R. v. Stopanski, 2012 ABQB 691

Court of Queen ’ s Bench of Alberta Citation: R. v. Stopanski, 2012 ABQB 691 Date: 20121123 Docket: 120845714Q1 Registry: Medicine Hat Between: Her Majesty the Queen Respondent - and - Jerrison Herve Stopanski Applicant Restriction on Publication: Judicial Interim Release – See the Criminal Code,

section 517. By Court Order, this decision and the evidence taken, information given or representations made may not be published, broadcast, or transmitted in any manner. NOTE: This decision is available from the court file. It may be published after the accused is discharged after a preliminary inquiry or, if the accused is committed to stand trial, after the end of the trial. Editorial Notices: On behalf of the Government of Alberta personal data identifiers and identifying information have been removed from this unofficial electronic version of the judgment.

This judgment has been released on the Court's direction. The trial ended on August 21, 2014. _______________________________________________________ Reasons on Judicial Interim Release Application of the Honourable Mr. Justice W. A. Tilleman

_______________________________________________________ Introduction [ 1 ] The accused is charged with the murder of Amy Lewis pursuant to ss. 231 and 235 of the Criminal Code , RSC 1985, c C-46. [ 2 ] On October 24 th , 25 th , November 9 th and November 21 st , 2012, I received submissions and evidence, including the oral evidence of three witnesses and six exhibits relative to the applicant’s release, pursuant to ss. 518 and 522 of the Criminal Code . Background [ 3 ] According to the Crown’s evidence, Ms. Lewis’ mother reported her daughter missing on or about June 13, 2012.

Notwithstanding the mother’s best attempts, her daughter Amy, who did not show up for work or other engagements, could not be found. Ms. Lewis’ body has never been located. [ 4 ] The Crown submits that the accused caused Ms. Lewis’ disappearance and death. First, the Crown believes both the accused and Ms. Lewis met over the internet; Ms. Lewis looking for a one-time fling to get her some needed money, and the accused looking to fulfill his desire for sexual experiences. [ 5 ] Second, and to support its case, the Crown points to at least two other women who the accused had sex with, a day or two before he met Ms.

Lewis. The first woman, Ms. E. of Brooks, Alberta, reported her sexual experience with the accused Stopanski (though he used the name “Mike Styles”) [1] was rough: the Jeep where they had sex had handcuffs in it; her hands were tied and he wanted her face down in the door of the Jeep, on the seat. [2] The accused was verbally aggressive and Ms. E. felt she was in trouble as soon as she got into the Jeep. [ 6 ] There was another incident on June 10 th the day before the accused met Ms.

Lewis, and that incident saw another woman report sex with the accused involving aggression, being bound, rough and with handcuffs. On that day, the accused had sex with one of his girlfriends, three times. Actually, he had sex in a short period of time, with several women. [3] [ 7 ] Later, on June 10 th , Ms.

Lewis sent a phone message to the accused, seeking to make some money and eventually offering the accused (then using the email name of Mike Stiles) [4] a massage and oral sex that would happen between them the following night. [5] [ 8 ] The accused, who at the time held himself out as a medical professional [6] , and who later revealed to others he was a prostitute, ironically told Ms. Lewis he would “...never have sex with a prostitute, its dangerous and disgusting.” [7] [ 9 ] Incidentally, in contrast to the evidence given by Ms. E., there is no suggestion - other than innuendo, that Ms.

Lewis had ever done this before. [8] [ 10 ] After their meeting on June 11 th , Ms. Lewis was never seen again. Following some tracing of emails by Ms. Lewis’ mother, the police found the information linking Ms. Lewis’ email to “mike[...]@gmail.com” - the email whose internet protocol traced directly to the accused at his address in Medicine Hat.

[ 11 ] Following the usual neighbourhood inquiries, searches with warrants and otherwise, the police had enough information to do a traffic stop on the accused’s departing Jeep where they also found a laptop and iPhone. The evidence, including blood on the front driver’s seat, steering wheel and seat belt, led police to eventually charge the accused with murder.

Evidence of the Accused [ 12 ] In his police interviews, the accused admitted some involvement with a “Jenny”, that he later changed to Amy, but his story was one of sex with three other men and a woman; he also admitted being a gay prostitute. [9] He further admitted to using a Jeep, and using an account name of “Mike Styles”. He admitted to dressing in women’s clothes. In speaking to police, the accused gave several pages of evidence indicating his sexual involvement with men and a woman Jenny (Amy).

The accused explained the bra and dress that he threw out, by saying it fit him and that he wore it as a cross dresser. [ 13 ] The accused did admit cleaning his Jeep and throwing out the carpet from it, but denied the blood in his Jeep was Ms. Lewis’ blood. The reason for the cleaning, the accused says, is because the Jeep was dirty. [ 14 ] In

summary, and as it relates to the evidence of the Crown linking the accused to Ms. Lewis, the defence argues his client can’t be smart enough to wash the Jeep but dumb enough to not burn it; smart enough to remove Ms. Lewis’ SIM card (and with it, some GPS coordinates) but dumb enough to keep the phone. The Law [ 15 ]

Section 522 of the Criminal Code provides: 522.

(1) Where an accused is charged with an offence listed in

section 469, no court, judge or justice, other than a judge of or a judge presiding in a superior court of criminal jurisdiction for the province in which the accused is so charged, may release the accused before or after the accused has been ordered to stand trial.

(2) Where an accused is charged with an offence listed in

section 469, a judge of or a judge presiding in a superior court of criminal jurisdiction for the province in which the accused is charged shall order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10). (...) [ 16 ] Both sides gave argument and referred to evidence of the primary, secondary and tertiary grounds of section 515(10) of the Criminal Code which provides:

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (

a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (

b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (

i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

Analysis [ 17 ] The accused, who needs to establish that on a balance of probabilities his detention is not justified, argues that none of the three grounds exist to justify his detention.

The argument, essentially, is that the primary ground is not an issue because the accused has always appeared in court when expected; that the secondary ground is not a problem due to the short criminal record of the accused with no prior convictions as serious or likely close to murder; and that the little-used tertiary ground does not apply. [ 18 ] In other words, the defence argues that, on the necessary balance of probabilities, there would be no substantial likelihood that if released, the accused would commit a crime or if released, he would interfere with the administration of justice.

Further, on the tertiary ground, the accused argues that his detention is not necessary to maintain confidence in the administration of justice, having regard to all of the circumstances, including: i. the apparent strength of the prosecutor’s case, ii. the gravity of the offence, iii. the circumstances surrounding the commission of the offence, and iv. essentially, the potential for lengthy imprisonment. [ 19 ] The accused’s counsel argued his client doesn’t have a propensity for violence, or other crimes.

Defence counsel further argues his client, if released into his brother’s care, would comply with all conditions. [ 20 ] On that point, the accused’s counsel tendered the Affidavit of Mr. de Repentigny, brother of the accused. His sworn evidence is as follows: 1. I am the brother of the Applicant in this matter and I have personal knowledge of the matters and facts herein deposed to, except where otherwise stated to be on information and belief, and all of which matters I do verily believe to be true. 2. [...] I carry on an auto wrecking business. I have resided there for 2 years and plan on continuing to do so.

There are 2 houses on the property; one is occupied by myself and my girlfriend, the other is occupied by my mother [...].

3. If my brother is released, I would expect conditions of his release to make his employment in the oilfield difficult. I am willing to employ my brother upon his release and while his charges are pending. 4. I have discussed, in detail, with my family the prospect of my brother, Jerrison Stopanski, living with my mother and sister during his release and we all are in agreement to support him in this way. We are aware that this will involve certain responsibilities. 5.

I am aware that my brother's finances are extremely small and that any money he earns while working for me during his release would assist greatly in providing him with a competent defence. 6. Myself and my family are fully aware of the allegations my brother, Jerrison Stopanski, faces. He has always maintained his innocence to us. 7.

I believe that Jerrison Stopanski respects his mother and myself to the extent that we can maintain a degree of control over his movements upon release and we are willing to do everything within our power to ensure his good behaviour while on release and his attendances in Court when required. 8. I make this Affidavit in support of an application for an Order of Release pending the Trial of my brother, Jerrison Stopanski. [ 21 ] On the stand, Mr. de Repentigny testified that he lives in Whitla - a ghost town - but he and his girlfriend live in a house next to his mother and their 15-year-old sister.

His shop and business, with no employees other than himself, is attached to his house. [ 22 ] Mr. de Repentigny has a good relationship with his brother (the accused), having frequent contact with each other. The accused also is said to have a good relationship with his mother. [ 23 ] In short, Mr. de Repentigny ensures the Court he will keep his brother busy and will help enforce the conditions of release - whatever they are.

Crown ’s Position [ 24 ] The Crown is opposed to the accused’s release mostly on the secondary ground, but the Crown is arguing all three grounds. [ 25 ] The Crown relies on the primary ground due to the changes in residence of the accused, but also because the accused told officers he was going to leave town. [ 26 ] On the secondary ground, the Crown argues the substantial likelihood the accused will commit crimes and interfere with the administration of justice, if released. [ 27 ] The Crown’s concern was due to: (1) a prior record that, albeit short, shows three convictions for assault since 2006; (2) a subject profile with police that shows significant sexual abuse or harassment or brutish involvement with women, sometimes leading to charges, sometimes not; and (3) the destruction of evidence by the accused in this case, e.g. the thorough cleansing of the Jeep, tossing the clothes, dress and other items in the dumpster, and taking the SIM card out of the victim’s (Ms.

Lewis’) phone which was found in his possession. [ 28 ] On the tertiary ground, the Crown submits it has a strong case, the gravity of the offence is without question, the

circumstances are suspicious if not egregious, and the obvious prison term, if convicted, is lengthy. Decision [ 29 ]

Section 522 of the Criminal Code provides that for crimes such as murder, the accused be “...detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10) ”. [ 30 ] The accused has been in jail since mid-June 2012 and several months have passed in which to collect disclosure from the Crown and otherwise lead evidence or file exhibits for the release of the accused. [ 31 ] Indeed, there was evidence called or at least presented on behalf of the accused; however, it focussed almost wholly in the form of his brother’s testimony, who spoke about taking care of the accused if released.

The rest of the evidence including Sgt. Schottner taking the stand [10] and the various exhibits, came from the Crown. Rather than go through the exhibits and attachments or the viva voce evidence piecemeal, I will determine whether on a balance of probabilities, the accused has satisfied the Court in all of the circumstances, that his detention is not justified on any of the three grounds. Primary Ground [ 32 ] The Crown relies on this ground, although not strongly. The accused showed that he has no history of failing to appear in court when expected to do so.

While acknowledging he may have commented to officers on leaving the Medicine Hat area, including his driving away just before being arrested, the evidence shows that the accused’s ties to the community through family and otherwise would keep him in line with his trial appearances notwithstanding the nature of the charge. I also note the lack of evidence in the past to suggest he would flee. On this ground, all things considered, I believe the defence has met its onus.

Secondary Ground [ 33 ] Again, there are two parts to this ground: committing crimes, and interfering with the administration of justice. [ 34 ] For the first part of this ground, I do have concerns because while the defence suggests no prior record of the nature or magnitude of the current offence, I note the convictions on the accused’s record include many assaults, and they are crimes of violence and I note that one is recent. [ 35 ] Though I place less reliance on it, I also note the accused’s police subject profile through almost 10 years (2002 - 2011) in both Saskatchewan and Alberta.

This profile depicts over several pages issues of violence, vulgarity, several domestic fights, uttering threats, sexual abuse and harassment, and weapons. I stress, again, that not all of these events led to charges or convictions, although some did and were for assault. In my mind, the defence’s burden has not been met. The escalating sexual experience clearly includes violence against women.

The accused’s apparent bringing military ordinance including rockets to Court in Saskatchewan shows his propensity for violence and leaves me with concerns that further incidents of some violent kind may occur, if he was released. [ 36 ] I further point to the administration of justice issues. During the bail hearing, the Crown raised significant issues over the critical evidence in the Jeep, or its destruction, that the defence could not explain away.

The throwing away of evidence or repeated washing/spraying or scrubbing in areas where the blood was found matching the victim, lead me to have concerns regarding the suppression of evidence. [ 37 ] To summarize, in this case, there is evidence that the accused is closely linked to a violent crime. It also appears that there were attempts by the accused to destroy evidence. In addition if he were to be released, the accused would be living in an extremely

small community, in fact, it is, according to both counsel, a ghost town of 12 people. [ 38 ] In short, the law requires me to analyse whether detention is necessary for the public’s safety including the substantial likelihood another criminal offence will be committed or administration of justice interfered with. On either part of the secondary ground, the accused did not discharge his burden.

Tertiary Ground [ 39 ] As the law states, I need to focus on maintaining confidence in the administration of justice given all of the circumstances in this case. [ 40 ] To begin, this is a horrendous crime committed in a small community. The best evidence, limited to the parameters of the bail hearing, is that Ms. Lewis was murdered. The accused has several assault convictions and evidence showing his propensity for violence toward women specifically.

Significantly, the forensic evidence linking him to the victim, is very strong. [ 41 ] There are four parts to the tertiary ground, but I need only briefly address the second and fourth parts of the test. As to the gravity of the offence, it is murder.

In addition, for the fourth part, there exists a potential for lengthy imprisonment. [ 42 ] I will therefore focus my attention on the first and third part, on the strength of the Crown’s case, and the circumstances surrounding its case. [ 43 ] In beginning my review of the case’s circumstances, I note as does the Crown, the similarities in this case with R v Cooper , 1999 ABQB 553 , aff’d 2000 ABCA 75 , 286 AR 235. This case, like Cooper , involves circumstantial evidence; in both cases, bodies of the victims were never found. Further, in both cases, blood was found on the accused or linked to the victim.

The defence in this case points out the large quantity of blood in the Cooper case in an attempt to distinguish it from the case at bar. [ 44 ] Of note in Cooper , the accused was detained in spite of no criminal record. In this case, the accused has such a record.

In this case, the victim’s blood was found in the accused’s Jeep. [ 45 ] The Crown’s case is further strengthened by the following forensic analysis: [11] (1) the semen found on a discarded dress later identified as the dress belonging to the victim (identified by a relative with 9/10 probability) [12] was found in the lab to be 1:56 billion as follows: The probability that a randomly selected individual from the Caucasian population unrelated to Jerrison STOPANSKI would coincidentally share the observed DNA profile is estimated to be 1 in 56 billion.

And (2) the DNA samples obtained from the accused’s Jeep seat and steering column where blood was found match the victim in the billions based on this forensic determination: The probability that a randomly selected individual from the Caucasian population unrelated to the source of DNA on the toothbrush would coincidentally share the observed DNA profile is estimated to be 1 in 220 billion. [ 46 ] The circumstances of this case include the following significant pieces of evidence: • the last known communication between the victim and accused, is exactly that - communication linking the victim directly to the

accused on June 11, 2012. Further evidence suggests nobody else was involved that night. [13] • Ms. Lewis’ car was found parked close to the spot her email said it would be - the spot close to where she said she would meet the accused. • even though the accused said he was a cross-dresser, and had sex with other men, it is more likely than not it was the victim’s dress found (with his DNA on it) in the dumpster near the accused’s home. • in the first few days following Ms. Lewis’ disappearance, the accused not only cleans his Jeep, he: (

a) washes it several times, (

b) cleans it with a wire brush, (

c) throws the Jeep carpets out, (

d) sprays undercoating on the inside floor and wheel wells and other inside areas of the Jeep, (

e) both the accused’s girlfriend - and witness Stephen Potterton - saw the accused not just wash his Jeep, but unusually wash his Jeep, (

f) the accused said he saw no blood in the Jeep [14] though it later was there notwithstanding the cleaning he had done, and (

g) there were several other inconsistencies in his statements. [15] [ 47 ] Based on the above, the accused did not meet his bail hearing onus under section 515(10) (

c) of the Criminal Code . Conclusion [ 48 ] Having regard to all of the evidence and all of the circumstances, the accused did not discharge his burden under either the secondary or the tertiary grounds. [ 49 ] Bail is denied. Heard on the 24 th , 25 th days of October and the 9 th and 21 st of November, 2012. Dated at the City of Medicine Hat, Alberta this 23 rd day of November, 2012. W. A. Tilleman J.C.Q.B.A. Appearances: Brandy L. Shaw Agent of the Attorney General for the Respondent Clint Yarshenko

Yarshenko Heidinger for the Applicant [1] Exhibit 2, Tab 3. [2] Exhibit 2, Tab 3. [3] Names and recent encounters include: Stephanie, Candace, Jennifer, Nicole and Michelle. [4] Exhibit 5, p. 1. [5] Exhibit 5, p. 2. [6] The accused at least stated he had an office at the Medical Arts Center in Medicine Hat, Exhibit 5, p. 2. He further told Ms. E. he was a medical examiner from Vancouver. [7] Exhibit 5, p. 3. [8] Exhibit 5, p. 2. [9] Exhibit 2, Tab 11. [10] Sgt. Schottner was one of the two witnesses who updated or gave additional evidence on November 21, 2012. [11] Exhibit 2, Tab 14, p. 2. [12] The relative, Ms.

Strom, initially gave the 9/10 probability. She later changed her story to 60% or better. After cross examination by defence counsel, I believe the probability is slightly lower than 60%. Yet, I still believe it is more likely than not , the dress recovered by police belonged to Ms. Lewis. [13] Sgt. Schottner, who testified twice, and who analysed both phones of the accused and Ms. Lewis, strongly believed the sexual encounter on June 11, 2012 took place between Ms. Lewis and the accused. Sgt.

Schottner is certain nobody else was involved. [14] Exhibit 2, Tab 11. [15] Inconsistencies include: the story of blood in the Jeep, the hard-to-prove story of the sex with the three men, and the story of whose DNA was on the dress.