ENDORSEMENT

bird J.:

[1] Gregory Sappleton is charged with possessing a loaded restricted or prohibited firearm, possession of that firearm in contravention of an order prohibiting him from possessing firearms and two counts of failing to comply with a recognizance. He brings an application for bail review pursuant to Sections 520 and 525 of the Criminal Code of Canada.

[2] Mr. Sappleton had a bail hearing before a Justice of the Peace on October 22, 2019 and was detained in custody. He was in a reverse onus situation by virtue of the fact that he was on a recognizance of bail for a charge of domestic assault. Mr. Sappleton was subsequently found not guilty of that offence.

[3] He then brought an application for a bail review under Section 520 of the Criminal Code. That application was heard and dismissed by Speyer J. on December 20, 2019. Mr. Sappleton alleged that there were three material changes in circumstance since his original bail hearing: (i) his acquittal on the domestic assault charge; (ii) an enhanced plan of supervision involving two different sureties; and (iii) the birth of his premature baby. Speyer J. found that the first two developments did constitute a material change in circumstance. Nevertheless, she maintained the detention order on the secondary ground after finding that there was a substantial risk that Mr. Sappleton would commit a further serious criminal offence that was not sufficiently mitigated by his new release plan.

[4] Mr. Sappleton now seeks a review of his detention order pursuant to both Sections 520 and 525 of the Criminal Code. In R. v. St. Cloud, 2015 SCC 27, the Supreme Court of Canada clarified the appropriate scope of Section 520 bail review applications. They are not de novo hearings. Intervention is appropriate in three situations: where there has been a material change in circumstances, where the Justice of the Peace erred in law, or where the decision of the Justice of the Peace is clearly inappropriate.

[5] Mr. Sappleton alleges three new changes in circumstances which he submits are material: (i) the addition of electronic monitoring to his release plan which would require him to abide by a condition of house arrest with very limited exceptions; (ii) the fact that he has provided a formal Notice of Application and factum setting out in detail alleged Charter violations in relation to the seizure of the gun; and (iii) the Covid-19 pandemic which has resulted in the temporary suspension of in-person sittings of the Ontario Superior Court. This means that Mr. Sappleton’s pre-trial motions currently scheduled to be heard in May will be adjourned. Further, all of the medical advice urges people to self-isolate and practice social distancing in order to protect themselves against the virus which is impossible to do in a custodial facility. Mr. Sappleton is asthmatic which puts him at greater risk for complications if he contracts Covid-19.

[6] Mr. Sappleton has been in custody for more than 90 days since his Section 520 bail review which entitles him to a review of his detention pursuant to Section 525. The approach to be taken on a review of this nature was clarified in the decision of R. v. Myers 2019 SCC 18. The question I must ask myself is whether the continued detention of Mr. Sappleton is still justified with the meaning of Section 515(10) of the Criminal Code. I must consider any new evidence or change in the circumstances of Mr. Sappleton, the impact of the passage of time and any unreasonable delay on the proportionality of the detention and the rationale offered for the original detention order.

[7] On consent, Mr. Sappleton’s current bail review was held via teleconference. A judge’s Order was signed requiring the detention centre to bring Mr. Sappleton to a telephone in the facility so that he could participate in the call. That did not happen. Despite the best efforts of Mr. Sappleton’s lawyer and the Trial Coordinators, Mr. Sappleton never joined the conference call. It is not necessary for an accused person to be present for his bail review and all parties agreed to proceed in his absence.

[8] The allegations Mr. Sappleton is facing are extremely serious. After stopping Mr. Sappleton for a Highway Traffic Act violation, the officer discovered that he was in violation of a condition of his bail on the domestic assault charge. Mr. Sappleton was not supposed to be within 500m of the complainant’s home address. He was in clear violation of that condition and in fact pulled into the parking lot of the complainant’s apartment building.

[9] Mr. Sappleton was told that he was under arrest for failing to comply with his recognizance and was asked to step out of the car. When he did so the officer saw that he was holding an open satchel that contained what appeared to be a large quantity of marijuana. Mr. Sappleton was placed in the back of the police car. The officer then searched Mr. Sappleton’s car and found a loaded 9mm handgun in the glove compartment. The officer relied on Section 12(3) of the Cannabis Control Act as providing the lawful authority for the warrantless search of Mr. Sappleton’s car.

[10] Mr. Sappleton’s trial was scheduled to proceed in two phases. First, his pre-trial motions were set for three days commencing May 11, 2020. Those dates have been vacated by the Order of Chief Justice Morawetz made on March 15, 2020 adjourning all criminal matters scheduled between March 17 and June 1, 2020. Mr. Sappleton’s jury trial is set to begin on October 13, 2020 and is scheduled for 7 days.

[11] Mr. Sappleton is currently 34 years of age. He has an unenviable and concerning criminal record. As a youth, he accumulated several findings of guilt for offences of violence for which he received probation. He was convicted of assault in 2005 and received a short jail sentence. In 2011, Mr. Sappleton was convicted of robbery and possession of a firearm or ammunition in contravention of a prohibition order. Taking into account his pre-sentence custody, he received a sentence totalling more than six years. While I was not provided with any information about the facts underlying those convictions, the sentence suggests that the offences were serious.

[12] As noted, Mr. Sappleton was on bail for domestic assault at the time of the current offences. He was required to reside with his mother and his step-father. The same two people were proposed as sureties before Speyer J. and again before me. The fact that Mr. Sappleton was in clear violation of at least two conditions of that release gives rise to a significant concern about the ability of his parents to exercise control over him and his willingness to comply with bail conditions. I have no hesitation in agreeing with the decision of Speyer J. based on the record before her.

[13] The issue for me to determine is whether there has been a material change of circumstances as contemplated by Section 520 and whether on a Section 525 review Mr. Sappleton’s detention is still justified.

[14] The concern in relation to Mr. Sappleton is on the secondary ground in light of his criminal record for offences involving violence and the serious nature of these allegations. Mr. Sappleton has no convictions for failing to appear in court. In addition, he is a Canadian citizen with strong family ties to the community. I find that Mr. Sappleton has met his onus on the primary ground.

[15] The tertiary ground does give rise to some concerns. The offences with which Mr. Sappleton is charged are extremely serious. If he is convicted of possessing a loaded firearm, he will face a significant penitentiary sentence. However, there is a live issue with respect to the strength of the Crown’s case based on a possible violation of Section 8 of the Charter. This issue was raised in oral submissions before Speyer J. but only in very broad terms. In support of this application, counsel for Mr. Sappleton has filed a copy of his Charter application and factum in support of his position that his rights as protected by Sections 8 and 9 were violated.

[16] The arguments in relation to Section 8 are not without merit. There is a real question about whether, given the fact that Mr. Sappleton was under arrest at the time of the search, he was in care and control of the motor vehicle. Further, there will be an issue about the sufficiency of the officer’s grounds to believe that there was additional marijuana in the car that did not fall within the exception set out in Section 12(2) of the CCA. Obviously, I have limited information available to me and am not in a position to make any finding in relation to a possible Charter violation. However, based on the synopsis provided by the Crown and the factum of Mr. Sappleton, his argument appears to have merit. The strength of his Charter application was not apparent to Speyer J.

[17] In R. v. Reid [2000] O.J. No. 3603 (S.C.J.) Hill J. heard an application for a Section 520 bail review in similar circumstances. That case involved a loaded handgun possessed by someone who was on bail for other offences. In considering the application, Hill J. took into account the fact that there was a substantial concern that there was an arbitrary vehicle stop and breaches of Sections 10(b) and 8 of the Charter. He accepted that possessing a loaded firearm is a grave offence deserving of serious punishment. Further, because the Applicant was already on bail for charges of threatening, Hill J. found that there was a substantial likelihood that he would commit other offences. Balancing this concern against the frailties in the Crown’s case raised by the Charter issues, Hill J. held that a release on strict conditions was appropriate.

[18] With respect to Mr. Sappleton, there are very serious concerns that he will commit further offences if released. He has a criminal record for violence dating back to 2001 and served a lengthy term in the penitentiary for robbery. Mr. Sappleton has demonstrated a lack of respect for court orders in the past. His parents were unable to effectively monitor him when they were his sureties on the domestic assault bail. The plan that was presented to Speyer J. was not sufficient to address the significant secondary ground concerns. There was not a plan involving constant supervision and house arrest.

[19] The question on this review is whether the new plan, which includes electronic monitoring, reduces the risk that Mr. Sappleton will commit further offences to the point that his release on bail would not put the safety of the public at risk. I must also consider, pursuant to Section 525, whether Mr. Sappleton’s continued detention in custody is justified taking into account any new evidence, changes in circumstances and delay.

[20] Mr. Sappleton submits that the Covid-19 pandemic is a significant development. It has caused the temporary suspension of in-person sittings of the Superior Court which means that his May pre-trial motions date has been lost. Given the inability of people in custody to self-isolate and practice social distancing, he further asserts that his custodial status is placing his health in jeopardy particularly in light of his asthma.

[21] On both a review under Section 520 and Section 525, I must determine whether Mr. Sappleton’s detention is justified based on the criteria set out in Section 515(10). I have already determined that his detention is not justified on the primary ground. The impact of the Covid-19 pandemic is something that warrants consideration under the tertiary ground. Detention in circumstances involving significant delays or an increased risk to an accused person’s health may not be necessary in order to maintain public confidence in the administration of justice.

[22] In this case, I am not satisfied that the Covid-19 pandemic is a material change of circumstances that ought to lead to Mr. Sappleton’s release. In coming to this conclusion, I do not in any way wish to minimize the seriousness of the virus or its potential impact on a large segment of the population. However, there is no evidence that at the current time Mr. Sappleton’s health is at risk. There is no evidence that there are cases of Covid-19 in his detention centre. Nor is there evidence of any failure on the part of correctional staff to appropriately manage the health concerns created by the virus.

[23] With respect to the loss of Mr. Sappleton’s pre-trial motions date, I am not satisfied that it will result in his trial being delayed. While it would be preferable to have the Charter application dealt with in advance of the trial, it is not uncommon for pre-trial motions to be heard immediately before the trial proper begins. The total time estimate for Mr. Sappleton’s trial including pre-trial motions and the jury trial is 10 days. Seven days have been set aside for his trial beginning October 13, 2020. Trials in this region are usually set in weekly blocks. Therefore, it is quite possible that Mr. Sappleton’s trial will be able to proceed from October 13 through to October 23. This would permit the trial judge to hear the pre-trial application and, if that is dismissed, immediately continue on with the jury trial.

[24] Nevertheless, I am of the view that Mr. Sappleton has met his onus on the tertiary ground largely because of his Section 8 argument which appears to have considerable merit. I also note that Speyer J. maintained his detention order only on the secondary ground. She did not deal with the tertiary ground because her finding on the secondary ground was sufficient to decide Mr. Sappleton’s application.

[25] The real issue in relation to Mr. Sappleton is whether a release can be fashioned that is strict enough to reduce the risk that he will commit further offences to the point where the safety of the public is not in jeopardy. Mr. Sappleton’s history of committing offences and his past disregard for court orders means that he cannot be taken at his word when he promises to comply with bail conditions. Mr. Sappleton’s parents were not able to prevent him from violating the terms of his domestic assault bail. However, they did not have the assistance of electronic monitoring which is now a key component of the release plan.

[26] Mr. Sappleton’s past offences have taken place in the community. While I have not been provided with the facts underlying the robbery conviction, there is nothing to suggest it occurred in his parents’ home. The current allegations involved him driving around with a loaded gun in his car. If Mr. Sappleton is unable to leave his home unless he is in the direct company of one of his sureties and that condition is enforced by him wearing an ankle bracelet, that significantly reduces his opportunity to commit further offences.

[27] In assessing whether Mr. Sappleton has now met his onus on the secondary grounds, I take into account the following statement of Wagner C.J. in Myers at paragraph 53:

“In an appropriate case, it may also be possible for the judge to conclude that a hypothetical risk in relation to the primary or secondary ground is simply outweighed by the certain cost of the accused person’s loss of liberty or of a loss of the public confidence in the administration of justice”.

[28] I am satisfied that there have been two material changes since the Section 520 bail review heard by Speyer J. First, the strength of Mr. Sappleton’s Section 8 argument has been clarified by his filing of a formal application and a factum setting out in detail the evidence and law in support of his position. Second, the addition of electronic monitoring sufficiently strengthens Mr. Sappleton’s plan of release to mitigate the risk that he will commit further offences if released from custody.

[29] Taking into account all of the circumstances, I am of the view that Mr. Sappleton’s continued detention in custody is no longer justified having regard to the criteria set out in Section 515(10) of the Criminal Code.

[30] For these reasons, Mr. Sappleton’s application is granted and he is ordered released on a recognizance of bail in the amount of $10,000 with his parents named as the sureties. His mother Jaqueline Lawrence is named in the amount of $1,000 and his step-father Lloyd Denton is named in the amount of $9,000. He will abide by the following terms:

(a) Mr. Sappleton shall reside with his sureties at 2999-1610 Jane Street in Toronto;

(b) He is to be in his apartment unit at all times except for a period of up to three hours each day between 1:00 p.m. and 4:00 p.m. If Mr. Sappleton leaves his home during that permitted time period, he must at all times be in the direct company of one of his sureties;

(d) He is not to possess any weapons as defined by the Criminal Code;

(e) He shall, at his own expense, be subject to GPS and Radio Frequency monitoring by Recovery Science Corporation (“RSC”) which shall include entering into RSC’s Participant Agreement and complying with its terms. Mr. Sappleton must wear a GPS ankle bracelet and any other monitoring equipment required by RSC at all times. The ankle bracelet and any other monitoring equipment are to be installed on Mr. Sappleton within 6 hours of his release from custody. Mr. Sappleton will permit RSC to install any equipment needed to monitor his compliance with this bail and will permit RSC to inspect, replace and maintain the equipment as it deems necessary. Mr. Sappleton will cooperate fully with RSC and sign any releases necessary for his sureties to have full access to any information in the possession of RSC;

(f) Prior to Mr. Sappleton leaving his home, one of his sureties must advise Recovery Science Corporation at least 15 minutes prior to leaving of their intention to leave the home with Mr. Sappleton; and

(g) If Mr. Sappleton experiences a medical emergency necessitating his attendance at a hospital, he may leave the home to obtain immediate medical treatment. However, he or one of his sureties must notify RSC of the situation within 12 hours and provide any medical documentation required by RSC to verify the medical emergency.

The Honourable Justice L. Bird

Released: March 26, 2020

R. v. Sappleton, 2020 ONSC 1871

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