COURT OF QUEEN'S BENCH OF MANITOBA

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1 On review from a decision of Provincial Court Judge, July 24, 2018 Date: Docket: CR (Thompson Centre) Indexed as: R. v. Kelly-White Cited as: 2019 MBQB 22 COURT OF QUEEN'S BENCH OF MANITOBA B E T W E E N: ) Appearances: HER MAJESTY THE QUEEN, ) ) respondent, ) Erin Magas, ) for the respondent ) -and- ) ) SHAYNA JAYLEE KELLY-WHITE, ) Rohit Gupta, ) for the (accused) applicant ) (accused) applicant. ) ) ) JUDGMENT DELIVERED: ) February 4, 2019 HARRIS, J. Introduction [1] This is an application pursuant to s. 520 of the Criminal Code, R.S.C., 1985, c. C-46 (the Code ) by Shayna Jaylee Kelly-White ( Ms. Kelly-White ) for review of an order of a Provincial Court judge dated July 24, 2018 granting Ms. Kelly-White judicial

2 - 2 - interim release on her own recognizance of $1,000, cash bail of $500, and a condition that she reside at either 471 William Avenue or at the Behavioural Health Foundation (the BHF ), both in Winnipeg. The grounds for the review are based upon a material change in circumstances and that the learned Provincial Court judge erred in law in failing to consider the appropriate legal principles for judicial interim release and in setting cash bail in an amount that she knew Ms. Kelly-White was unable to pay. [2] It should be noted that while this case deals with matters within the jurisdiction of the provincial Crown as well as the federal Crown, no one appeared for the provincial Crown, although properly served. My understanding is that the provincial Crown was content to rely upon the representations of the federal Crown. Background [3] Ms. Kelly-White is a 25-year-old Indigenous female from Whitefish Bay First Nation in northwestern Ontario. She has a criminal record dating back to 2010 that shows the following convictions: three convictions for theft under $5,000 (Kenora Youth Court in 2010, Kenora in 2012, and Winnipeg in 2018); one conviction for assault (Kenora Youth Court in 2010); two convictions for failing to appear in court (Kenora in 2012 and Winnipeg in 2017); and one conviction for failing to comply with a probation order (Winnipeg in 2016); and one conviction for failing to comply with a recognizance (Beausejour, Manitoba in 2018).

3 - 3 - [4] At the time of her arrest, Ms. Kelly-White had two warrants outstanding in Ontario and Alberta, one of which was for failing to appear in court. As well, there was a warrant issued for her arrest in Manitoba for breach of probation relating to her failure to report to her probation officer. [5] On May 7, 2018, an officer with the Royal Canadian Mounted Police ( RCMP ) in Norway House had occasion to conduct a traffic stop with respect to a truck being operated by one Caressa Ettawacappo. Ms. Kelly-White was one of the passengers in the truck. Upon conducting identification checks, the officer learned that Ms. Kelly-White was wanted on warrants issued in Winnipeg, Kenora, and Edmonton, whereupon Ms. Kelly-White was arrested. During a pat-down search for officer safety, a bag containing 40 rocks of crack cocaine was found on Ms. Kelly-White s person. Some other drug paraphernalia was found in Ms. Kelly-White s purse and elsewhere in the truck. Both Ms. Kelly-White and Ms. Ettawacappo were then arrested for possession of cocaine for the purpose of trafficking. [6] Ms. Kelly-White was charged with four offences, one of possession of crack cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the CDSA ), and three charges under the Code one count of obstructing a peace officer in execution of his duties pursuant to s. 129(a), and two counts of failing to comply with a probation order pursuant to ss (1) of the Code.

4 - 4 - [7] On June 15, 2018, Ms. Kelly-White appeared in Provincial Court in Thompson to make an application for judicial interim release. The Crown consented to her release on her own recognizance of $1,000 together with cash bail of $500. Conditions of her release required her to reside at 471 William Avenue, in Winnipeg, not move without the consent of the Crown or permission from the court, and to abide by a curfew of 10:00 p.m. to 6:00 a.m. Other standard conditions which are not relevant to these reasons or the bail review were also attached to Ms. Kelly-White s release. [8] In her affidavit affirmed December 24, 2018 (the Kelly-White affidavit ) in support of this application, Ms. Kelly-White deposes that prior to the bail hearing on June 15, 2018, the Crown sent an to duty counsel advising that the Crown would consent to her release if she was able to post $500 cash bail. Ms. Kelly-White says that she was optimistic that her sister would be able to come up with the money and thought that the money could be brought to court on June 15, Unfortunately, she was unable to raise that money. [9] Subsequent to the June 15, 2018 bail hearing, Ms. Kelly-White was accepted into the BHF addictions residential treatment program in Winnipeg. Mr. Gupta, her counsel, proposed to Crown counsel that Ms. Kelly-White s participation in the BHF program could be an alternate means to address Crown concerns related to the primary ground, but the Crown remained insistent that Ms. Kelly-White would still have to come up with $500 cash bail. [10] Mr. Gupta then obtained the consent of the Crown to have a contested bail hearing pursuant to s. 523(2) of the Code in Provincial Court in Thompson on July 17, 2018 to

5 - 5 - enable him to present the alternate bail plan to the court. According to the Kelly-White affidavit, the Provincial Court judge did not want to re-hear the matter, as Ms. Kelly-White had already been ordered released pursuant to the bail order of June 15, [11] The matter was adjourned to July 24, 2018, at which time the judge, who had refused to hear the application on July 17, 2018, agreed to hear the contested bail application. The learned Provincial Court judge was informed that Ms. Kelly-White was on social assistance and had been unable since the order of June 15, 2018, to come up with the required cash bail. Despite this knowledge, the learned Provincial Court judge required that Ms. Kelly-White post $500 cash bail in order to be released. [12] At the hearing of this application on December 27, 2018, I found that the learned Provincial Court judge erred in law in setting cash bail as she did, vacated her order and ordered that Ms. Kelly-White be released to a representative of the Elizabeth Fry Society or the BHF (whichever institution was able to offer her a bed first) on her own recognizance in the amount of $1,000. [13] At the outset of the hearing, Mr. Gupta asked me to provide guidance with respect to the principles that should guide a judge when considering when it is appropriate to order cash bail, and if so, the factors to be considered in determining the amount. [14] The issues raised in this matter engage considerations regarding s. 11(e) of the Canadian Charter of Rights and Freedoms, Part I, Constitution Act, 1982 (the Charter ) as discussed in R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509.

6 - 6 - The July 24, 2018 Bail Hearing [15] Both the federal Crown and the provincial Crown were in attendance on July 24 and focused their concerns about release based on the primary ground and insisted on $500 cash bail as being required to ensure her attendance. [16] Mr. Gupta recognized those valid concerns but he told the court that the $500 was well beyond Ms. Kelly-White s means and was effectively a denial of bail. As an alternative to cash bail, Mr. Gupta advised the court that Ms. Kelly-White had been accepted into the BHF. He informed the court that the BHF acts much like a surety in that its staff monitors very directly the activities of the residents and will inform the authorities immediately should a resident breach his or her bail conditions. [17] Crown counsel objected to this alternative and stated the issue is that Behavioural Health Foundation isn t a locked facility. As soon as she gets granted bail, she can walk out. True, a warrant may issue for her, but they can t keep her there (Transcript of Proceedings, July 24, 2018, page 5, lines 16 to 19). How cash bail could possibly provide greater assurance of her attendance in court that the plan proposed by Ms. Kelly-White was not explained. [18] In his submission to the court, Mr. Gupta expressed his incredulity on this point as follows: In terms of the plan right now, I just -- it baffles me that my learned friend would be -- consent to the release of a cash basis, it s the notion that if you can deposit cash, you should be able to be free, whereas BHF has, it s essentially a surety, it s someone monitoring whether or not you re going to be breaching your conditions. You re confined to, like, an, an organization, in an institution essentially trying to better yourself, and if Ms. Kelly-White were to leave the jurisdiction, leave the BHF facility, like, breach is instant, right.

7 - 7 - So if the argument now that s put before the Court now is that she s going to abscond the jurisdiction, she we have no clue where she s going to be, and that the only way that we know that she s not going to be absconding is the $500 amount, I, I just, I see no merits to claim. If she was going to abscond, she would abscond for $500 to get out of jail and just go to a different jurisdiction. (Transcript of Proceedings, July 24, 2018, page 14, lines 23 to 32, page 15, lines 6 to 12) [19] The learned Provincial Court judge said that her concern was whether Ms. Kelly-White was going to show up in court if she was released. The judge accepted the Crown s position about the effectiveness of BHF as a bail monitor and dismissed defence counsel s concerns about Ms. Kelly-White s ability to raise $500 cash and stated: So my concern is on the, on the primary ground. So without any sort of cash or surety -- and I m not, I m not asking for a whole, you know, whack of money. There needs to be some assurance that if she s released, she comes back and deals with these charges, because she s pending on other charges from other jurisdictions, and she hasn t gone back to try to deal with those charges, so I agree with the Crown. Like, she could leave [BHF] and then, she like, they re not going to, you know, hold her down until the police get her. She could be long gone by the time the police are notified that she s left. So, yeah, they have an -- they ll say, yeah, she s not here anymore, but, I mean, she could be long gone by the time the police get there, and, I mean, they re not going to run there right away, I mean, they re pretty busy. (Transcript of Proceedings, July 24, 2018, page 22, lines 9 to 16, lines 20 to 28) [20] Later, the learned judge stated: Okay. All right. So, I mean, I, I don t think it was unreasonable, Mr. Gupta, to impose -- and, I mean, it s not even a whole -- it s not a big amount of cash. I mean we re not talking about thousands of dollars, we re talking about $500 cash. So, I, I don t-- and I m not one to, you know -- I know, I understand there s issues with poverty and all of that other sort of stuff. But I think that the main thing here is making sure she comes to court, I mean, that s, that s going, to deal with those charges, right, one way or another. (Transcript of Proceedings, July 24, 2018, page 24, lines 33 to 34, page 25, lines 1 to 8)

8 - 8 - [21] Finally, the following exchange occurred between the learned judge and Mr. Gupta: The Court: Or cash, yeah. I mean, and right now there was Crown consent with cash, right, and you re saying she can t meet the cash. But, I mean, I -- Mr. Gupta: Yeah The Court: I can t say well, you, you can t meet it, therefore, I shouldn t impose it. I need to be satisfied that if I granted her bail there s going to be some sort of conditions that are going to encourage her to come to court to deal with her charges. So that s where I m at. So, as I said, that, that s the concern. (Transcript of Proceedings, July 24, 2018, page 25, lines 15 to 24) (underlining is mine) [22] There was then a discussion that a bail order could provide for either $500 cash or a surety in the same amount. In the end, the judge ordered cash bail in the amount of $500 and imposed conditions on Ms. Kelly-White s release, which included that she was required to reside at 471 William Avenue, in Winnipeg, and not to move without permission of the court or consent of the Crown except when she was participating in programs at the BHF. The Law [23] In R. v. Antic, the Supreme Court of Canada articulated the principles and guidelines which must be adhered to in determining an application for bail. The aspects of those principles which are most relevant to this case are as follows: (h) It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court to justify their release. A recognizance is functionally equivalent to cash bail and has the same

9 - 9 - coercive effect. Thus, under s. 515(2)(d) or s. 515(2)(e), cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable. (i) When such exceptional circumstances exist and cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order, which means that the amount should not be beyond the readily available means of the accused and his or her sureties. As a corollary to this, the justice or judge is under a positive obligation, when setting the amount, to inquire into the ability of the accused to pay. The amount of cash bail must be no higher than necessary to satisfy the concern that would otherwise warrant detention and proportionate to the means of the accused and the circumstances of the case. (underlining is mine) [24] These principles find their roots in s. 11(e) of the Charter, the right not to be denied reasonable bail without just cause, which protects accused persons from conditions and forms of release that are unreasonable. The Supreme Court noted in Antic that the possibility of requiring a cash deposit is limited to the two most onerous forms of release: s. 515(2)(d) and (e) (para. 30). The corollary is that it should not be imposed except in exceptional circumstances and where those circumstances exist, it must be proportionate to the means of the accused. [25] Wagner J. (as he then was) in Antic made the following comments about the cash rungs of the bail ladder as set out in ss. 515(2) and (3) of the Code: 48 Parliament included cash in the most onerous rungs of the ladder for added flexibility, not because cash is more effective than other release conditions in ensuring compliance with bail terms. A recognizance creates the same financial incentive for the accused to comply with the terms of release as does a cash deposit. One does not mitigate the flight or safety risk posed by an accused person more effectively than the other: Anoussis, at para. 22. The central purpose of the Bail Reform Act was to avoid the harsh effects on accused persons of requiring cash deposits where other avenues of release are available. As the authors of the Ouimet Report recognized, cash bail provides added flexibility by offering an alternative form of release where a meaningful recognizance cannot be given and a surety cannot be obtained: pp

10 Therefore, where a monetary condition of release is necessary and a satisfactory personal recognizance or recognizance with sureties can be obtained, a justice or a judge cannot impose cash bail. A pledge and a deposit perform the same function: the accused or the surety may lose his or her money if the accused person breaches the terms of [page532] bail. Release with a pledge of money thus has the same coercive power as release with a cash deposit. (underlining is mine) [26] Based on Antic, in my respectful opinion, the learned Provincial Court judge erred in two respects. First, she erred in requiring both a personal recognizance and cash bail. As noted above, where a personal recognizance is ordered, a justice or a judge cannot impose cash bail. Moreover, there were no concerns expressed to engage s. 515(2)(e) of the Code. [27] Second, even if she was entitled to impose cash bail, the learned judge not only failed to inquire into the resources of Ms. Kelly-White to meet that cash bail but also dismissed her counsel s concerns about the onerous effect of the cash bail on her. She had an obligation not to impose an amount that she knew Ms. Kelly-White could not raise. As noted by Wagner J. in Antic, the right to reasonable bail relates to the terms of the bail including: 41 the quantum of any monetary component and other restrictions that are imposed on the accused for the release period: Hall, at para. 16. The right not to be denied reasonable bail without just cause protects accused persons from conditions and forms of release that are unreasonable. [28] Setting bail at $500 in the circumstances was a denial of reasonable bail. [29] At the end of the day, I find that the comments of Justice Wagner in Antic are apropos of Ms. Kelly-White s circumstances: 59 As this case illustrates, requiring cash as a condition of release has the potential to result in increased incarceration of accused persons. Cash bail does

11 not give impecunious persons greater access to bail. Rather, requiring a cash deposit will often prevent an accused person from being released, as it did for many months in Mr. Antic's case. Professor Friedland observed in his study that a majority of accused persons who were required to deposit security as a condition of release were unable to raise the necessary funds: Detention before Trial, at pp. 130 and 176. An accused person's release should not be contingent on his or her ability "to marshall funds or property in advance": ibid., at p [30] Having found that the learned Provincial Court judge erred in law in setting bail as she did, I do not have to consider whether there was a material change in circumstances, as requested in the notice of application. HARRIS J.