Court of Appeal for Ontario

Date: 20220927 Docket: M53757 (COA-22-CR-0118)

Before: Trotter J.A. (Motion Judge)

Between: His Majesty the King, Respondent and Jonathan Weir, Applicant (Appellant)

Counsel: Paul Alexander, for the applicant Jennifer Epstein, for the respondent

Heard: September 26, 2022 by video conference

Reasons for Decision

[1] This is an application for bail pending the appeal of a prison sentence for manslaughter.

[2] The applicant killed his best friend, Tyler Swartz (age 19), with a machine gun. He was originally charged with first degree murder. Three months later a new information was laid charging him with second degree murder. During his preliminary inquiry, the applicant entered a plea of guilty to manslaughter.

[3] It is not necessary to delve into the facts in great detail at this stage. The applicant was a gun enthusiast. At the time of the offence, he occupied an apartment above a garage on his uncle’s country property. Mr. Swartz came to the property and the two went hunting. After they returned to the apartment, they handled the machine gun. When the applicant took control of it, the gun discharged two bullets, killing Mr. Swartz. The applicant did not call emergency services for over an hour. In the meantime, he disposed of the machine gun by throwing it into a pond. When the police arrived, he lied about what had actually happened to Mr. Swartz.

[4] When they entered the apartment, the police discovered another gun – a rifle – next to Mr. Swartz’s body, in addition to hundreds of rounds of live ammunition all over the property, including in the applicant’s truck. None of the ammunition was properly stored. The police found a bong, a bottle of liquor, and cocaine on the dining room table. Metabolites of cannabis and cocaine were detected in Mr. Swartz’s system.

[5] Pulling all of these factors together, the sentencing judge characterized the circumstances of the offence as follows in 2022 ONCJ 399, at para. 78:

Jonathan Weir did not intend to harm, let alone kill, Tyler Swartz. He did not intend to fire the machine gun. He did not know that it was loaded. All this said, I do not agree with the defence that on the spectrum of moral responsibility in manslaughter cases that this was a “near accident”. Nor do I find this to be a situation of “near murder.” For reasons I will explain, I find that the moral responsibility of this offender is far closer to that of criminal negligence, which involves wanton and reckless disregard to human life.

[6] When a firearm is used to commit manslaughter, an accused person faces a minimum mandatory sentence of four years’ imprisonment: Criminal Code, R.S.C. 1985, c. C-46, s. 236(a). The applicant was unsuccessful in attempting to strike down this provision on the basis that it violated s. 12 of the Charter. The sentencing judge determined that a fit sentence was five years’ imprisonment. After deducting credit for pre-sentence custody (5 months), strict bail conditions (3 months), and improper strip searches (1 month), the applicant was sentenced to 51 months’ imprisonment.

[7] On an application for bail pending the appeal of sentence alone, an applicant must first obtain leave to appeal (s. 679(1)(b)), and also satisfy the following criteria in s. 679(4):

(4) In the case of an appeal referred to in paragraph (1)(b), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal or until otherwise ordered by the judge of the court of appeal if the appellant establishes that

(a) the appeal has sufficient merits that, in the circumstances, it would cause unnecessary hardship if he were detained in custody;

(b) he will surrender himself into custody in accordance with the terms of the order; and

(c) his detention is not necessary in the public interest.

[8] The Crown concedes that leave to appeal ought to be granted. She agrees that the applicant does not pose a flight risk. However, the Crown submits that the applicant has failed to establish that his appeal has sufficient merit such that detention in custody would cause unnecessary hardship. She also submits that the applicant’s release is not in the public interest.

[9] The applicant is 24 years old. Apart from his conviction for manslaughter, he has no other convictions. He was on pre-trial bail for almost 3 ½ years. There is no indication that he breached any of the terms of his release. He enjoys the support of his family. He offers a highly credible release plan. Collectively, his sureties are prepared to pledge roughly $2 million.

[10] Nevertheless, I am not satisfied that the appeal is sufficiently meritorious such that the applicant will suffer undue hardship if bail is denied. At this stage, it would appear the chances of substantial success on this appeal are slim. I say “substantial” because the applicant must establish that he will likely end up serving more time than is appropriate in the circumstances. As Bryson J.A. said in R. v. Johnston, 2014 NSCA 78, 349 N.S.R. (2d) 122, at para. 21, “there is no unnecessary hardship in serving an appropriate sentence.”

[11] It may be that a panel of this court will accede to the applicant’s submission that the sentencing judge should have given more credit for the applicant’s pre-sentence circumstances, and for the strip searches. But it is highly unlikely that it will result in a substantial reduction of the sentence imposed. Moreover, the appellant’s submission that he should have received credit for having initially faced a charge of first degree murder is doubtful; after all, the charge was reduced to second degree murder three months later.

[12] The applicant also submits that the sentencing judge erred in failing to strike down s. 236(a) of the Criminal Code as unconstitutional. He finds fault in the sentencing judge’s failure to meaningfully consider the new hypothetical scenarios advanced by his counsel at trial. This too seems unlikely to succeed. The issue has been decided by the Supreme Court of Canada in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96. Moreover, the sentencing judge was of the view that a sentence in excess of the mandatory minimum sentence was appropriate in this case. Thus, even if the applicant were successful on the constitutional issue, it is far from a foregone conclusion that the sentence imposed was unfit, especially given the many aggravating features of this offence.

[13] Any concern that the applicant may be at risk of serving more time than is ultimately determined to be appropriate may be prevented by securing an early date for the hearing of this sentence appeal. I am advised by the Appeal Scheduling Unit that there are numerous available dates between now and the end of the year.

[14] Consequently, the applicant has failed to discharge his onus under s. 679(4)(a). And while it is not strictly necessary to address the public interest ground in s. 679(4)(c), I agree with the Crown that enforceability concerns must outweigh reviewability considerations in this case. The many aggravating features that gave rise to the needless and tragic loss of a young life must prevail over the very modest chances of substantial success on appeal. Again, a promptly listed appeal may mitigate any miscalculation on my part in conducting this balancing exercise.

[15] Leave to appeal sentence is granted, but the application for bail pending appeal is dismissed.

“G.T. Trotter J.A.”