



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sangster, 2020 ONCA 332

DATE: 20200528

DOCKET: M51545 (C65913)

Jamal
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

Alexander
    Sangster

Applicant

Erin Dann, for the applicant

Gerald Brienza, for the respondent

Heard: May 20, 2020 by Videoconference

REASONS
    FOR DECISION

A.

Overview

[1]

The applicant, Alexander Sangster, applies for
    bail pending his conviction and sentence appeal. Following a trial by judge
    alone, he was convicted on March 27, 2018 of aggravated assault, assault
    causing bodily harm, pointing a firearm, careless use of a firearm, and
    possession of a loaded prohibited firearm. He also pleaded guilty to failing to
    comply with his recognizance by writing a letter to his girlfriend to inquire
    about the welfare of her and their child, while prohibited from doing so. He was
    sentenced on April 25, 2018 to seven years and seven months, less 497 days of pre-trial
    custody credit, leaving six years and 81 days to serve. He has not previously
    applied for bail.

[2]

The Crown opposes the application, contending
    that the applicant has failed to establish that his detention is not necessary
    in the public interest under s. 679(3)(c) of the
Criminal Code
, R.S.C.
    1985, c. C-46.

[3]

For the reasons that follow, I grant the
    application.

B.

Background

[4]

The convictions under appeal arose from events
    on the evening of May 29, 2017 at the apartment of Ms. Sasha Strickland and Mr.
    Ryan Davey in Huntsville, where the applicant lived with his girlfriend, Ms. Samantha
Lambertsen-Downing
. The evening was fueled with drugs
    and alcohol. Several altercations ensued.

[5]

The applicant was convicted of assaulting Ms.
    Lambertsen-Downing and causing her bodily harm; aggravated assault by stabbing
    his friend and neighbour, Mr. Courtney Carpenter, when Mr. Carpenter tried to
    protect his wife, whom the applicant attacked when she intervened to protect Ms.
    Lambertsen-Downing; and possessing a loaded prohibited sawed-off shotgun and
    pointing it at Mr. Davey when he asked the applicant to stop attacking Ms.
    Lambertsen-Downing.

[6]

The applicant was arrested the next morning. Two
    representatives of the Childrens Aid Society (CAS) had come to the apartment
    because they had concerns about Ms. Strickland, who had a young daughter in the
    care of the CAS. A police officer was at the building because Mr. Carpenters
    sister had advised the police during an unrelated traffic stop that Mr.
    Carpenter had been stabbed. The CAS asked the police officer to come with them.
    The CAS asked Ms. Strickland for permission to enter. She agreed, and the CAS
    and the police officer came in. The CAS then asked Ms. Strickland if they could
    look in the bedroom. She agreed again. When one of the CAS representatives entered,
    she saw the applicant lying on the bed clutching a sawed-off shotgun. She screamed
    that the applicant had a gun. The police officer immediately removed everyone
    from the apartment and saw the applicant appear to hide the shotgun under the
    mattress. The officer arrested the applicant, who told him, be careful its
    loaded. The officer called for backup, lifted the mattress, and found the
    shotgun. The officers preserved the scene until a search warrant was obtained
    and then seized the shotgun under the warrant.

[7]

At trial, the applicant applied to exclude the
    evidence derived from the search of the apartment, alleging that the CAS and
    the police breached his rights under s. 8 of the
Charter
. The trial
    judge found that the applicant was a guest of the tenant, Ms. Strickland. He
    found Ms. Strickland had consented to the search and that the search was
    voluntary. He accepted that a tenants guest has some expectation of privacy,
    as against the state actors, such as the CAS and the police but found the
    applicant was a mere over holding guest [and] had no reasonable expectation of
    privacy interests. He found that the applicant had no expectation that Ms.
    Strickland could not consent to a search of the apartment or the bedroom. He
    concluded that the applicants s. 8
Charter
rights were not infringed.
    Even had he found a breach of s. 8, he concluded that any breach was minor and
    would not have warranted exclusion of the evidence under s. 24(2).

[8]

The trial judge made credibility findings for each
    of the witnesses who testified and found beyond a reasonable doubt that the
    applicant had stabbed Mr. Carpenter, assaulted Ms. Lambertsen-Downing
    causing her bodily harm, and possessed a prohibited weapon that he pointed at
    Mr. Davey. He sentenced the applicant to a total sentence of seven years and
    seven months, less credit for pre-trial custody.

C.

Analysis

[9]

To obtain bail pending appeal under s. 679(3) of
    the
Criminal Code
, the applicant must establish that: (1) the appeal
    is not frivolous (s. 679(3)(a)); (2) he will surrender himself into custody in
    accordance with the terms of the order (s. 679(3)(b)); and (3) his
    detention is not necessary in the public interest (s. 679(3)(c)).

[10]

The applicant has met his onus under the first
    two grounds in s. 679(3). There is no dispute that the appeal meets the very
    low bar for being not frivolous under s. 679(3)(a):
R. v. Oland
,
    2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20. Nor does the Crown dispute that the
    applicant will surrender into custody in compliance with a bail order as
    required under s. 679(3)(b).

[11]

The Crown opposes bail only on the third ground,
    s. 679(3)(c). The Crown submits that the applicant has failed to establish that
    his detention is not necessary in the public interest.

[12]

The public interest criterion under s.
    679(3)(c) has two elements: public safety and public confidence in the
    administration of justice:
Oland
, paras. 23, 26.

[13]

I will first address public safety.

Public safety

[14]

Public safety considerations under s. 679(3)(c)
    relate to the protection and safety of the public:
Oland
, at para. 24.
    Bail is not denied for everyone who poses a risk of committing an offence or
    interfering with the administration of justice while on bail. To be denied bail
    for public safety considerations, (i) an individual must pose a substantial
    likelihood of committing an offence or interfering with the administration of
    justice; (ii) the substantial likelihood must endanger the protection or
    safety of the public; and (iii) the individuals detention must be necessary
    for public safety:
R. v. Morales
, [1992] 3 S.C.R. 711, at p. 737;
R.
    v. Stojanovski
, 2020 ONCA 285, at para. 18.

[15]

Public safety considerations alone can justify refusing
    bail in the public interest. And, even where an applicant meets the public
    safety threshold, residual public safety concerns or the absence of any public
    safety concerns should still be considered as part of the public confidence
    analysis:
Oland
, at para. 27.

[16]

The applicant concedes that the offences for
    which he was convicted were very serious and violent, but submits that there is
    no longer a substantial likelihood he would commit any offence, let alone a
    violent one, or interfere with the administration of justice if released on
    bail pending appeal. He therefore says his detention is no longer necessary for
    public safety. He notes that the convictions under appeal arose from his longstanding
    drug and alcohol addiction that he has learned to manage while in custody. He has
    participated in Alcoholics Anonymous and Narcotics Anonymous and other programs
    at the Beaver Creek Institution. He has been sober now for over 2 years.

[17]

Reports prepared by the Beaver Creek Institution
    in September, 2019 and March, 2020 confirm the applicant has made substantial
    progress in managing his addiction and his personal risk factors:

·

The September 2019 report notes substantial
    gains in the applicants ability to recognize and address problems and confirms
    that he has been sober for two years. It notes that he participated in a
    methadone program, communicates positively with staff, has improved relations
    with his family as a result of his sobriety, and is determined to set
    boundaries with anyone who uses drugs, whereas previously he was never sober
    and began to become more violent and aggressive the more drugs he used. The
    report notes that he has made sobriety his number one priority and has planned
    a continuum of care using community supports. His rated ability and commitment
    to manage his thinking that justifies and supports the use of violence, partner
    violence, and general violence has improved from needs a lot of improvement to
    moderate. The report concludes that the applicants current overall ability
    and commitment to use the skills required to manage his various risk factors
    improved and is currently rated as good.

·

The March 2020 report highlights continued
    improvement. It confirms that the applicant conducts himself respectfully with
    staff, has successfully completed his correctional programs, is enrolled in
    school, and has maintained employment. It notes that his risk to public safety
    is reduced from moderate to low. The report states that he has demonstrated
    accountability for his offences and [t]here are no indicators of substance
    abuse during his incarceration. The report also states that [h]e is not
    currently assessed to be a candidate for detention. It concludes that he has
    demonstrated limited negative conduct and there is no evidence of violent
    behaviour or substance abuse institutionally.

[18]

There is, however, evidence of the applicant
    having had one slip in maintaining sobriety while in custody  though it is
    evidence from the applicant himself. In his affidavit in support of bail, the
    applicant states: I have worked hard and have been sober while in custody
    except for one slip, when I consumed alcohol. Though my drinking was not
    discovered by the prison authorities, I told my parole officer that I consumed
    alcohol. This candour suggests that the applicant takes his addiction very
    seriously and is determined to maintain sobriety.

[19]

The applicant says that the court can also have confidence
    about public safety because of his plan of release. It includes him living with
    his mother, his proposed surety; observing a curfew; attending substance abuse
    counselling and Alcoholics Anonymous and Narcotics Anonymous meetings as
    directed by her; not possessing any weapon; and not having any contact with Ms.
    Lambertsen-Downing (with whom he has apparently reconciled and who is the
    mother of their young daughter), except with her prior written orally revocable
    consent and in the presence of another adult; and having no contact with other named
    individuals. His mother, who has never been charged with any criminal offence, has
    pledged $10,000 as surety, which is almost a third of her pre-tax annual income.
    She has been in regular contact with Ms. Lambertsen-Downing and her now two-year-old
    granddaughter, born while the applicant was in custody.

[20]

The Crown does not assert that public safety
    considerations alone justify refusing bail in this case. Still, the Crown
    highlights that the applicant was convicted of very serious offences involving
    violence and a loaded prohibited weapon. While the Crown accepts that the
    applicants criminal behaviour was likely fueled by a serious drug problem, it
    highlights that this problem is longstanding. The Crown also notes that the applicant
    has a prior criminal record, including two impaired driving convictions in 2010
    and 2015, one resist arrest conviction, and a conviction for failing to comply
    with recognizance. The Crown says that the court cannot take comfort from the applicants
    mother as his proposed surety because she was unable to affect her sons drug
    and alcohol problem for many years and he has been violent towards her in the
    past. The Crown also suggested that the applicants pre-sentence report dated
    April 24, 2018 gives a better sense of his character and the depth of his
    addiction.

[21]

As noted, the breach of recognizance, to which
    the applicant pleaded guilty, involved him writing a letter to Ms.
    Lambertsen-Downing to ask about her welfare and the welfare of their child. The
    sentencing judge noted that it did not involve any attempt to obstruct justice
    or any sort of threatening behaviour.

[22]

But I agree with the Crown that, based on the pre-sentence
    report alone, bail would not have been appropriate. That report noted that the applicant
    was then in denial about his drug and alcohol addiction and posed a high-risk
    to reoffend. The situation is, however, markedly different today.

[23]

The evidence on this application suggests that
    the applicants past criminal behaviour was strongly associated with drug and
    alcohol addiction. The applicant now admits that he is an addict and he has
    sought treatment. He has been sober for over two years. He is evaluated very favourably
    by his institution. While I accept that if the applicant relapses there may be
    a risk to public safety, I have concluded that this risk can be managed by the
    applicants determination to maintain his sobriety, if appropriately supported by
    ongoing participation in addiction treatment programs and counselling and by his
    mothers supervision.

[24]

I also note that, at the time of the applicants
    pre-sentence report, his mother was unwilling to have him live with her upon
    his release. But she now is, because he is sober. In her affidavit filed on
    this application, Mrs. Sangster states:

I have seen a major change in him as a result
    of overcoming his addictions  I used to worry about him all the time when he
    was using drugs, but I feel like I have my son back now. He has hope. He is
    himself again. And he understands that he cannot start using again.

She adds: should I have any concerns
    with his behaviour, I will not hesitate to call the police. She also assures
    the court that her son will obey each and every condition imposed on him. I
    will ensure that he does so. I have been given no reason to doubt her.

[25]

I therefore conclude that the applicant should
    not be denied bail because of public safety considerations alone. Any residual
    public safety concerns, which I consider below under the public confidence
    component, can be managed by the applicants plan of release.

[26]

I turn now to the public confidence component.

Public confidence

[27]

The public confidence component involves a
    weighing of two competing interests: enforceability and reviewability.
    Enforceability concerns the need to respect the general rule of the immediate
    enforceability of all judgments. Reviewability concerns the need to provide for
    a meaningful review process, one that does not require persons convicted of
    offences to serve all or a significant part of their sentence only to have
    their conviction overturned on appeal:
Oland
, at paras. 24-26.

(i)

The enforceability interest

[28]

In assessing the enforceability interest, the
    seriousness of the crime has an important role. The more serious the crime, the
    greater the risk that public confidence in the administration of justice will be
    undermined if the person convicted is released on bail pending appeal:
Oland
,
    at para. 37. At the same time, the absence of flight or public safety risks
    will attenuate the enforceability interest. Other factors should also be
    considered where appropriate:
Oland
, at para. 39.

[29]

Here, as already noted, the parties agree that
    the applicants offences were very serious, violent, and involved a firearm. As
    the sentencing judge noted, these offences occurred when the applicant had
    long-standing substance abuse issues that have fundamentally shattered the
    accuseds life; losing his house, truck, girlfriend and business and his
    relationship with his family, including violence against his very supportive,
    indeed overly supportive mother.

[30]

At the same time, the applicant now has renewed
    connections to his family that appear to have motivated his rehabilitative
    progress and will continue to do so. While public safety risks are not
    completely absent, they are substantially reduced, provided the applicant
    maintains his sobriety and follows his addiction treatment plan under his
    mothers supervision.

[31]

I conclude that the absence of flight risks and the
    substantially reduced public safety risks both attenuate the enforceability
    interest.

(ii)

The reviewability interest

[32]

In assessing the reviewability interest, the
    strength of the appeal plays a central role:
Oland
, at para. 40. A
    preliminary assessment of the strength of the appeal is made by reviewing the
    grounds in the notice of appeal for their general legal plausibility and
    foundation in the record, to determine whether those grounds clearly surpass
    the not frivolous criterion:
Oland
, at para. 44. A broader public
    interest in reviewability transcends an individuals interest in any given
    case:
Oland
, at para. 45. The remedy sought on appeal may also inform
    the reviewability interest:
Oland
, at para. 46.

[33]

Here, the applicants appeal raises four main
    grounds, two from conviction and two from sentence.

[34]

First, the applicant asserts that the trial
    judge erred in dismissing his
Charter
application. He says that he had
    a reasonable expectation of privacy over his bedroom, however diminished, and
    that the trial judge erred in law by concluding that Ms. Stricklands consent
    could nullify that expectation. He relies on the Supreme Courts statement in
R.
    v. Reeves
, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 52, that [w]aiver
    by one rights holder does not constitute waiver for all rights holders, and the
    Courts recognition of the high bar for first-party consent because waiving
    s. 8 rights has significant consequences.

[35]

The Crown submits that the trial judge found that
    the applicant did not have a reasonable expectation of privacy having regard
    to the totality of the circumstances and that this finding is entitled to
    deference on appeal.

[36]

I agree with the Crown that the applicant will
    have an uphill challenge in overcoming appellate deference to the trial judges
    findings. Still, there is a general legal plausibility and a foundation in the
    record for his claim that he had a reasonable expectation of privacy in the
    bedroom he was staying in with his girlfriend. The same is true of his argument
    that his privacy expectation, however diminished, could not be waived by Ms.
    Strickland in the circumstances. Indeed, the applicant testified that Ms.
    Strickland and Mr. Davey would ask for permission by knocking on the bedroom door
    before entering and that the door had a lock on it.

[37]

The Crowns submission on this application also reveals
    a potential tension in the trial judges reasons. The Crown interprets the
    trial judge as finding that the applicant did not have a reasonable
    expectation of privacy. Yet the trial judge appeared to conclude that, as a
    guest of the tenant, the applicant did have some expectation of privacy in
    the bedroom, even if a diminished one.

[38]

Second, the applicant asserts that the trial
    judge misapprehended the evidence on core issues central to his reasoning
    process in determining guilt. In particular, he notes that aspects of Mr.
    Carpenters evidence were contradicted by Ms. Stricklands evidence. These
    contradictions are said to have been material because nobody saw the applicant
    stab Mr. Carpenter. At first, Mr. Carpenter himself told the police he did not
    remember being in an altercation with the applicant because both of them were intoxicated.

[39]

The Crown does not address this ground in any
    detail on this application, except to note that the trial judge could accept
    all, none, or some of the evidence and that his overall assessment of the
    evidence is entitled to deference.

[40]

I agree that this will be a challenging ground
    of appeal. It is at best weakly arguable.

[41]

Third, on the sentence appeal, the applicant
    asserts that the trial judge erred by relying on aggravating sentencing factors
    that were unsupported by the evidence. The applicant says that there was no
    evidence that the applicant used a kitchen knife or any other specific
    implement to stab Mr. Carpenter, nor any evidence of peril to Mr. Carpenters
    life. The Crown responds that all these evidentiary findings were open to the
    trial judge on the evidence.

[42]

Fourth, the applicant also asserts on the
    sentence appeal that the trial judge erred by failing to apply the totality
    principle, and thus the cumulative sentence exceeded the applicants overall
    culpability. Because this was the applicants first penitentiary sentence, he
    says the trial judge should have imposed the shortest possible sentence to
    achieve the relevant sentencing objectives, and that, in totality, a sentence
    of seven years and seven months was unduly long and harsh. He says the sentence
    should be reduced to 5 years and 1 month. In response, the Crown says that the
    sentences for each offence were on the low end and that the cumulative sentence
    respected the totality principle given the applicants very violent rampage.

[43]

These grounds again face an uphill battle, but they
    are arguable. In particular, the submission that the trial judge failed to
    advert to or apply the totality principle has a foundation in the reasons for
    sentence, because this principle is not mentioned.

[44]

In conclusion, my preliminary assessment is that
    while some grounds of appeal are stronger than others, cumulatively they clearly
    surpass the not frivolous threshold.

Balancing the public interest in
    enforceability and reviewability

[45]

In conducting a final balancing of the
    enforceability and reviewability interests, public confidence is measured through
    the eyes of a reasonable member of the public, someone who is thoughtful,
    dispassionate, informed of the circumstances of the case and respectful of
    societys fundamental values:
Oland
, at para. 47. Anticipated delay
    in deciding an appeal, relative to the length of the sentence, is also a
    consideration, so as to ensure that the reviewability interest remains
    meaningful:
Oland
, at para. 48.

[46]

The applicant highlighted the COVID-19 pandemic
    and the lack of addiction counselling services currently available at his
    institution. This court has accepted that the COVID-19 pandemic is a factor
    that may be considered as part of the public interest criterion: see e.g.
R.
    v. Kazman
, 2020 ONCA 251, at paras. 17-21;
R. v. Omitiran
, 2020
    ONCA 261, at para. 26; and
R. v. Jesso
, 2020 ONCA 280, at para. 36.
    The weight to be given to this factor depends on the circumstances of each
    case. Unlike in
Kazman
, this applicant is 38 years old and there is no
    evidence he has underlying health conditions that would place him in a group
    particularly vulnerable to COVID-19: see
Kazman
, at para. 17.

[47]

Here, the Crown accepts that, because of the
    pandemic, addiction counselling is currently restricted in detention centres, but
    adds that this is also so in the community. There is, however, evidence before
    me that the Addiction Treatment Centre in Huntsville remains open, with
    modifications to its services. The applicant may therefore have greater access
    to addiction support in the community. Although I have considered this as a
    relevant factor under the public confidence criterion, it is by no means
    decisive. Its absence would not alter my conclusion that the public interest in
    reviewability outweighs the interest in enforceability, nor would its presence have
    been sufficient to outweigh more serious residual public safety concerns than
    those I have found here.

[48]

As to the balancing of the enforceability and
    reviewability interests, the Crown submits that in this case the need for
    enforceability is paramount for maintenance of the publics confidence in the
    administration of justice.

[49]

I respectfully disagree. The enforceability
    interest is somewhat weaker than urged by the Crown, given the lack of flight
    risk and the substantially reduced public safety risks, as highlighted by the
    correctional authorities themselves. The reviewability interest is also somewhat
    stronger than urged by the Crown.

[50]

I am also mindful of the anticipated delay in
    deciding the appeal relative to what remains to be served of the sentence. The applicant
    has already served three years and five months of his sentence  the entire
    sentence for the firearms conviction or the aggravated assault. He was eligible
    for parole on May 1, 2020 and expects to have a parole hearing in August 2020. The
    applicant only recently perfected his appeal and I understand the parties will
    be contacting the court soon to seek a hearing date. This is not a case where bail
    pending appeal is sought at the beginning of a long sentence, which may engage
    a different balance between reviewability and enforceability.

[51]

In the circumstances, I conclude that the public
    interest in reviewability outweighs the enforceability interest. The applicant
    has established that his detention is not necessary in the public interest,
    measured through the eyes of a reasonable member of the public who is
    thoughtful, dispassionate, informed of the circumstances of the case, and
    respectful of societys fundamental values.

D.

Disposition

[52]

For these reasons, I grant the application for
    bail pending appeal.

M.
    Jamal J.A.


