R. v. Di Guiseppe, 2008 ONCA 223

CITATION: R. v. Di Guiseppe, 2008 ONCA 223

DATE: 20080402

DOCKET: M36174 (C48514)

COURT OF APPEAL FOR ONTARIO

WATT J.A. (In Chambers)

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

RICCARDO DI GUISEPPE

Applicant (Appellant)

Counsel: Gregory Lafontaine and Joseph Di Luca for the applicant Nick Devlin for the respondent

Heard: March 20, 2008

On appeal from the conviction entered on August 27, 2007 by Justice Tetley of the Ontario Court of Justice, on a motion for bail pending appeal.

ENDORSEMENT

[1] Riccardo Di Guiseppe, a sixty-year old first offender, applies for release pending the determination of his appeal from conviction on a single count of fraud over $5,000. Preliminary to an application of the governing standard, s. 679(3) of the Criminal Code, a brief reprise of the procedural history is of some value.

[2] As a result of a police raid on several business premises, including the adult entertainment establishments, Fantasia and Bunnies, the applicant was charged with several Criminal Code offences. The applicant’s arrest took place in late March, 1999. He was detained in custody for slightly more than two months until released by an order of a judge of the Superior Court of Justice.

[3] As time passed, the criminal proceedings against the applicant atrophied. In the end, the various counts were withdrawn or stayed.

[4] In March, 2001, seven years ago, the applicant was in Florida when notified he had been charged with several offences under the Income Tax Act and Excise Tax Act, as well as under the Criminal Code. These charges were contained in the information on which he was later tried, although the prosecutor withdrew all but the fraud count of which the applicant has now been convicted. The applicant was released on the same day he surrendered to the police.

[5] From time to time, as pre-trial motions and trial proceedings meandered along their somewhat arduous course, the applicant’s judicial interim release order was varied. Prior to the finding of guilt and conviction, the order had settled in as a recognizance in the amount of $250,000 with a named surety and various residence and reporting conditions.

[6] The prosecutor twice sought to revoke the applicant’s judicial interim release order. The first attempt was upon the conviction being recorded, the next, when an application for post-conviction relief failed. Neither application succeeded, although the release terms were varied on each occasion.

[7] On March 19, 2008, nearly seven months after the applicant had been convicted, he was sentenced to a term of imprisonment of six years in a federal penitentiary.

[8] In the result, the applicant has been subject to a judicial interim release order for about seven years. The record is barren of any claims of actual or apprehended breach of the release terms. No attempt to interfere with witnesses. No failures to attend. Nothing.

[9] The pre-trial applications, trial proceedings and applications for post-conviction relief were protracted, to put it charitably. Pre-trial motions began in early 2003, the trial proper on November 14, 2005. The applicant has been represented at different times by half a dozen different lawyers. Briefly, he was unrepresented. Appellate counsel estimate that the trial proceedings devoured about one hundred and thirty days or more of court time.

[10] In this case, which involves an appeal from conviction and in time, no doubt, an application for leave to appeal sentence, the standard to be applied in determining whether to grant release pending determination of the appeal, is established by s. 679(3) of the Criminal Code. It falls to the applicant to establish: 1) that the appeal is not frivolous; 2) that the applicant will surrender himself into custody in accordance with the terms of any release order; and 3) that the applicant’s detention is not necessary in the public interest.

[11] It is common ground that the single issue in controversy concerns the requirement of s. 679(3)(a) that the applicant demonstrate that the appeal is not frivolous. Said somewhat differently, the applicant must show an arguable ground of appeal. It is inadequate to the task to simply recite the grounds of appeal asserted, rather the applicant must produce information about the circumstances that underlie the claims of error, thereby to satisfy the standard erected by s. 679(3)(a). See, R. v. Davison and DeRosie (1974), 20 C.C.C. (2d) 422 at 423 per Brooke J.A.

[12] To discharge the onus imposed by s. 679(3)(a), the applicant relies upon particularized complaints about the form of the count upon which he was ultimately convicted and the basis of liability advanced on behalf of the prosecution.

[13] The pleading complaint was not advanced at trial, a proceeding that does not appear to otherwise have avoided the highly contagious pre-trial motion malaise. At least one, if not both of the defects of which complaint is now made, the use of the term “the public” to describe the victim of the fraud, could be characterized as a defect apparent on the face of the information, hence subject to the requirement of s. 601(1) about the timing of the objection. Appellate success may simply invoke the remedial amendment powers of s. 683(1)(g) if the applicant is correct in his submission.

[14] The second pleading complaint, equally not raised at trial, alleges a breach of the general but not unremitting single transaction rule of s. 581(3). According to the applicant, the single transaction rule cannot comprehend myriad different, distinct transactions of allegedly criminal conduct relating to allegedly fraudulent non-payment of 1) separate and distinct tax liabilities of three corporate entities; 2) for the different tax liabilities, income tax and G.S.T., of each entity; 3) over a different time periods for each entity; 4) on several different occasions within three different fiscal periods; 5) through different modus operandi; and 6) carried out to different stages of execution.

[15] An argument based upon the same principle, violation of the single transaction rule, has achieved appellate success from time to time. So too failure. It cannot be stamped “frivolous” as a matter of course.

[16] The principal ground of appeal to be advanced has to do with the theory of liability put forward by the prosecutor at trial, in particular, whether that theory can, as a matter of law, sustain a conviction for fraud in the absence of any submission of corporate income tax returns to the CCRA and its reliance on their contents as truthful in determining tax payable.

[17] It is not for the applicant to demonstrate certitude of appellate success, only that the particularized grounds of appeal are arguable. That threshold, I am satisfied has been met.

[18] In the result, I am satisfied that the applicant should be released pending the determination of his appeal, on a recognizance with sureties and deposit, subject to strict conditions to ensure compliance and orderly and expeditious progress of preparation of the materials required for the appeal.

“David Watt J.A.”