladue report, which had yet to be completed.
[12] The pre-sentence report was completed March 18, 2020.
[13] On the scheduled sentencing date of March 20, 2020, counsel for Mr. McIvor advised me that a complete Gladue report was necessary after having reviewed the pre-sentence report. The sentencing was adjourned to May 1, 2020, for a fix date, and a further date for sentencing has yet to be scheduled.
[14] Mr. McIvor now applies pursuant to s. 523(2)(a) of the Criminal Code to vacate Judicial Justice Rodger’s detention order.
THE SECTION 523(2)(a) APPLICATION
[15] Section 523(2)(a) of the Criminal Code states:
Order vacating previous order for release or detention
(2) Despite subsections (1) to (1.2),
(a) the court, judge or justice before which or whom an accused is being tried, at any time,
may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused and make any other order provided for in this Part for the detention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted.
[16] The decision R. v. Frederickson, 2018 BCPC 263 summarized the principles concerning an application under s. 523(2)(a). The Court stated at paragraph 48:
[48] In summary, I find the following principles arise from the authorities concerning the appropriate process for determining an application to the trial judge under s. 523(2)(a) to vacate a previous order of detention:
1. A s. 523(2)(a) application is in the nature of a review and is not a hearing de novo.
2. The trial judge’s role is not to substitute his or her own view for that of the judge or justice who detained the accused, rather, the focus is on whether there has been a material change in circumstances since the detention order was made.
3. The onus is on the accused to show there has been a material change of circumstances such that his or her continued detention is no longer justified.
4. The material change of circumstances can relate to:
a) delay of the trial;
b) the apparent strength of the Crown’s case; or
c) where the accused was detained on the primary, secondary or tertiary grounds, material changes to any circumstances underlying the judge or justice’s reasons for detaining the accused, such that detention on those grounds is no longer warranted.
5. While the trial judge should be mindful of trial delay in considering the application, delay alone is not determinative of release. Delay is relevant to the issue of whether or not the passage of time has changed the circumstances relied on by the detaining judge or justice which were the material basis of his or her decision to detain the accused.
6. When assessing the strength of the Crown’s case, the trial judge in a s. 523(2)(a) application is not providing a mid-trial opinion as to whether or not the Crown will ultimately succeed in establishing the accused’s guilt beyond a reasonable doubt. Rather, the trial judge is engaging in a comparative analysis, considering whether the Crown’s case is now materially weaker than when first considered by the detaining judge or justice. If so, the trial judge should consider whether there is still a “reasonable prospect of conviction”, which is a standard less than a balance of probabilities.
7. Even if there has been a material change in circumstances, the trial judge must consider whether further detention of the accused in custody is justified having regard to the criteria under s. 515(10).
THE POSITION OF MR. McIVOR
[17] Counsel for Mr. McIvor argues that there has been a change of circumstances since the detention order was made.
[18] First, Mr. McIvor argues that his detention was to ensure that he attended the trial. As Mr. McIvor has now been convicted, those concerns no longer exist and the focus turns to ensuring that Mr. McIvor attends for sentencing.
[19] Second, counsel for Mr. McIvor advises that it will still be some weeks before the Gladue report will be available. The Legal Services Society only approved the funding of the report last week. The report writer has been contacted but no time line for the completion of the report was available.
[20] Third, COVID-19 has resulted in a lockdown at North Fraser Pre-Trial Centre, as stated in a document titled Corrections Bulletin dated April 19, 2020, from Stephanie McPherson. The Bulletin refers to a staff member at North Fraser Pre-Trial who tested positive for COVID-19, resulting in a lockdown of approximately 100 inmates.
[21] I note that it has been over 14 days since this Bulletin was issued and I have not been advised of any further COVID-19 cases at North Fraser Pre-Trial.
[22] At this time, Mr. McIvor has been in custody for approximately 243 days calculated to May 5, 2020. If credit is given at time and a half, this is equivalent to approximately 365 days or one year. Counsel for Mr. McIvor suggested that the level of credit given by the court may be further enhanced due to pre-trial detention in a facility where there has been an incident of COVID-19. When combined with the Gladue factors, Mr. McIvor suggests that he is at risk of being detained longer than the appropriate sentence.
[23] Mr. McIvor suggests that he can be released on house arrest with a requirement that he phone the bail supervisor each day. At this time though, Mr. McIvor has no home and so he would be residing with a friend. Mr. McIvor did not know the address where the friend resides.
THE POSITION OF THE CROWN
[24] The Crown referred to R. v. Frederickson at paragraph 48 in saying that this application is in the nature of a review and is not a new hearing.
[25] The Crown argues that the primary ground concerns still remain and are in fact stronger because Mr. McIvor is now facing sentencing and further committal time.
[26] Mr. McIvor also no longer benefits from the presumption of innocence after his conviction.
[27] The Crown submits that the delay in sentencing is due to Mr. McIvor’s request for a Gladue report and is not attributable to the Crown or to institutional delay.
[28] I was referred to the decision R. v. Slizak, 2017 BCCA 279 at paragraph 9 which in turn discussed another BC Court of Appeal decision called R. v. Nguyen, 2016 BCCA 408. This case described a range of sentences for aggravated assault of between 16 months and six years. The position of the Crown is that the appropriate sentence is two years and so there is little likelihood that Mr. McIvor will be detained for longer than his eventual sentence.
[29] In reply, counsel for Mr. McIvor referred me to the decision R. v. Kydd, 2013 BCSC 2506, where Mr. Kydd was convicted of aggravated assault and sentenced to a 90-day intermittent sentence. Counsel submits that this case demonstrates that the low end of the range of sentences for aggravated assault is as little as 90 days.
[30] I note that in R. v. Kydd, the Court stated at paragraph 17 that this was essentially a bar fight and described the offence as being at the lower end of the spectrum of conduct characterized as aggravated assault. The Court said that no weapon was involved, unlike the facts before me.
[31] The Crown also cited a number of cases for the proposition that absent evidence that Mr. McIvor has an increased health risk due to COVID-19, the virus is not a basis to release him from custody: see R. v. Berlinguette, 2020 BCSC 477 at para.37; R. v. Leppington, 2020 BCSC 546 at para. 32; and R. v. Yaman, 2020 BCPC 56 at para. 20.
[32] Lastly, the Crown referred me to the decision R. v. GTB, 2020 ABQB 228, where the Court stated at paragraph 57:
The possibility of a health risk to an accused through continuing detention in a correctional facility is not a relevant consideration under s 515(10)(a) of the Criminal Code. The health risk does not address an accused’s propensity to attend court in the future.
[33] This Court did consider COVID-19 when discussing the primary ground in the decision R. v. Cota Garcia, 2020 BCPC 64. In this case, the concern of the Court was whether the four accused would flee the jurisdiction of the Court. The defence proposed a release plan that included house arrest. His Honour Judge Jetté stated at paragraph 55:
The core elements of the release plan clearly contemplate the primary ground concern that the accused might attempt to flee the jurisdiction, in particular the offer of cash deposits, and the suggestion that the accused be subject to house arrest with limited exceptions. But for the COVID-19 pandemic, I expect the plan would have also included a requirement that the house arrest term be electronically monitored, which is a term I would have given careful consideration had EMP been available. But for the absence of that term, I find that the release plan is well aimed at managing the relevant bail risks in this case.
[34] The Court went on to say:
[56] The remaining question is whether the plan manages the primary ground risks to the point that the four accused can be released into the community. As noted near the outset of these reasons, the accused must show cause why their detention is not justified on the primary ground.
[57] There are three key factors which drive my decision on this ground.
[58] The first factor is a repeat of my earlier comments regarding the weakness of the evidence relevant to the importing count, and triable issues which are apparent with respect to the PPT.
[59] The second is the release plan itself. With the addition of a number of conditions which I will refer to in a moment, I am satisfied that even without electronic monitoring, the combination of cash deposits and restrictive bail conditions will reduce to a manageable level the risk that these accused might flee the jurisdiction.
[60] The third relates to the impacts brought about by the COVID-19 pandemic, which I find have application to all three grounds for detention in s. 515 of the Code.
[61] Despite recent reports from BC Corrections that, to date, the crisis is being successfully handled inside our detention facilities, it appears to me inevitable that these places cannot remain as infection free zones while the virus continues its relentless march into every corner of the planet. The conditions which are inherent to a custodial setting suggest that, most unfortunately, the battle will be lost here as well, with predictable consequences for inmates, staff, and the community at large. As an aside, and not to suggest that I have a special ability to see in into the future, about half an hour after writing this part of my judgment the Chief Medical Officer for BC announced at her daily briefing that an inmate at the Okanagan Correctional Centre has tested positive for COVID-19. I think that almost anyone who is paying attention to what has been going on all around us would have come to the same conclusion that I did.
[62] COVID-19 has also caused a significant disruption to the operations of this court. All non-custodial trials have been adjourned to fix dates in June. Most in-custody trials have now also been adjourned and will not be set down again until months into the future. The stacking of all of these cases will inevitably push newer matters like this one, which sits at the back of the que, much further down the line.
[63] Having considered the whole of the circumstances, and with particular emphasis on the factors just outlined, I have come to the conclusion that the accused have met their burden of showing cause why their detention is not required on the primary ground.
[35] I am also aware of the decision R. v. T.K., 2020 ONSC 1935 where the Court noted at paragraph 45 that existing travel restrictions due to COVID-19 and the applicant’s current resources made flight from prosecution unlikely.
ANALYSIS
[36] The threshold question is whether there is a material change of circumstances since the detention order was made on September 6, 2019. More specifically, has there been a material change to any of the circumstances underlying Judicial Justice Rodger’s decision to detain Mr. McIvor on the primary ground.
[37] Mr. McIvor’s first argument is that he has been convicted and so compelling his attendance for the trial is no longer necessary. However, his attendance still remains necessary for sentencing. Given his past history of five bench warrants and the uncertainty of where he would live if released, I am not satisfied that the conviction represents a material change of circumstances.
[38] The second argument is that sentencing has been delayed due to the request for the Gladue report. This request was initially made by Mr. McIvor, withdrawn and then reinstated on the day that sentencing was scheduled. This is a delay that was not caused by the Crown or the Court.
[39] Mr. McIvor argues that if he continues to be detained, there is a possibility he will have spent more time in custody than required by the sentence. However, this is speculation based on what might be found in a Gladue report and whether Mr. McIvor is entitled to enhanced credit for his pre-sentence time in custody. I am not satisfied that the delay in sentencing constitutes a material change in circumstances.
[40] The third argument is the onset of the COVID-19 virus and the fact it has infected a person at North Fraser Pre-Trial Centre, causing a lockdown of many of the inmates. Keeping in mind that the burden of proof under s. 532(2)(a) lies with Mr. McIvor, I have no information whether Mr. McIvor was one of the inmates who was subject to the lockdown. There is also no medical information to show that Mr. McIvor was subject to increased risk if he were exposed to COVID-19.
[41] Given that only one person, a staff member, tested positive for COVID-19 at North Fraser Pre-Trial, which was over two weeks ago, I am not satisfied that there is any ongoing increased risk of COVID-19 at the detention centre, which was a concern raised in the R. v. Cota Garcia decision. I am prepared to accept though that in a closed facility holding hundreds of persons, the ability to be socially distant is likely minimal.
[42] I am aware that there are court decisions finding COVID-19 to be a material change of circumstances, but those decisions relate to the secondary and tertiary grounds: see for instance R. v. Cain, 2020 ONSC 2018 and R. v. Rajan, 2020 ONSC 2118 at para. 66.
[43] On the facts of this case though, I conclude that Mr. McIvor has not shown a material change of circumstances that would entitle me to review the detention order of Judicial Justice Rodgers, which was based on ensuring Mr. McIvor’s attendance at court. I come to this conclusion after considering the factors referred to me both separately and in combination.
[44] If I am wrong in my assessment, Mr. McIvor’s proposal for house arrest and a requirement for daily contact with the bail supervisor is still not sufficient to deal with primary ground concerns. The history of five previous bench warrants raises serious concerns about whether Mr. McIvor will attend court for sentencing. His proposed release plan does nothing to reduce those concerns. Mr. McIvor did explain that the death of his father was the cause of one failure to attend court, which was information given to Judicial Justice Rodgers. The only explanation for the other four failures was that Mr. McIvor had an injury that affected his short-term memory, a factor also known to Judicial Justice Rodgers.
[45] Based on the reasons that I have set out, the application is denied. Mr. McIvor will remain in custody until this proceeding is completed and any sentence is served.
_____________________________
The Honourable Judge W. Lee
Provincial Court of British Columbia