Court File and Parties
Court File No.: CR-18-00000064-0000 Date: January 7, 2020
Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Justin Sleeper, Defendant
Counsel: Lee Burgess for the Crown John Wonnacott for the Defendant
Heard: November 22nd, 2019
Reasons Tausendfreund
Overview
[1] The Crown brings this application for an order vacating the release order made by the Justice of the Peace on September 25, 2019 and substituting an order detaining the accused pending disposition of the charges.
Facts
[2] On April 12, 2019, the accused Justin Sleeper (“Sleeper”) was arrested and charged in Peterborough County with two counts of possession of drugs for the purpose of trafficking, possession of a weapon dangerous to the public peace and 6 counts of mischief by firing a paintball gun at passer-by vehicles. He was released on a promise to appear with conditions not to associate with his co-accused and not to possess any weapons, drugs or drug paraphernalia.
[3] On July 13, 2019, Justin Sleeper was charged by the Bancroft OPP with 2 counts of possession of a narcotic for the purpose of trafficking, 1 count of possession of a weapon dangerous to the public peace and 1 count of possession of a firearm with readily accessible ammunition. The police had received information that Sleeper was driving a vehicle with another male and was selling “meth” and speed out of his car. Sleeper was stopped by the police who found a sawed off .410 gauge shot gun under the drivers seat, loaded with a .410 slug. Sleeper had spontaneously uttered, “I know what’s under the seat” and “if you find anything else in that car, it’s mine”. As a result, he was additionally charged with possession of controlled substances under the Controlled Drugs and Substances Act (“CDSA”).
[4] The Crown sought Sleeper’s detention on the secondary and tertiary grounds. Following a contested bail hearing, Sleeper was released on a residential surety recognizance with his mother and his brother Cody as sureties. At the time, Sleeper was a “person of interest” to the police who had information of a “turf war” between Bancroft drug culture participants and those from a rival town.
[5] On August 15, 2019, Bancroft OPP executed a CDSA search warrant at 46 Woodview Lane, Bancroft and on a vehicle that was associated to that address and the accused. The police observed Sleeper leaving that address with his brother Cody in his mother’s vehicle. The OPP located this vehicle five hours later. Sleeper was the driver and Cody the front seat passenger. They were arrested for possession for the purpose of trafficking. In the car, the police located a variety of CDSA drugs, digital scales, drug paraphernalia and packaging material. Sleeper admitted to having smoked methamphetamine.
[6] The OPP had a CDSA warrant for the 46 Woodview Lane property associated to Sleeper. The police found 1.7 grams of methamphetamine, a sawed off .410 shotgun, a 12-gauge shotgun, a 9 mm handgun and six Molotov cocktails. The shotgun had been stolen about five days earlier. Sleeper admitted to having been in the area where that firearm was stolen and had a connection to a building in that location.
[7] As a result of that arrest and the items seized by the police, Sleeper was charged with 21 counts. These included four CDSA counts and a number of firearm related counts under the Criminal Code.
[8] A bail hearing was held September 25th, 2019. The Justice of the Peace advised the Crown that with respect to the Peterborough charges, she only needed to know the number and the nature of the charges, but not the allegations relating to them.
[9] Sleeper proffered two new sureties. One was Alyssa Moore. She was on Ontario Works and received daily methadone treatment in Bancroft for pain issues. She had known the accused for about a year and had been in a short-term relationship with him. Although she did not have a residence of her own, she agreed to supervise Sleeper and reside with him and one Bradley Tully in a house said to be owned by Tully in Denbigh, about a 45-minute drive from Bancroft. Tully stated that he knew Sleeper through his brother who was then in jail. He said that Sleeper and Ms. Moore could reside with him in his home in Denbigh. He was on ODSP and attended an educational program in Northbrook four days a week. There is no public transportation in Denbigh and neither of the sureties owned an automobile. Tully’s father lived a half an hour away and was said to have agreed to drive Sleeper and his two sureties in return for payment of gas expenses. Neither surety was asked, nor did they explain how they might raise the funds they would be required to pledge as sureties, should that become an issue.
[10] The Justice of the Peace released Sleeper on a recognizance of bail of $5000.00 for Sleeper, $1000.00 for Ms. Moore and $3000.00 for Mr. Tully, they as Sleeper’s sureties.
[11] About a month after Sleeper’s release, the OPP obtained certain additional evidence. Cst. Crosby of the Bancroft OPP learned that as of October 29th, 2019 neither Sleeper nor his sureties had ever resided at Tully’s residence in Denbigh. The house appeared clearly uninhabited, as doors and windows were boarded up and hydro not connected. It is unknown to the OPP where Sleeper had been residing but was frequently seen in Bancroft and more specifically at the Woodview Lane property where the CDSA search warrant had been executed on the date of Sleeper’s arrest. Sleeper has now been charged with breach of recognizance for failing to reside at the Denbigh address.
Analysis
[12] Concerning the standard of review under s. 521 of the Criminal Code of a decision made under s. 515(10) of the Criminal Code, a reviewing Justice on such a bail review should exercise his or her power to review a decision of a Justice of the Peace only in three situations:
“(1) Where there is admissible new evidence; (2) where the impugned decision contains an error in law; or (3) where the decision is clearly inappropriate.” [1]
[13] Based on the information obtained by the police following Sleeper’s release on whether he complied with the terms of his recognizance and as detailed above, I find that this evidence in and of itself is sufficient for me to vacate the release order of September 25th, 2019 and order the detention of Sleeper pending the disposition of the charges against him. In the event that I should be incorrect in that assessment, I will continue to address the remaining matters raised by the decision of the Justice of the Peace to have released Sleeper.
[14] I turn initially to what is commonly referred to as the “secondary ground”, as detailed in s. 515(10)(b) of the Criminal Code.
[15] As of the date of Sleeper’s third arrest on August 15, 2019, Sleeper had been unwilling or unable to adhere to and comply with the terms of his prior release of April 12th and July 13th, 2019. In the face of such failure, there should have been some consideration undertaken by the Justice of the Peace whether Sleeper himself could be trusted with any contemplated terms, in the event he were to be released. That did not occur. Additionally, there was no apparent analysis of whether Sleeper would be better assisted by two sureties who had far less connection with him than the family sureties arranged for him at the July 22nd, 2019 initial interim release hearing, an arrangement which appears not to have worked out well. In short, simply replacing sureties in and of itself and absent additional terms, does not raise the level of confidence of the plan that expectations are likely to evolve more positively for the accused than it had in the past. Some analysis in that regard would be expected, in the face of Sleeper’s track record. That, however, did not occur.
[16] As already mentioned, some evidence is expected on the issue of a surety’s ability to raise the amount proffered should that become necessary. There were no such questions put to either of the sureties.
[17] Turning to the tertiary grounds, I note that s. 515(10)(c) speaks to the question of whether “the detention is necessary to maintain confidence in the administration of justice, having regard to all of the circumstances”, not just those that are particularized in the balance of this section of the Criminal Code, such as the apparent strength of the prosecution case, the gravity of the offence, circumstances surrounding the commission of the offence and the length of a potential term of imprisonment, if the accused were to be found guilty on the charges in question.
[18] As already noted, Sleeper is charged with 21 counts following his arrest on August 25th. These include:
- Four counts of possession for the purpose of trafficking under s. 5(2) of the CDSA. Each of those sections upon conviction would make Sleeper liable to life imprisonment.
- Two counts under s. 95 of the Criminal Code of possession of prohibited firearms, which upon conviction would make Sleeper liable to up to 10 years imprisonment with a minimum of three years each.
- One count of possession of a firearm contrary to s. 96(a) of the Criminal Code which upon conviction would make Sleeper liable to 10 years in custody.
- Two counts under s. 88 of the Criminal Code of possession of a weapon dangerous to the public peace, each of which upon conviction would make Sleeper liable to a custodial term of 10 years.
- One count under s. 81(1)(d)(i) of the Criminal Code of possession of an explosive substance which upon conviction would make Sleeper liable to a custodial term of 14 years. These sections bring in to play not only the gravity of the offences, the fact that they pertain to firearms and also that two counts provide for the imprisonment of a minimum punishment of three years, all of which is specifically referenced in s. 515(10)(c) of the Criminal Code. Drugs, guns and explosives were seized. This is real evidence. At the time of his arrest, referring to a loaded sawed-off shotgun under the car seat, Sleeper said to the investigating officers “I know what’s under the seat”.
[19] Despite comment by the Justice of the Peace that there was no evidence of a criminal gang association, the Crown made reference to a possible “turf war” in regard to drugs and the concern of a drug turf war had been admitted without objection at the bail hearing.
[20] Prior to his arrest on August the 15th, 2019, there were the two prior arrests and Sleeper’s release on each of those prior occasions. As stated by the Chief Justice in R v. St-Cloud, supra at para. 72: “… detention under this provision [s. 515(10)(c)] is based on the need to maintain public confidence in the administration of justice…” This means that the justice’s balancing of all the circumstances under s. 515(10)(c) must always be guided by the perspective of the “public”.
[21] The Justice of the Peace stated in her ruling that the Crown had not made out that tertiary grounds applied. I conclude that this statement is an error of law.
[22] An order will go vacating the release order made by the Justice of the Peace on September 25th, 2019 for the accused Justin Sleeper and that the accused be detained in custody pending disposition of the outstanding charges against him.
Tausendfreund, J. Released: January 7th, 2020
