Court and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20210426 DOCKET: M52353 (C67190)

BETWEEN

Her Majesty the Queen Applicant/Respondent (Respondent)

and

Daniel Castellano Respondent/Applicant (Appellant)

Before: Paciocco J.A. (Motion Judge)

Counsel: Molly Flanagan, for the applicant/respondent Crown Nathan Gorham, for the respondent/applicant Daniel Castellano

Heard: April 23, 2021 by video conference

Endorsement

Overview

[1] Pursuant to s. 679(6) of the Criminal Code, R.S.C. 1985, c. C-46, the Crown applies for an order revoking Coroza J.A.’s bail release order, dated January 29, 2021, which extended the release of the respondent, Daniel Castellano. Mr. Castellano opposes the Crown’s application.

[2] In the event I grant the Crown’s application, Mr. Castellano brings his own application for release pending appeal.

[3] For reasons that follow, I am revoking the bail release order and denying Mr. Castellano’s request for release pending appeal.

Material Facts

[4] On August 13, 2019, Harvison Young J.A. ordered Mr. Castellano released on bail pending his appeal of his April 30, 2019 convictions. Those convictions related to an explosion inside a pickup truck parked at a tractor repair business.

[5] At the time of the explosion, Mr. Castellano was in a dispute with the owner of the tractor repair business. During the execution of a search warrant at Mr. Castellano’s residence, the police found an “arsenal” of weapons, including pipe bombs in various states of manufacture, as well as loaded handguns.

[6] In connection with the explosion in the pickup truck, Mr. Castellano was convicted of mischief to property, two counts of possessing a dangerous weapon, and placing an explosive device in the pickup truck. The discovery of the “arsenal” and the explosives led to his conviction of twelve counts of possession of substances intended to be used to cause an explosion, and three counts of careless storage of a firearm. He was also convicted of possessing stolen property found during the search, and possession of marijuana. Mr. Castellano received a sentence of 1,888 days in custody after credit for pre-trial custody of 142 days.

[7] On May 3, 2019, while awaiting his sentencing, the trial judge revoked Mr. Castellano’s bail. In doing so she relied on her finding that Mr. Castellano had made admissions that at the material time he was “waging a war”. She also relied on Mr. Castellano’s beliefs about the police and a labour union attacking his property as indicative of “some sort of instability” on the part of Mr. Castellano, thereby increasing his risk to the public. Mr. Castellano remained in custody until released pending appeal by Harvison Young J.A.

[8] On several occasions, Harvison Young J.A.’s bail pending appeal order was amended on consent to extend Mr. Castellano’s release, most recently by Coroza J.A. on January 29, 2021, who ordered his bail extended until May 1, 2021. Mr. Castellano’s bail release was uneventful for more than 18 months, until March 28, 2021.

[9] On March 28, 2021, as the result of complaints from neighbours about explosions they believed had occurred in the direction of Mr. Castellano’s property, police officers executed a search warrant on his property. The police discovered and seized ammunition. They also discovered and seized a container of acetone, pipes, and fittings, items police believed were capable of being used in bomb-making.

[10] Mr. Castellano was not present at the time of the search. He later complained to a neighbour that items had been stolen from his property.

[11] When police visited the property again on March 30, 2021 and arrested Mr. Castellano, his vehicle was searched. Mail that did not belong to him and lock-picking kits were found in his possession.

[12] Mr. Castellano has now been charged with: (1) disobeying Coroza J.A.’s bail order by possessing ammunition in breach of the terms of that order, contrary to s. 127 of the Criminal Code; (2) possession of break-in instruments, contrary to s. 351(1) of the Criminal Code (relating to the lock-picking kits); (3) possession of stolen property, contrary to s. 354(1)(a) of the Criminal Code (relating to the mail); (4) theft of mail, contrary to s. 356(1)(a)(i) of the Criminal Code; and (5) possession of an explosive substance with intent, contrary to s. 81(1)(d) of the Criminal Code (collectively, the “new charges”).

[13] All the new charges are either for straight indictable offences, or hybrid offences that are deemed to be indictable offences pending Crown election.

[14] Mr. Castellano has now been released on the new charges pursuant to an Ontario Court of Justice bail release order dated April 21, 2021. The parties agreed that the terms of that order are essentially identical to the terms imposed by Coroza J.A.

[15] Mr. Castellano remains in custody pending the disposition of the applications now before me.

Issues

[16] The Crown brings an application before me pursuant to s. 679(6) of the Criminal Code to revoke Coroza J.A.’s bail release order of January 29, 2021.

[17] Mr. Castellano contests the Crown’s application but applies for bail pending appeal in the event I do revoke Coroza J.A.’s release order.

[18] I will address the two applications in turn.

Analysis

A. The Bail Release Order of Coroza J.A. Is Revoked

[19] By virtue of s. 679(6) of the Criminal Code, s. 524(3) of the Criminal Code is incorporated into the bail pending appeal regime. By virtue of s. 524(3)(b), I am required to cancel Mr. Castellano’s release if I find “there are reasonable grounds to believe that [Mr. Castellano] has committed an indictable offence while being subject to the … release order.”

[20] The Crown may face challenges, identified in the arguments before me, in establishing several, if not all, of the new charges. There are, however, reasonable grounds to believe Mr. Castellano has committed an indictable offence while subject to Coroza J.A.’s release order. I need only refer to the items found in Mr. Castellano’s truck to make the point. The proposed Charter challenge to the search that led to the discovery of those items may prove successful, or Mr. Castellano’s explanations may be credited after trial, but those are trial matters. It is not contested before me that lock-picking kits and mail not belonging to Mr. Castellano, some of which has now been reported stolen, were found in a place that he apparently controlled.

[21] This is enough to require that Coroza J.A.’s order for release be revoked, and I do so.

B. The Application for Bail Pending Appeal is Denied

[22] Although the onus is on Mr. Castellano to demonstrate that he should be released pending appeal, it is convenient to begin with the Crown’s position.

The Crown’s position

[23] The Crown does not contest the finding of Harvison Young J.A. that Mr. Castellano’s appeal is not frivolous. Nor does it dispute that, on the balance of probabilities, Mr. Castellano will surrender himself into custody in accordance with the terms of the order. The contest is about whether he has demonstrated on the balance of probabilities that his detention is not necessary in the public interest.

[24] The Crown contends that, even prior to the new charges, Harvison Young J.A. found it was a “close case” as to whether Mr. Castellano had established that the reviewability interest outweighed the enforceability interest. The Crown argues there have been two material changes which now show that enforceability must predominate.

[25] Most importantly, Mr. Castellano faces new and related charges, which heightens the need to protect the public.

[26] Moreover, a driving consideration in Harvison Young J.A.’s decision was concern that the inherent delay in moving appeals forward could result in Mr. Castellano serving most of his sentence before having had the opportunity to challenge the underlying convictions on appeal. Mr. Castellano acknowledges that he is days away from perfecting his appeal, assuring it can be heard without significant delay.

[27] The Crown submits that the balance has now shifted, requiring Mr. Castellano’s detention pending appeal.

[28] The Crown also points out that the sureties Mr. Castellano proposes were his sureties when the new charges arose. The Crown submits the new charges now call into question the sureties’ ability to assure the public safety.

Mr. Castellano’s position

[29] In support of his application for release pending appeal, Mr. Castellano notes that public safety was the primary concern when he first applied for release pending appeal. He had just been convicted in connection with explosives offences allegedly related to a business dispute, and of being in possession of loaded handguns and bomb-making material at a time when the trial judge believed him to be mentally unstable with paranoid delusions. According to Mr. Castellano, events since then have not aggravated the concern about the risk he poses to public safety; they have lessened it.

[30] Specifically, more than 18 months passed without incident before the new charges. By their nature, Mr. Castellano submits those new charges do not demonstrate an immediate threat of violence to anyone.

[31] Indeed, further investigation has now shown the explosions allegedly heard on Mr. Castellano’s property leading to the search warrant had not, in fact, occurred on his property, but on a neighbour’s land. More importantly, Mr. Castellano says the new charges he faces, especially the charges that might arguably appear to raise the risk of violence, are weak.

[32] The ammunition was found in one of the three buildings on the property, and there are contradictions in the disclosure relating to which of the buildings it was. Mr. Castellano shares access to the property with the three sureties. The inference that he possessed the ammunition is no stronger than the inference that any one of them may have done so, an outcome that will lead to his acquittal unless the strength of the Crown case changes.

[33] Although Mr. Castellano’s post-search complaint about items missing from the property can be used to attempt to link him circumstantially to the acetone, pipes, and fittings, the Crown will be challenged in proving that those items were possessed for the purpose of bomb-making. The acetone was in a quantity suitable for domestic cleaning and was discovered stored with other cleaning products. The pipes are small and thin, and arguably less suitable for bomb-making than larger pipes would be. There are no apparent signs that the items were being used to build an explosive device. The investigating police force has now conceded that an expert witness cannot assert, based on the evidence, that the acetone, pipes, and fittings were possessed for the purpose of bomb-making.

[34] Mr. Castellano has also offered what he submits to be credible, innocent explanations for his possession of the lock-picking kits and the mail that did not belong to him.

[35] In the circumstances, Mr. Castellano submits he has discharged his onus of establishing that he should be released pending appeal on the terms contained in Coroza J.A.’s bail release order. He suggests that if I credit the Crown’s submission that the new charges weaken confidence in the sureties, the order can be augmented by preventing him from being outside his home unless accompanied by one of the sureties, and that an electronic monitoring order can be made.

The enforcement interest outweighs the reviewability interest in this case

[36] Notwithstanding the thoughtful arguments Mr. Castellano advanced before me, in my view, a thoughtful, dispassionate person informed of the circumstances of the case and respectful of society’s fundamental values would conclude that the enforcement interest outweighs the reviewability interest.

[37] First, in my view, the deep concern about public safety arising from the nature of the charges under appeal is now heightened by the new charges. Mr. Castellano’s original release was a “close case” because the nature of the offences, and the circumstances in which he was convicted of those offences, posed a risk to the public of calamitous harm. Mr. Castellano has now been arrested on related offences. I appreciate the weaknesses in the new charges, and that Mr. Castellano is presumed to be innocent of them, but ultimately a bail release determination is an exercise in risk assessment. The discovery of ammunition and potential bomb-making material on property Mr. Castellano has been accessing is a matter that would concern a reasonable member of the public, in all the circumstances. His re-release would imperil public confidence in the administration of justice.

[38] Even leaving the ammunition and bomb-making charges aside, there are reasonable grounds to believe that while on bail release Mr. Castellano possessed break-in instruments in his vehicle, where they could be readily accessed while he was mobile, and stolen mail. I agree with the Crown that the commission of any indictable offence while on bail release for violent offences works to undermine confidence in the public safety by raising the risk that the bail order, which is expected to assure public safety, may not be respected.

[39] Allowing for the fact that it was difficult to assess the strength of Mr. Castellano’s grounds of appeal, Harvison Young J.A. expressed the preliminary view that the grounds of appeal presented before her were not strong. That observation has not been called into question before me. Accordingly, Mr. Castellano is not able to marshal the strength of his appeal as a basis for prioritizing the reviewability concern.

[40] This is no longer a case where detaining Mr. Castellano presents the risk of making the appeal moot on the basis that he would likely serve his sentence pending appeal. The appeal can now be prosecuted without the same concern for delay that influenced Harvison Young J.A. to come down on the side of release.

[41] I agree with the Crown that there are new concerns about the sufficiency of the proposed sureties, given the new charges. Moreover, part of Mr. Castellano’s proposed defence to the ammunition charge as shared before me is that the Crown will be unable to prove whether the ammunition was possessed by him or rather by one of his sureties. This is a legitimate defence for him to advance at his trial, but it does not enhance confidence in his release that either he or his sureties possessed ammunition on property to which he has access.

[42] In the circumstances, even bearing in mind his suggestion that additional conditions could be added, Mr. Castellano has not convinced me that the reviewability interest takes precedence over the enforceability interest.

Conclusion

[43] Mr. Castellano’s bail release is revoked and his application for release pending appeal is denied. The draft orders revoking Mr. Castellano’s bail release and for his arrest that were submitted by the Crown with its application will issue.

“David M. Paciocco J.A.”