



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sangster, 2021 ONCA 21

DATE: 20210112

DOCKET: C65913

MacPherson, Tulloch and Lauwers
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alexander Sangster

Appellant

Erin Dann and Angela Ruffo, for the
    appellant

Gerald Brienza, for the respondent

Heard: December 17, 2020 by video conference

On appeal from the convictions entered
    on March 27, 2018, and the sentence imposed on April 25, 2018, by Justice Jon-Jo
    Douglas of the Ontario Court of Justice.

MacPherson J.A.:

[1]

After a five-day trial before Douglas J. of the
    Ontario Court of Justice in Huntsville, the appellant, Alexander Sangster, was
    found guilty of possession and careless use of a firearm, pointing a firearm,
    aggravated assault against his friend Courtney Carpenter, and assault causing
    bodily harm against his girlfriend Samantha Lambertsen-Downing. He pleaded
    guilty to fail to comply with recognizance. The appellant appeals all of the
    convictions except the fail to comply with recognizance.

[2]

The trial judge imposed a global sentence of
    seven years and seven months for the convictions. The appellant appeals the
    sentence.

[3]

On the sentence appeal, the appellant seeks to
    introduce fresh evidence about his rehabilitative progress while in custody post-sentence
    (25 months) and while on bail pending appeal (7 months).

[4]

For the reasons below, I would dismiss the
    conviction appeal and allow the sentence appeal on the basis of the fresh
    evidence application.

The conviction appeal

[5]

The events that ground the appellants
    convictions, as described accurately in his factum, arise out of a tumultuous
    evening at the apartment building where the Appellant was living on May 29,
    2017. Everyone was intoxicated and several fights took place.

[6]

The appellant and his girlfriend were staying
    with S.S. and Ryan Davey in apartment #4 in an apartment building in
    Huntsville. They had been living there, by invitation, for about three weeks.
    Courtney Carpenter and Patricia Hickey lived in apartment #3.

[7]

On May 29, 2017, people in both apartments
    became heavily intoxicated. The appellant and his girlfriend were involved in a
    fight that spilled into the hallway outside the apartment. Carpenter and Hickey
    heard the fight in the hallway, left their apartment, and intervened. The
    appellant and Carpenter wrestled on the floor before separating. The appellant
    was violent toward his girlfriend the rest of the evening. At one point in the
    evening the appellant was walking around with a gun; he pointed it at Davey,
    and then at S.S. when she stepped in front of Davey.

[8]

During his fight with the appellant, Carpenter
    was stabbed in the kidney. Carpenter did not realize he had been stabbed or, in
    any event, did not remember it happening. The next morning Carpenter called his
    sister who rushed over to meet him at his apartment. She was pulled over by
    police for speeding before she could get to him. Police learned about the
    stabbing from her during the traffic stop. When police arrived at Carpenters
    apartment, he told them he could not remember who had stabbed him and suggested
    that he may have been jumped outside the apartment building or bitten by a dog.
    Later, after speaking with Hickey in hospital, he remembered the fight with the
    appellant in the hallway.

[9]

While police were investigating the stabbing,
    two Childrens Aid Society workers noticed the police cars parked outside the
    apartment building. They decided to visit S.S. who had missed her appointment
    with CAS that morning, was pregnant and had a child in care. One of the police
    officers at the scene, Constable Fleming, accompanied them to apartment #4. The
    CAS workers asked if they could enter the unit. S.S. agreed. Constable Fleming entered,
    but remained in the hallway. One of the CAS workers asked S.S. if she would
    open the bedroom door; when S.S opened the door, the CAS worker saw the
    appellant holding a gun. The CAS worker screamed something to the effect of he
    has a gun and ran out of the bedroom. Constable Fleming went to the bedroom
    where he saw the appellant hiding something under the mattress. Later, he
    obtained a search warrant and seized a shotgun from under the mattress and some
    shells from the vicinity.

[10]

At the start of the trial, the appellant brought
    an application pursuant to ss. 8 and 24(2) of the
Canadian Charter of
    Rights and Freedoms
to exclude the evidence obtained from the search of
    apartment #4 by the CAS workers and the police.

[11]

The trial judge dismissed the
Charter
application.
    In determining that there was no s. 8 breach, the trial judge reasoned that although
    the appellant had some expectation of privacy as a guest, that expectation
    did not reasonably extend to prevent the search to which S.S., the principal
    resident of the apartment, consented, including to open the door to the
    bedroom. The trial judge also addressed s. 24(2) of the
Charter
,
    concluding that if there was a breach of s. 8 it was minor and the
Grant
factors favoured admission of the evidence:
R. v. Grant
, 2009
    SCC 32
.

[12]

The trial judge found the appellant guilty of
    wounding Carpenter by stabbing, assault causing bodily harm to Lambertson-Downing,
    pointing a firearm at Davey, careless use of a firearm and possession of a
    loaded prohibited weapon.

[13]

The appellant appeals his conviction on two
    grounds.

[14]

First, the appellant contends that the trial
    judge erred in dismissing his
Charter
application. The appellant says
    that he had a reasonable expectation of privacy in his bedroom that could not
    be nullified by S.S.'s consent to the search and, in any event, there was no
    valid consent by S.S. to search the apartment.

[15]

With respect to the first component of this
    argument, the starting point is
R. v. Reeves
, 2018 SCC 56, where
    Karakatsanis J. said, at para. 12:

Section 8 of the
Charter
is only
    engaged if the claimant has a reasonable expectation of privacy in the place or
    item that is inspected or taken by the state (
R. v. Cole
, 2012 SCC 53,
    [2012] 3 S.C.R. 34, at paras. 34 and 36). To determine whether the claimant has
    a reasonable expectation of privacy, courts examine the totality of the
    circumstances (
R. v. Edwards
, [1996] 1 S.C.R. 128, at paras. 31 and
    45(5)).

[16]

In
Edwards
, Cory J. said, at para. 45:

The factors to be considered in assessing the
    totality of the circumstances may include, but are not restricted to, the
    following:

(i) presence at the time of the search;

(ii) possession or control of the property
    or place searched;

(iii) ownership of the property or place;

(iv) historical use of the property or
    item;

(v) the ability to regulate access,
    including the right to admit or exclude others from the place;

(vi) the existence of a subjective
    expectation of privacy; and

(vii) the objective reasonableness of the
    expectation.

[17]

The appellant was present in the apartments
    only bedroom at the time of the search.

[18]

The appellant had no control over the premises.
    He was a guest of the apartments lessees.

[19]

The appellant did not own the apartment.

[20]

The appellant had no historical use of the
    apartment. He had stayed there, as a guest of the lessees, about three weeks.

[21]

The appellant had no ability to regulate access
    to the apartment or even to the bedroom where he and the gun were found. He
    slept in the bedroom only because S.S. and Davey preferred to sleep on a
    mattress on the living room floor because it was cooler there. Referring to the
    bedroom, S.S. said: I kept almost everything in there, my clothes, my dresser,
    my crib, my baby stuff, my stroller, car seat. She also kept her mattress in
    the bedroom during the daytime and moved it to the living room at night.

[22]

The appellant testified in the
voir dire
on the
Charter
application and said that he had an expectation of
    privacy in the bedroom. His testimony was the only evidence that he contributed
    groceries or rent to the apartment. The trial judge rejected his evidence: The
    accused testified as to his living arrangement. Broadly speaking his evidence
    is not to be considered reliable.

[23]

If the appellant had a subjective expectation of
    privacy in the bedroom and apartment, it was not objectively reasonable. He and
    his girlfriend had been there only three weeks. They were there as guests of S.S.
    and Davey. And, as the trial judge observed, [t]his is a very small
    apartment.

[24]

In summary, an application of the
Edwards
factors
    overwhelmingly supports the trial judge's conclusion that the appellant had
    only a low expectation of privacy with respect to the bedroom and that it did
    not extend to render the search of the bedroom unreasonable.

[25]

The appellant's second argument on this issue is
    that in any event, contrary to the trial judge's conclusion, S.S. did not validly
    consent to the entry of the CAS workers and police into either apartment #4 or
    the bedroom.

[26]

I do not accept this submission. In his
    judgment, the trial judge described the circumstances of the entry into the
    apartment and bedroom of, first, the CAS workers and, second, Constable
    Fleming:

CAS knocked on the door. [S.S.] answered. CAS
    had no statutory authority to enter and search unless apprehending the child. They
    thus have a well established protocol of requesting permission to enter. They
    did, and [S.S.] agreed.  This is a very small apartment. [S.S.] and the CAS
    entered near to the kitchen area while Fleming hung back in the hall area.  Again,
    pursuant to protocol, CAS asked to search the cupboards, fridge et cetera. Permission
    was granted.  The only bedroom door was closed. [S.S.] was asked if they could
    look in the room. [S.S.] said to CAS, Ms. Fraser, go ahead and open the door.
    Ms. Fraser said no, you open it. [S.S.] did.

[27]

In my view, this chronology, with care taken
    throughout to ensure that S.S. was consenting to each step in the process,
    easily complies with the test for determining whether a consent is valid, set
    out by this court in
R. v. Wills
(1992), 70 C.C.C (3d) 529 (Ont. C.A.),
    at p. 546.

[28]

The appellant's second ground of appeal is that
    the trial judge misapprehended the evidence in such a way that renders the
    convictions on three counts a miscarriage of justice. The convictions that the
    appellant challenges on this basis are the aggravated assault (stabbing) of
    Carpenter, the assault causing bodily harm against Lambertsen-Downing, and the
    possession and careless storage of a firearm.

[29]

I am not persuaded by this submission. In
R.
    v. Lohrer
, 2004 SCC 80, at para. 2, Binnie J. articulated the high bar
    that must be met to satisfy this ground of appeal:

Morrissey
, it
    should be emphasized, describes a stringent standard. The misapprehension of
    the evidence must go to the substance rather than to the detail. It must be
    material rather than peripheral to the reasoning of the trial judge. Once those
    hurdles are surmounted, there is the further hurdle (the test is expressed as
    conjunctive rather than disjunctive) that the errors thus identified must play
    an essential part not just in the narrative of the judgment but in the
    reasoning process resulting in a conviction.

[30]

In my view, the appellant cannot meet either
    component of this test. The trial judge was entitled to accept Carpenters
    testimony, supported by his wifes recall, that the appellant stabbed him, and
    to accept S.S.s testimony that she heard Hickey yell he juststabbed him,
    referring to the appellant. He was entitled to rely on S.S.s testimony about
    the appellants assault on Lambertsen-Downing. He was entitled to rely on S.S.s
    testimony that the appellant pointed a gun at her and Davey.

[31]

I would dismiss the conviction appeal.

The sentence appeal

[32]

The trial judge imposed a global sentence of
    seven years and seven months on the appellant. As an introduction, he stated:

The five offences can be categorized into four
    parts:

1.
The stabbing of the neighbour;

2.
The assault [causing] bodily harm on the accuseds girlfriend;

3.
The pointing of and carrying of a loaded prohibited weapon, being
    the sawed-off shotgun; and

4.
The related concurrent possession of that shotgun prior to these  incidents
    and when ultimately arrested by the police the following morning.

[33]

The trial judge imposed the following sentences:

Count 1  aggravated assault, three years and
    3 months;

Count 3  assault causing bodily harm, one
    year consecutive;

Counts 5, 6 and 7  the gun charges, three
    years and three months concurrent to one another but consecutive to all other
    sentences; and

Count 9  the breach, one month consecutive.

[34]

At the sentence hearing, the Crown proposed a
    sentencing range of six years and seven months to eight years and two months.
    The defence proposed a sentence of approximately four years and seven months.
    Hence the sentence imposed by the trial judge was squarely inside the Crown
    position and outside the defence position.

[35]

The trial judge gave credit for pre-trial
    custody on a 1.5:1 basis totalling 497 days. He concluded:

His total sentence of seven years and seven
    months is a sentence of 2,768 days from which I deduct the 497 days, leaving
    him 2,271 days to serve or six years and 81 days to serve.

[36]

The appellant advances two arguments on the
    sentence appeal.

[37]

First, the appellant contends that the global
    sentence of seven years and seven months was unfit.

[38]

I do not accept this submission. Although the
    sentence was certainly at the high end of the range, it was not, in my view,
    outside the range. On the night and morning in question, the appellant went on
    a crime binge that injured his girlfriend, almost killed his friend and
    neighbour, and could have resulted in harm to several other people.

[39]

Second, on the basis of a fresh evidence
    application, the appellant seeks an order that the sentence appeal be allowed
    and the sentence be reduced to one of time served.

[40]

The background to the fresh evidence application
    is this chronology: the appellant was sentenced to seven years and seven months
    imprisonment on April 25, 2018 at which time he began to serve his sentence; he
    perfected his appeal in March 2020; he was granted bail pending appeal on May
    28, 2020. Since being granted bail, a period of just over seven months, he has
    been living at his mothers home in Huntsville. This chronology establishes
    that the appellant has served about three years and five and a half months of
    his sentence (one year and four and a half months in pre-trial custody and two years
    and one month in post-sentence custody). The appellants parole eligibility
    date is May 21, 2020. His statutory release date is June 17, 2022. His warrant
    expiry date is July 12, 2024.

[41]

I would allow the application to introduce fresh
    evidence. The evidence meets the requirements of the test in
Palmer v. The
    Queen
, [1980] 1 S.C.R. 759, at p. 775: it could not have been adduced at
    trial, it is relevant, it is credible, and it could reasonably be expected to
    have affected the result.

[42]

There are two categories of material that are
    relevant on the fresh evidence application  the evidence relating to the
    appellants progress during his 25 months in the Beaver Creek Institution after
    the sentence was imposed, and the evidence relating to the appellants progress
    during his seven months on bail pending this appeal.

[43]

There is strong evidence that the appellant made
    substantial progress during his 25 months in custody at the Beaver Creek
    Institution. There are two comprehensive reports about the appellants attitude
    and behaviour while in custody that are highly complimentary about the
    appellant and promising in terms of his future prospects in the community.

[44]

These two reports were before the motion judge
    who heard and granted the appellants bail application in May 2020. In
R.
    v. Sangster
, 2020 ONCA 332, at para. 17, Jamal J.A. said this about these
    reports:

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.

[45]

This first category of evidence, demonstrating
    the appellants significant progress while at the Beaver Creek Institution,
    supports a reduction in the appellants sentence.

[46]

In the second category  the appellants
    situation since he was granted bail on May 28, 2020  there is also strong
    evidence to support the appellants actual, and likely continuing,
    rehabilitation.

[47]

The appellant has been living with his mother
    while on bail. In a letter filed with the court, she records:

I have had many conversations with my son
    which have clearly demonstrated to me that his past behaviour, which was
    greatly influenced by severe drug and alcohol abuse/addiction, is a thing of
    the past. I feel that I now have back the son that I raised.



In my view Alex has taken full responsibility
    for his past poor life choices, which led to the loss of his good reputation
    and culminated in his criminal behaviour, for which he was found guilty.

Alex became a first time father during his
    incarceration. His daughter  has brought great happiness and a deep bond
    between them. I believe Alex will forever fulfill his role as a father, along
    with his long time mate Samantha (mother of his child). Alex and Samantha have
    a loving, devoted and respectful relationship towards each other and co-parent
    very well.



He has clearly benefited from the programs he
    attended at Beaver Creek.

[48]

While on bail, the appellant reports that he has
    been working with the Ontario Addiction Treatment Centre to connect with
    resources to help him manage his addiction challenges. This is confirmed in a
    letter from Dr. Michael DeRoode of the OATC in Huntsville who sees the
    appellant on a weekly basis and reports excellent progress:

Since starting the program, Alex has been
    focused and goal oriented. He has worked hard to make the program work for him
    and has reaped the rewards. He also attends my general medical clinic where we
    have worked hard at treating some of his underlying psychologic issues. He now
    takes medication for these issues and they have helped his concentration and
    impulsiveness. He is on stable doses of these meds. This has allowed him to
    achieve a goal of gainful employment.

[49]

The last sentence of Dr. DeRoodes report is
    confirmed by Matthew Marietta, a friend of the appellant:

I have known Alex Sangster for over 20 years,
    we met while attending Huntsville High School. [H]e took a path that led him
    to make very poor choices.

Since Alexs temporary release from Beaver
    Creek, I have noticed a huge change in his mannerism, drive and demeanor. He
    has been volunteering some hours around my home with repairs, clean up and
    other household chores that I have needed assistance with. As I own a small
    local business, Premier Northern Exteriors, it would be a great pleasure to
    have Alex join my team after his court date.

[50]

Taking all these factors together  his mothers
    support and supervision, a very young first child born while he was
    incarcerated, a revived relationship with his partner, good medical and
    psychological support, and the promise of stable employment  I conclude that
    the second category of fresh evidence also supports a reduction in the appellants
    sentence.

[51]

At this juncture, and bearing in mind that the
    original sentence was a stiff sentence, I see that no good purpose  for the
    appellant or the administration of justice  would be served by reincarcerating
    the appellant.

Disposition

[52]

I would dismiss the conviction appeal. I would
    allow the sentence appeal on the basis of the fresh evidence application only
    and substitute a sentence, at this juncture, of time served.

Released: JCM  JAN 12 2021

J.C.
    MacPherson J.A.

I
    agree. M. Tulloch J.A.

I
    agree. P. Lauwers J.A.


