Court Information

Information No.: 15-10000290-01

Ontario Court of Justice

Her Majesty the Queen v. Steven Tello

PUBLICATION BAN: Information contained herein is prohibited from publication pursuant to section 517 of the Criminal Code by order of Justice of the Peace C.M. Shoniker, Ontario Court of Justice.

Ruling

Before: Justice of the Peace C.M. Shoniker

Date: August 18, 2015, at Toronto, Ontario

Appearances

• B. Crackower – Counsel for the Federal Crown
• M. Mirosolin – Counsel for Steven Tello

Table of Contents

PUBLICATION BAN: Information contained herein is prohibited from publication pursuant to section 517 of the Criminal Code by order of Justice of the Peace C.M. Shoniker, Ontario Court of Justice.

Transcript Ordered: August 20, 2015

Transcript Completed: [Not provided]

Ordering Party Notified: [Not provided]

Proceedings

Tuesday, August 18, 2015

STEVEN TELLO: Good morning.

THE COURT: Good morning. And Mr. Tello is now present in the custodial box, and we can continue then with the application for judicial release by Mr. Tello and his counsel.

Today is the fourth day and the Court will give its ruling in relation to Steven Tello's application for judicial interim release.

Ruling

SHONIKER, J. (Orally):

THE COURT: The Court begins by saying these are difficult and complicated legal decisions, and the Court apologizes in advance for the length of its ruling. The Court prefers to use the terms Ruling rather than Judgment as Mr. Steven Tello should know he is in no way being personally judged by this Court.

The Court will deliver its ruling in Five Parts:

• Part 1: The Introduction
• Part 2: A Look at the Legal and Personal Background of Steven Tello and the Charges before the Court
• Part 3: A Consideration of the Primary, Secondary and Tertiary Legal Grounds
• Part 4: A Look at the Plan of Release Proposed by the Defence and an Assessment as to whether or not it sufficiently addresses any Primary, Secondary and or Tertiary Grounds in this present case
• Part 5: The Ruling

In making such an assessment of the plan proposed today by Defence counsel and Mr. Tello, the Court will consider:

• A) the surety proposed
• B) the nature of the plan
• C) the likelihood of adherence to the proposed plan by the defendant, in other words an assessment of risk of re-offence whether it is substantial with this particular accused, surety and this particular plan.

Part 1: Introduction

This bail hearing has proceeded over the course of four days. On two of those four days, evidence was heard by the Court. On the third, submissions and legal argument were presented by Crown and defence. Today, the Court provides its ruling in respect to release or detention at this stage of the proceeding and on the presently proposed Defence plan.

Mr. Alibhai represented the Crown on the previous dates and Ms. Crackower today. Mr. Mirosolin from the office of Richard Posner represents the Defendant Steven Tello.

Exhibits Admitted

Exhibits were admitted into the court for purpose of this bail hearing. The exhibits were as follows:

Exhibit 1: List of Charges for Project Harrington, noting Steven Tello as well as the charges against co-accused Matthew Thomas Fleming, Michael Charles Dibben, Edouard Semmikian, Alyas Rahimi, Michael Costa, Ryan Wedding, Bayron David Figueroa-Escobar

Exhibit 2: Bail Profile for Operation Harrington, submitted by Crown counsel

Exhibit 3: Bail Brief Volume Two for Steven Tello under heading of R. v. Aluta, Fleming, Tello et al., Project Harrington, submitted by Crown counsel

Exhibit 4: Unsealed and uncertified copy of US Indictment against Steven Tello (with Steven spelled as S-T-E-P-H-E-N, rather than our spelling here of S-T-E-V-E-N, on our Information)

Exhibit 5: A Grouping of Financial Documents, financial documents related to the mother of Steven Tello, Ms. Jenny Gonzalez-Tello, as well as Hilda Garcia, the mother of Ms. Jenny Tello and grandmother to Steven Tello, submitted by defence counsel

Exhibit 6: Personal Registry Document regarding the Quebec house owned by mother and grandmother on Marguerite, showing the debt or lien against property, as submitted by Crown counsel

In addition, both Crown and Defence counsel provided the Court with a book of authorities and singularly filed cases. Both Counsels made specific reference to these cases in the course of their submission on legal argument. All the cases were reviewed by this Court in making its determination today.

Crown's Presentation

With the agreement of the Defence, the Crown did not call any viva voce testimony but read in the allegations against Steven Tello. Crown relied upon the bail materials filed with the Court and highlighted different parts of the bail brief and bail profile exhibits. Crown counsel outlined the chronology, transcription of PGP messages, undercover officer notes and memos, Tello's personal profile, known associates, and general information regarding the almost three-year project called Project Harrington.

This police investigation culminated in the arrest of about 15 persons and the seizure of approximately 212 kilograms of cocaine on route to the east coast of Canada from Southern Waters in the former territory. Over the course of the investigation, conversation and planning revolved drugs coming from places such as Venezuela, Colombia and Antigua and the States. The Court has carefully reviewed all of the materials provided by both Crown and Defence for purposes of coming to its decision today.

Defence Witnesses

The Defence called three witnesses:

• First day: Ms. Jenny Gonzalez-Tello, mother of Steven Tello
• Second day: Ms. Gonzalez-Tello was recalled and then Steven Tello, himself; and Mr. Tan, Director of the Recovery Science Program company who presented information about electronic bracelet GPS monitoring

Before moving more substantively into the Judgment and Ruling, the court would remind any readers and listener than on application of the defence, a Publication Ban was ordered pursuant to section 517 of the Criminal Code.

Part 2: Legal and Personal Background

Steven Tello's Charges

Steven Tello is before this Court on charges of:

1. Conspiracy to import schedule I substance, cocaine – offence date October 20th, 2014 through to March 10th, 2015
2. Conspiracy to import schedule I substance, cocaine – offence date February 1st, 2015 through March 10th, 2015
3. Trafficking in schedule I substance, cocaine – offence date February 17th, 2015
4. Conspiracy to import schedule I substance, cocaine – offence date March 10th, 2015 through to April 15th, 2015
5. Trafficking in schedule I substance, cocaine – offence date December 12th, 2014 through to December 11th, 2014 [sic]
6. Conspiracy to import schedule I substance, cocaine – offence date January 8th, 2015 through to March 7th, 2015
7. Possession of proceeds of crime over $5,000 – offence date December 12th, 2014

Steven Tello's Alleged Role

Steven Tello was one of about 15 persons arrested in the culmination of Project Harrington. Project Harrington was an investigation which began in about 2013. It was a multi-police force investigation into large-scale importation of cocaine into the east coast of Canada, primarily Nova Scotia – from other countries and continents, including Colombia, Antigua and Venezuela. It culminated in April 2015 with the arrest of persons, seizure of cash, property and an amount of cocaine in excess of 212 kilograms, was making its way by cargo boat intended for the east coast of Canada.

During the course of this large-scale police investigation, undercover police operative, UC or undercover Joe, referred to sometimes or herein after as UC Joe. He was introduced at different dates and times to different members of the group conspiring to import cocaine. UC Joe made contact with various participants, sometimes in person, but primary through PGP encrypted messaging.

UC Joe presented to the group as a person able to facilitate the transportation of drugs directly or directly from other countries by whatever manner necessary, whether by different types of boat, research, pleasure, private or cargo, or by trucking into Canada through the United States. UC Joe offered his services to the participants for a fee. A second police operative, UC Steve, was located mostly outside of Canada on the foreign side of the operation.

Steven Tello was not the principal target of Operation Harrington at the start of the investigation, nor did he become the principal target as the investigation continued. However Jahanbakhsh Meskhati a.k.a. John was the key focus from the start of the investigation, and was said to be an associate of Tello. Before the police knew anything about Tello, Meshkati had been introduced to UC Joe. UC Joe was in communication with Meshkati versus PGP messaging. UC Joe was going to assist Meshkati with the importation of large quantities of drugs, mostly cocaine, into Canada.

However, in August 2014, Meshkati was killed and the earlier planned importation was not completed. In late October, UC Joe started to receive PGP messages from the handle 101Lock, and the later XMS.480, seemingly continuing the conversation that started with Meshkati before he died. 101Lock and XMS.480 inquired about UC Joe's ability to import cocaine into the east coast of Canada and spoke about his friend John's death.

In late November 2014, UC Joe spoke to XMS.480 about meeting in Toronto. In December, UC Joe met Tello, and through that meeting Tello confirmed to UC Joe that he was both 101Lock and XMS.480. In early January 2015, UC Joe met with Tello in Montreal where Tello introduced him to Matt, later identified as Matthew Thomas Fleming. In a meeting in mid-February 2015, UC Joe met with Steve Tello and Matthew Fleming, and then was also introduced to Michael Charles Dibben and Eduoard Semmikian, a.k.a. Benny and Bassam.

In the excerpts that Crown counsel read out, including transcripts of the PGP text messages exchanged over the course of a couple of months between Tello and UC Joe, Tello seemingly looked after the team: made sure that the different players were keeping in touch with one another; made introductions; looked to get investors to help finance costs of the operation; and even bought a dinner or two for UC Joe when he was there to meet with Tello or somebody else.

Unlike some of the other persons arrested, such as co-accused Fleming and Dibben, Tello, Steven Tello, the person before this court, did not travel to the other countries to deal with representatives of the drug sellers from those other countries. He was not seen to physically handle the drugs or money in payment. Unlike co-accused Fleming, he did not set up any side deals involving firearms.

After Tello's introduction or reference, others made direct contact with UC Joe and the reps from the South However Tello remained aware of the nature of their contact, as indicated by his own messages to UC Joe and the same time frames. In the Crown's submission, Tello was described as "a facilitator" – the guy who got people working together but was not one of the guys on the ground, so to speak.

Status of the Co-accused Regarding their Bail Hearings

Figueroa-Escobar pleads guilty on May 21st, 2015 to trafficking, five kilograms. He received five years less one day. Although he pled guilty to the one transaction, on agreement, the Crown read in the facts to the one-kilogram cocaine transaction as well, or conspiracy as well. I am not sure if it was transaction or conspiracy.

Matthew Fleming received bail in the amount of approximately $400,000, and Michael Costa received a bail of about $1,000,000 with sureties. In the base of both Matthew and Michael, there were at least three sureties for both; and properties were owned by one or more of their sureties, some of the property being located in Ontario.

The information about the others having been granted bail is helpful and relevant information; but of course, legally not determinative of this court's decision for Mr. Tello. This Court was not privy to the kind of evidence heard from potential sureties and the plans proposed for those other accused persons. Also, each person accused with an offence must be considered relative to their unique and particular circumstances on their own application for interim judicial release.

Steven Tello's Personal and Legal Background

This Court has heard that Steven Tello is presently going through a divorce with his wife of about four years – married in 2011. They have one child together. Their daughter is about 20 months old. The matter of their divorce is contentious in regards to property division and Steven's access to his daughter. Their family matter is going through the Family Court system. Both Steven Tello and his spouse, Jennifer Starr-Tello, have family court lawyers. In fact, Mr. Tello's family lawyer was observing in this court on July the 28th, and the wife's family court lawyer was observing on August 12th. The house that they had lived in together has now been sold, and there is legal argument as to the division of assets – what amount, if any, Steven is entitled to for the shared increase in its value. It seems that the wife will be entitled to the bulk of the proceeds as she had owned a house prior their marriage. It was primarily her monies protected with a pre-nuptial agreement that went into the purchase of the matrimonial home.

At Exhibit 2, Tab 2, lawyer Jacob Jensin, writes to Crown Alibhai that his client, Jennifer Tello, does not wish to have any contact with Steven Tello or his family, nor does she wish for him to have any contact with the young daughter, on account of safety concerns due to the nature of the alleged offences, as well as the specific allegations that lead to her husband's arrest. Those are the words used in that letter.

This Court heard that Steven Tello grew up in Quebec and worked odd jobs in Quebec, bartending, contract work et cetera. As a young man after two years of university study, he moved to Toronto only about six years ago. He and his wife lived together and then married about four years ago in 2011. Steven's mother and grandmother continue to reside in Laval, Quebec, but his two brothers and one sister have moved to other places in other countries. In about 2013, he completed the course to get his real estate licence. He began working for ReMax Brokerage in Toronto in 2014. His aunt, his mother's sister, as well as her husband Steven's uncle, have come to court to observe; but no one, other than Steven's mother has come forward to propose themselves as surety. Both aunt and uncle continue to reside in Quebec. The elderly grandmother has also been present for the past three dates and now on today's date of this bail hearing.

Steven Tello's father lives in Colombia. Jeffery, his younger brother, was living and working in the States. Steven's older brother was working as a property manager and living in the Dominican Republic. The family has relatives living in Venezuela, United States, Colombia and Mexico. His sister was living in Venezuela, and working as a diplomat. She and her husband have now returned to Canada, and recently bought property in the Ottawa, Ontario area, where she will be working now for the government.

Steven History with the Criminal Justice System

Steven Tello does not have a criminal record. In 2006, Steven Tello was charged but not convicted of intimidation of a justice system participant, as indicated in the Crown bail brief.

Steven Tello is facing a criminal Indictment from the United States. The Indictment relates to the period from and or about October 2008 to and including January 2014. The Indictment concerns charges of conspiring to violate the narcotics laws of the United States; as part of a conspiracy to distribute a controlled substance, intending and knowing that that substance would be unlawfully imported into the United States or into waters within a distance of 12 miles off the coast of the United States, and that that controlled substance was five kilograms or more of cocaine. That wording I have taken from the Indictment itself.

This Indictment further states that it is the intention of the United States Attorney that Steven Tello shall forfeit to the United States any and all property obtained, directly or indirectly, as a result of the commission and-or if used in the commission of the offence.

In the context of Project Harrington, Steven Tello is known to associate with persons known to the police to have a criminal record and-or involved in the business of trafficking in drugs.

Part 3: Primary, Secondary, Tertiary Ground Considerations

Firstly, Primary Ground Concerns

Primary ground concerns whether, if released, the person will attend court as required to see to the outcome of his or her case, and have it comes to its legal conclusion. In this Court's view, there are Primary ground concerns in considering the release of Steven Tello. The Court has some Primary ground concerns for the following reasons:

Steven Tello's ties to Canada are presently strained. He has lived as an adult way from his family home for about seven years now, living in Ontario while mother and grandmother stayed in Quebec. Steven Tello's marriage appears to be ending. He is presently fighting in a Family Court about a limited amount of money, and ultimately whether and how he will be granted visitation to his baby daughter. Any money for which he is legally entitled to in Ontario may very well be frozen in the near future due to the application for forfeiture by the United States government.

Steven Tello has family connections in various other parts of the world – a father living in Colombia; brother managing a property in Dominican Republic; another brother in the States; his mother owns and rents out a home in Colombia, and has ownership in a second home in Colombia as well as a small bank account there. A sister has just come from Venezuela was family still living there, and a grandmother living in Quebec but with some property ownership also in Colombia.

The charges faced by Steven Tello and the others are extremely serious. If found guilty, Tello and the others know that they are facing a lengthy period of incarceration – perhaps in excess of 10 years, maybe as many as 20 years says the Crown, if convicted of all the offences. Steven Tello's ties to employment are now also at tenuous. He had become a real estate agent in 2013 and was about to complete his first deals in 2014/15 just before his arrest. Steven Tello knows that it is questionable whether or not he will be able to practice as a realtor while these charges are pending against him, even if he is allowed to keep his licence. He told UC Joe in the transcribed messages that the purpose of his becoming a real estate agent was to have the look of legitimate employment.

Steven Tello has travelled extensively in the past, some 23 trips to the airports from 2010 to 2012, about which he was questioned by the Crown. Poor health, marriage, work and reasons unknown, Steven Tello appeared to stop travelling in 2013 and onward. Also Steven Tello said in his bail testimony that when he was spoken to by the RCMP about the U.S. Indictment in about March 2014, he thereafter restricted his travel. Knowing about the U.S. Indictment, Steven Tello chose to avoid airport travel rather than risk having to face the Indictment and charges in the United States. Steven Tello said in his bail testimony that they have the "wrong guy". Steven Tello has dual citizenship with Colombia, and obtained that about a year and a half ago – although married and planning to raise a family with his wife in Toronto.

In the Crown's submissions, the Crown referred to the case of R. v. Pearson, [1992] 3 S.C.R. 665, particularly page 17 Paragraph 62. I am not going to read the entire paragraph, but I will just end where the Crown indicated that the offender involved in drug trafficking poses a significant and different risk from other offenders and a greater risk, in regards to the possibility that somebody will abscond rather than face trial.

What the Court has outlined are the reasons for Primary Ground concerns relating to Steven Tello's bail application. These Primary Ground concerns would ultimately need to be adequately and reasonably addressed by any bail plan for Mr. Tello's release.

Secondary Ground Concerns

The Secondary Ground concerns is whether there is a substantial likelihood that if released the person is likely to breach the conditions of the release and-or get into new other criminal activity. In this Court's view, as is appreciated by both Crown and defence, there are Secondary Ground concerns when considering Steven Tello's release for the following reasons:

The allegations blend communication and activity about drug trafficking since the commencement of the investigation in 2013 until April 2015; although the Court does make note that Steven Tello came into the conversation only in about the last seven months. Steven Tello was a known associate of a number of persons who were investigated and ultimately charged. The Court, however, takes note that Steven Tello was not a main target of the investigation, and from what the Court heard, never became a main target. In fact, Tello does not, himself, become part of the conversation with UC Operative Joe until about October 2014, after the target, a person known to Steven Tello, was killed. Steven Tello then makes introductions between UC Joe and others, such as Matthew Fleming, Bassam, Dibben. After introduction by Tello to UC Joe, conversations and activities then continue between UC Joe and the others directly. In the bail materials, Steven Tello is said to give a reference so that another person, I believe Matthew Fleming, could be trusted when he was south talking to a representative for the drug sellers.

In Steven Tello's testimony on this bail hearing, he talked about being in the business of sales all of his life, with all kinds of products. Most recently, it seems real estate and, allegedly the subject of these charges – cocaine were his products of choice; but these are, at this point, allegations. In Steven Tello's bail testimony, he said that he was a "team builder", and that is what he was "good at".

Steven Tello, by his own admission, knew of the US Indictment and seemed to be doing what he could to avoid the legal consequence of this Indictment for him. Tello was already planning, in his conversations with UC Joe in December 2014 and February 2015, to take a one-way trip without his wife and daughter to Colombia, suggesting he could work things from there. Tello's statement to UC Joe – he just wanted to make as much money for his wife and his daughter before the left as he could.

As the Crown counsel said in his submissions, a person does not get into the business of high-level drug trafficking in a day, and does not get out of this type of business in a day. It can take months, sometimes years, to be trusted, and any breach of trust can be fatal. Again, the Crown referred in their submissions to R. v. Pearson, [1992] 3 S.C.R. 665, page 17, paragraph 61. As a Crown said, disengaging from an enterprise can be especially difficult when people within the enterprise might feel that you owe them, whether it's your allegiance, money or product.

Two-hundred and twelve kilograms of cocaine was seized by the police at the end of their investigation. Because of that, someone may now feel that they are owed, whether by Tello or others.

The above points provide reason for having Secondary Ground concerns relating to a release for Steven Tello. These types of concerns would need to be adequately and reasonably addressed by any bail release for Mr. Tello.

Tertiary Ground Concerns

When we speak of the Tertiary grounds, the Court considers whether it is necessary to detain in order to maintain confidence in the administration of justice. A number of factors are considered including, but not limited to, the gravity of the offence, whether if found guilty, there is a lengthy period of incarceration, the particular allegations and their severity, including whether a firearm was involved, the accused and the surrounding circumstances, and the strength of the Crown's case against the accused.

The Court is of the view that there are Tertiary ground concerns in this case for the following reasons:

First: Gravity, Nature of the Offence and Surrounding Circumstances

Steven Tello is alleged to be involved, at some level, with the conspiracy in trafficking in large quantities of cocaine into the east coast of Canada through southern waters and from other countries allegedly Colombia, Venezuela and Antigua. Ultimately a ship with about 212 kilograms of cocaine was seized, an amount having a market value of about $10 million and its street value exceedingly more. The Court has heard that in the course of the three-year investigation the prime target and friend of Tello, was murdered in 2014. An investor known to Tello was killed. One of the co-accused made a side deal of firearms trafficking. The charges against Steven Tello and the others involved four conspiracies, and even larger amounts than 212 kilograms were discussed, for their movement into Canada from the other countries.

At this large a scale, for the participants in the trade the stakes are high, the risks are great, and unhappy results can mean death or jail. Undercover operatives literally risked their lives during the course of this investigation. It goes without saying that with such large scale drug trafficking, there is a huge impact and risk to many people, whether it is a physical and financial risk to those who participate in the business, the addiction and illnesses of its users, the increased criminality in our cities that leads to the destruction of individual lives and their families. Thousands and thousands of innocent babies are born every year addicted to cocaine.

Second: The Potential for a Lengthy Jail Sentence

It goes without saying that any participant in such an enterprise risks a lengthy period of incarceration if there is a finding of guilt. One of the co-accused, Figueroa-Escobar, is already plead guilty in relation to the charges of trafficking five kilograms and one kilogram of cocaine. He pled guilty to the one and accepted facts on the other were read in. He received a sentence of five years less one day, and he was not charged in relation to the larger amount of 212 kilograms.

Third: Strength of the Crown's Case

As the Crown has pointed out and as the Defence has recognized, the Crown case appears to be strong. The use of undercover operatives, like UC Joe and UC Steve, allowed for conversations with Tello and others, both in person and by PGP messaging This means that such conversations are not complicated by the laws concerning interception. As the Crown indicates, there is a correlation and consistency between the PGP messages described, external events taking place, memo notes of the undercover officer, even with some of the things said by Mr. Tello in the context of his bail testimony. The Defence indicates that they may raise issues of entrapment and abandonment as triable issues.

Although the Crown indicates that nothing is ever certain when matters proceed to trial, the evidence against Tello is strengthened because it does not wholly rely on recollection or reliability of witness; nor is it subject seemingly to Charter challenge at all or as easily because of the use of operatives for the conversations. The roll of Steven Tello will be primarily be based, it seems, on what Steven Tello himself said to the undercover operatives as well as to the other witnesses.

Nonetheless, even where the strength of the Crown's case appears to be strong, the Court recognizes that the starting point is always the presumption of innocence. Each and every person is presumed to be entitled to a reasonable bail, even where there is a reverse onus as in the present charges of trafficking and conspiracy to traffic.

Although there are some cases where the concern under the Tertiary ground is so strong that a Court will consider detention, even where a release plan might otherwise adequately address the primary and secondary ground concerns, in the case of Mr. Tello and the Court's level of concern under the Tertiary ground, this is not such a case. The other, perhaps, are the rarest of cases where to release the offender would have the public lose confidence and bring the administration of justice into disrepute.

Although the case of Mr. Tello and its level of concern under the Tertiary ground is not such a case, the present case does mandate an exceptionally strong plan for release in order to address the Tertiary as well as the other two areas of concern.

Part 4: Proposed Plan of Release by the Defence

THE COURT: I know that I am going to interrupt, saying to both sides, the time right now is approaching one o'clock. It's probably a good idea at this point to take the lunch recess. We will come back for the continuation of the Judgment. It's not going to be done before the lunch recess. It doesn't make sense to rush it. I do appreciate that Defence Counsel had the other matter today – both the reason for which we start later, and then further adjourned the start of the proceedings. It does not make sense to try and rush this. It is not going to be complete before lunch recess unless we go straight through, which makes no sense. So we'll adjourn now. What's a good time for persons to come back? Crown Defence, any preference in regards to the length of the lunch recess?

MR. MIROSOLIN: My only concern at this point Your Worship, is I do have to be at the airport?

THE COURT: What time, sir?

MR. MIROSOLIN: Not until five o'clock.

THE COURT: So say, 2:15 then?

MS. CRACKOWER: That's fine. Thank you.

COURTROOM CLERK: All rise.

RECESS

UPON RESUMING:

COURTROOM CLERK: Court's in session.

MR. MIROSOLIN: Good afternoon, Your Worship.

THE COURT: Good afternoon.

MR. MIROSOLIN: You'll note that Mr. Tello's not yet with us.

THE COURT: Officer, Mr. Tello is back in the courtroom now and the court will continue with the ruling.

We left off at Part Three of the ruling – Proposed Plan of Release by Defence:

The plan proposed by Mr. Mirosolin on behalf of his client is essentially a house arrest with one surety for Steven Tello, who is his mother, Jenny Gonzalvez-Tello. The surety is for an amount of perhaps about $100,000 or something less, without deposit, and with the use of electronic bracelet monitoring. The Court will look at the surety proposed, the plan itself and the risk assessment with this particular accused for this particular plan.

The Surety

At the present time the Defence proposed just one surety who is the mother of Steven Tello. Although other members of the family have been spoken about or have been present during part or all of these proceedings, they have not come forward to assist as sureties for bail. The Court therefore must consider whether the mother, acting as a surety by herself, would be the appropriate surety.

Ms. Jenny Gonzalvez-Tello seems to be a lovely and well-meaning lady who cares deeply for her son, Steven Tello. In her testimony, Ms. Jenny Gonzalvez indicated that she has serious health concerns such that she has not been able to work since 2009, due to a disability caused by a car accident. She receives monthly government assistance for her disability. She advised the Court on the first date of her testimony that her financial situation was so limited that her sister would be helping her with the approximate $600 monthly cost of electronic bracelet monitoring; and, I would assume that the sister might help her also with the approximate $1,000 cost per day for court appearances for purposes of this bail hearing – that's the cost to the Recovery Science program.

On the first date of the bail hearing, Ms. Jenny Gonzalez-Tello indicated that she owned a home in Quebec as well as other information including RRSPs in the amount of $3,000, as well as monies in trust for her coming from the sale of Steven and his wife's home, since she had loaned them money when they first bought that home.

On the second day of the bail hearing under cross-examination by the Prosecutor, that information was clarified. The Court now understands the following: Ms. Jennifer Gonzalvez-Tello is actually half-owner rather than full owner of the home in Quebec on Marguerite. Her mother, Steven's grandmother, owns the other half of that home, and the bank has one or more secured lines of credit against this property.

Prior to the commencement of the bail hearing, Ms. Jenny Gonzalvez-Tello had her brother-in-law give her back monies in the amount of $35,000 for a loan she gave her son Brian and daughter-in-law years ago to buy a house. This $35,000 was deposited into her account shortly before the commencement of the bail hearing although not mentioned on the first date of her testimony.

On the third day of the bail hearing when she was re-called to the stand in regards to financial documents, Ms. Jenny Gonzalvez-Tello presented a document purporting to be a power of attorney from her mother to herself. This document stated that Ms. Garcia was granting her daughter Jenny Gonzalvez-Tello the right of decision and proprietary interests over Ms. Garcia's half-ownership in her home for "the purpose of obtaining bail for her grandson, Steven Tello." It was that wording that was used on the document purporting to be a power of attorney. This document calling itself a power of attorney does not indicate what will happen potentially after bail is obtained; nor does it indicate that the grandmother, Ms. Garcia, was afforded an opportunity for independent legal advice, as is normally indicated on such a document. The Grandmother, Ms. Garcia, has been present and observing from the start of this proceeding, but on the third day the court learned that Ms. Garcia does not speak English and there was no Spanish speaking interpreter in the courtroom. Ms. Garcia was relying on the interpretation by the family to her outside of the courtroom, perhaps at lunch or at the end of the day.

Further on Ms. Jenny Gonzalvez-Tello's recall to the witness stand, we learned that Ms. Jenny Gonzalvez was the owner and part-owner of two properties in Colombia; that there was an additional bank account in Colombia; and a small amount of savings with SunLife.

Unfortunately and through no fault of her own, the financial situation of Ms. Jenny Gonzalvez is unclear for the above reasons, and makes any legal enforcement, if it becomes necessary, very difficult. Ms. Gonzalvez-Tello might have a clear interest in the property outside of Ontario, in Colombia, for which she was dual citizenship.

Unfortunately and through no fault of her own, Ms. Jenny Gonzalvez-Tello's situation is further complicated by the fact that the US government is potentially making claim to any monies or property interests of Steven Tello, and against those known to or have received from him; which makes any monies presently being held for him on the sale of the matrimonial home, subject to future later claim by the US government.

Unfortunately, the present surety plan for Mr. Steven Tello is not financially and otherwise supported by anyone else from his professional, social or family circles, not even by those who have physically come into the Court to observe the proceeding. The Crown has raised the argument that Steven's mother does not, in their view, have the necessary degree of knowledge and command over Steven Tello, particularly in the past number of years. The Crown drew attention to the fact, for instance, that between 2010 and 2012 Steven Tello had travelled some 23 times through the airport according to the airport logs, but she unaware of the nature and extent of his travels, that she had no familiarity with his associates and friends, beside his wife, going back to high school in Laval, Quebec.

In this Court's view, the surety-accused relationship is best when it overlays a relationship where the subject has some level of care and respect for the surety, but where the surety has some level of detachment and objectivity; and the subject has a healthy dose of fear of consequence or reprisal from the surety because of that objectivity and degree of detachment.

Even in the face of all the allegations as read out by the Crown, Ms. Jenny Gonzalvez-Tello said that she was, "willing to stay in Toronto until Steven was cleared of all the charges." Ms. Jenny Gonzalvez-Tello cannot be faulted for trying to do everything within her power and in her own way to try and help her son, but she does not have the objectivity and the necessary degree of detachment to act as the residential single surety.

The Plan Proposed by the Defence for Tello

The Court has addressed the part of the plan with surety and supervision by his mother. The Court will next address the other major part of the proposed plan – that of monitoring by electronic bracelet with the assistance of the Recovery Science company.

The Court accepts that in some cases, electronic monitoring can assist the courts in motivating compliance by an accused with their bail condition while awaiting trial. This Court very much respects Mr. Tan's testimony, as he made every effort to be frank, fully informative and forthright. As Mr. Tan indicated, the use of electronic monitoring devices certainly does not prevent breaches. The alert system in place with electronic monitoring only provides information of a possible breach after the fact, and for many people, it does not act as a deterrent.

As Mr. Tan said in his testimony, the extent to which the electronic monitoring, "acts as a deterrent", will depend on the nature of the person, their charges, and their situation. Mr. Tan drew the analogy that a red light, even when it is late at night and where there is no other traffic about, would act as a deterrent for some people – perhaps depending on the personality of the person or the particular circumstances of their travel. Mr. Tan said that the electronic monitoring bracelet works more or less as a deterrent. He talked honestly about where the device is limited, for example: by satellite transmissions, such as undergrounds or subways; by the delayed notification for prolonged period where there is a loss of signal; by the time it takes after a potential breach where the tamper alert is first monitored by staff at the east end centre, then notification to the Recovery Science program, and then the response investigation along with a phone and or e-mail contact sometimes to a surety, and thereafter a call, if felt necessary, to the police.

In the present case, the Crown argued that the temptation for Steven Tello to leave and avoid process in Canada and the States will be strong. The Crown stated in their submissions that technology did not bring the accused persons, including Tello, before the Court. As the Crown pointed out in the bail briefs, Tello and his associates were already using off-shore servers, PGP device messaging due to its encryption, jammers so as to block transmission interception. As the Crown said, devices did not bring Steven Tello and the others before the court system, live people did – undercover officers did.

In certain cases, perhaps a restricted number of cases, such a device will neither deter nor motivate compliance. In the Court's view, this is such a case. The electronic monitoring would not have been enough for the co-accused persons who were released on bail without their having had a number of sureties pledging significant amounts and prepared to assist as a group in the bail monitoring of those other accused persons. The electronic bracelet does not replace the need for an appropriate surety or sureties, nor does it make appropriate an inappropriate surety plan, where the plan of surety is not enough.

Part 5: The Ruling

In accordance with the Canadian Charter of Rights and Freedoms, every one, no matter whom they are and what they are accused of doing, is entitled to the presumption of innocence and a reasonable bail. That bail release in its form must reasonably address the concerns of the Primary, Secondary and Tertiary grounds. Mr. Steven Tello is entitled to that kind of consideration despite the gravity of his alleged offences. However, the current release plan proposed by the Defence for Mr. Tello is deficient and does not adequately address the Court's concerns.

In his testimony, Steven Tello presented as an articulate, intelligent and personably young man in his young 30s. Yet, for the above concerns, some not of his own making, the Court finds that there would be a substantial likelihood of re-offence if released on the present plan. Mr. Tello's Defence team can assist him in moving forward in his efforts for bail at the Superior Court when the time and proposed plan is right for him.

I sincerely hope for Mr. Tello's sake that he soon finds a workable plan for release or the expeditious resolution of these matters. This is a difficult chapter in his life but it does not have to be his whole story.

And that is the Ruling of this Court.

I have indicated as an attachment to the Ruling that the Court will order the first copy of the transcript – in case Defence counsel has a need for further use of it.

MR. MIROSOLIN: Thank you.

Cases Cited

The cases already cited:

• R. v. Evans
• Attorney General of Canada on behalf of the United States v. Jo Van Lo
• R. v. Colaco
• Parent v. Campbell
• R. v. Martin
• R. v. Fleming
• R. v. Pearson
• R. v. Whervin
• R. v. Bahman
• R. v. John Neal
• R. v. Lorne Campbell
• R. v. Dronjak
• R. v. St-Cloud
• R. v. Dang
• R. v. Russo
• R. v. Hall
• R. v. Anguelov
• R. v. Barlow

Those are the cases that were cited by Crown and by Defence, and reviewed by the Court for purposes of this Ruling.

Orders and Return Date

That being said, is there any orders being sought by Crown and or defence at this time?

MR. MIROSOLIN: Nothing beyond what I've already requested you and you have already ordered Your Worship.

THE COURT: All right. All right, Crown?

MS. CRACKOWER: Is there already an order that he not communicate with his spouse?

THE COURT: No, there was not that order, nor will the Court make that order. The spouses, both Mr. Tello and his wife, are represented by Family Court lawyers, who I indicated, were physically present and well aware of the proceedings and what's going on in the proceedings. If there is a wish for that, the Family Court perhaps can address that. I assume that the Counsel are going to be talking to one another as to what's to happen, I think Mr. Tello and his team are going to be working further on his own situation and perhaps it will evolve further.

But, there will be an Order and there was already the Order of non-communication in respect to his co-accused. That Order will be placed – that while detained and pending any further application for bail by way of bail review and until such other order of the Court, there will be an Order for non-communication with the co-accused. And there is a list of co-accused; perhaps Madam Crown can help me out with that to assist the Court Clerk. I have a copy of the Information. Do you want me to simply refer and pass that to the court clerk?

MS. CRACKOWER: Sure, that would be helpful, thank you. Yes.

THE COURT: All right, return date please?

MS. CRACKOWER: There's already been a Judicial Pretrial scheduled for this matter on September the 9th at 9:00, I believe. Mr. Tello will return on that date and then of course counsel attend at that JPT.

MR. MIROSOLIN: Did my friend say September the 9th?

MS. CRACKOWER: Yes.

MR. MIROSOLIN: That's fine. That's agreeable.

THE COURT: Is that a joint JPT, a judicial pre-trial?

MS. CRACKOWER: Yes.

THE COURT: All right, and who is he joining with that day?

MS. CRACKOWER: Mr. Costa, Mr. Elouta, Mr. Fleming, Mr. Dibben hasn't yet gone over to that date, but that's what's anticipated.

THE COURT: There are a number of persons that are still in custody, Mr. Semmikian, I guess? Mr. Dibben? I'm looking at the officer who's involved in the case, looking for a nod if you hear a name. Is Semmikian in custody?

MS. CRACKOWER: He was released.

THE COURT: All right. Dibben?

MS. CRACKOWER: Dibben is in custody, has not had a bail hearing.

THE COURT: Elouta? All right, and I know about Costa and all about Fleming. All right, so those other persons are also for a judicial pre-trial on September the 9th at 9:00 a.m.

MR. MIROSOLIN: At nine o'clock.

THE COURT: All right. This matter will be returnable – which Court and what time?

MR. MIROSOLIN: Usually 114.

MS. CRACKOWER: It will be 114; if Mr. Tello wants to appear by video – that would be agreeable to the Crown.

MR. MIROSOLIN: I wonder if I could have a moment. Mr. Tello wishes to come in person. Thank you.

THE COURT: All right.

MR. MIROSOLIN: Which I think is probably appropriate bearing in mind it's a judicial pre-trial.

THE COURT: Expeditious matter, resolution to these matters. The matter will return on September the 9th, 2015. It's returnable in 114. It's in person, and I believe the time of that court is 10:00 a.m. That will be after the judicial pre-trial that morning with other counsel, other co-accused, and that being set for 9:00 a.m. on that morning. All right, I'll sign those papers, and I'm going to stay put for a few minutes. Other persons can be excused.

MS. CRACKOWER: Thank you, Your Worship.

THE COURT: Thank you.

MS. CRACKOWER: Thank you, Your Worship.

THE COURT: Thank you.

MATTER ADJOURNED

Certificate of Transcript

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act