Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210112 DOCKET: C65913

MacPherson, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Alexander Sangster Appellant

Counsel: 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.:

Endorsement

1After 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.

2The trial judge imposed a global sentence of seven years and seven months for the convictions. The appellant appeals the sentence.

3On 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).

4For 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

5The events that ground the appellant’s 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.”

6The 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.

7On 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.

8During 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 Carpenter’s 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.

9While police were investigating the stabbing, two Children’s 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.

10At 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.

11The 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.

12The 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.

13The appellant appeals his conviction on two grounds.

14First, 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.

15With 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)).

16In 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.

17The appellant was present in the apartment’s only bedroom at the time of the search.

18The appellant had no control over the premises. He was a guest of the apartment’s lessees.

19The appellant did not own the apartment.

20The appellant had no historical use of the apartment. He had stayed there, as a guest of the lessees, about three weeks.

21The 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.

22The 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.”

23If 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.”

24In 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.

25The 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.

26I 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.

27In 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.

28The 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.

29I 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”.

30In my view, the appellant cannot meet either component of this test. The trial judge was entitled to accept Carpenter’s testimony, supported by his wife’s recall, that the appellant stabbed him, and to accept S.S.’s testimony that she heard Hickey yell “he just…stabbed him”, referring to the appellant. He was entitled to rely on S.S.’s testimony about the appellant’s assault on Lambertsen-Downing. He was entitled to rely on S.S.’s testimony that the appellant pointed a gun at her and Davey.

31I would dismiss the conviction appeal.

The sentence appeal

32The 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 accused’s 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.

33The 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.

34At 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.

35The 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.

36The appellant advances two arguments on the sentence appeal.

37First, the appellant contends that the global sentence of seven years and seven months was unfit.

38I 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.

39Second, 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.

40The 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 mother’s 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 appellant’s parole eligibility date is May 21, 2020. His statutory release date is June 17, 2022. His warrant expiry date is July 12, 2024.

41I 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.

42There are two categories of material that are relevant on the fresh evidence application – the evidence relating to the appellant’s progress during his 25 months in the Beaver Creek Institution after the sentence was imposed, and the evidence relating to the appellant’s progress during his seven months on bail pending this appeal.

43There 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 appellant’s attitude and behaviour while in custody that are highly complimentary about the appellant and promising in terms of his future prospects in the community.

44These two reports were before the motion judge who heard and granted the appellant’s 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 applicant’s 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 applicant’s “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.”

45This first category of evidence, demonstrating the appellant’s significant progress while at the Beaver Creek Institution, supports a reduction in the appellant’s sentence.

46In the second category – the appellant’s situation since he was granted bail on May 28, 2020 – there is also strong evidence to support the appellant’s actual, and likely continuing, rehabilitation.

47The 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.

48While 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.

49The last sentence of Dr. DeRoode’s 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 Alex’s 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.

50Taking all these factors together – his mother’s 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 appellant’s sentence.

51At 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

52I 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.