COURT OF APPEAL FOR ONTARIO DATE: 20200528 DOCKET: M51545 (C65913)
Jamal J.A. (Motions Judge)
BETWEEN
Her Majesty the Queen
Respondent
and
Alexander Sangster
Applicant
Counsel: 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 Children’s 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. Carpenter’s 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 it’s 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 tenant’s 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 applicant’s 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 individual’s 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 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.”
[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 applicant’s 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 applicant’s mother as his proposed surety because she was unable to affect her son’s drug and alcohol problem for many years and he has been violent towards her in the past. The Crown also suggested that the applicant’s 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 applicant’s 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 applicant’s determination to maintain his sobriety, if appropriately supported by ongoing participation in addiction treatment programs and counselling and by his mother’s supervision.
[24] I also note that, at the time of the applicant’s 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 applicant’s 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 applicant’s 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 accused’s 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 mother’s 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 individual’s 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 applicant’s 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. Strickland’s consent could nullify that expectation. He relies on the Supreme Court’s 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 Court’s 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 judge’s 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 Crown’s submission on this application also reveals a potential tension in the trial judge’s 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. Carpenter’s evidence were contradicted by Ms. Strickland’s 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. Carpenter’s 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 applicant’s overall culpability. Because this was the applicant’s 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 applicant’s 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 society’s 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 public’s 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 society’s fundamental values.
D. Disposition
[52] For these reasons, I grant the application for bail pending appeal.
“M. Jamal J.A.”