WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 517(1) of the Criminal Code. This subsection and subsection 517(2) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

517. ORDER DIRECTING MATTERS NOT TO BE PUBLISHED FOR SPECIFIED PERIOD

(1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

(2) FAILURE TO COMPLY

Everyone who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2019-12-27

Court File No.: Brampton 19-40058; 19-39947; 19-40024

Between:

Her Majesty the Queen

— AND —

Raffaele Simonelli and Michael Simonelli

Before: Justice A. R. Mackay

Heard on: December 24, 2019

Reasons for Judgment released on: December 27, 2019

Counsel

• R. Levan — counsel for the Crown
• S. Shikhman — counsel as agent for Raffaele Simonelli
• R. Fedorowicz — counsel for Michael Simonelli

Decision

MACKAY J.:

Introduction

[1] The following is my decision with respect to an application for bail for Raffaele Simonelli and Michael Simonelli. Both men are charged with a number of offences related to an illegal gaming and betting operation. The more serious offences for which they are charged with, however, involve a firearm. In Michael Simonelli's case, it is one firearm; for Raffaele Simonelli, it is two firearms. The accused are jointly charged with the following sections of the Criminal Code in relation to the possession of a firearm from July 31st, 2019: s. 90(1), s. 91(1), s. 92(1), s. 95(1), s. 96(1), and s. 108(1)(b).

[2] Both accused are charged with the following Criminal Code offences in relation to the illegal gaming and betting operation between the time period of October 20, 2013 to December 12, 2019: that they had a sum of money under their control related to s. 202(1)(e), contrary to s. 202(1)(c); they did unlawfully record a bet, to wit: Online Sports Book, contrary to s. 202(1)(d); engaged in bookmaking and did make an agreement for the purchase or sale of betting or gambling privileges for Online Sports Book, contrary to s. 202(1)(e). Finally, during the time period between October 20, 2019 to December 12, 2019 both accused are charged with committing the indictable offence of bookmaking for the benefit of a criminal organization, contrary to s. 486(7.12) of the Criminal Code.

[3] Michael Simonelli is also charged in relation to July 31st, 2019 as being an occupant in a motor vehicle in which he knew there was a firearm, contrary to s. 94(1) of the Code. Arising from the same date, Raffaele Simonelli is further charged with the transfer of a firearm to Michael Simonelli without lawful authority, contrary to s. 101, and with the transferring the firearm knowing that he was not authorized to do so, contrary to s. 99(1)(a) of the Code.

[4] With respect to the search of Raffaele Simonelli's home and vehicle on December 12, 2019, he is also charged with possession of a handgun without being the holder of a licence, contrary to s. 91(1), possession of a restricted firearm without a license contrary to s. 91(2) of the Code. He is also charged with possession of a loaded prohibited firearm, contrary to s. 95(a) of the Code, possession of a prohibited device, a taser, knowing that it was obtained by the commission of an offence, contrary to s. 96(a) of the Code, possession of proceeds of property, contrary to s. 354(1)(a) of the Code, and possession of a firearm knowing that it was obtained by the commission of an offence, contrary to s. 96(a) of the Code.

Facts

[5] The allegations with respect to the accused's involvement in an illegal gaming operation is quite lengthy and I do not propose to recite them here. The summary mostly involved wiretap evidence of Raffaele Simonelli talking about issues related to employees, partners, gambling floats, and issues with primary operators of the organization.

[6] Briefly, the charges arise as a result of police investigation which uncovered an online bookmaking operation. Police first focused on a website known as 'Piravada'. It is a site that uses an internet-based host to enable illegal betting on sporting events. Various organizations used this web-site and other gambling sites. The organization for which the accused are believed to be members, had a pyramidal structure. Some individuals, not the accused before the Court, have been identified as members of the upper echelon and primary operators. Raffaele Simonelli is alleged to have acted as an agent, bookmaker, money collector, and a manager of a gaming house in Mississauga. Michael Simonelli has also been implicated as an agent for the primary operators, a bookmaker, and a money collector. From the allegations I have read, he did not have much involvement in the day-to-day running of the gaming house in Mississauga.

[7] Judicial authorizations allowed the police to place cameras inside and outside the gaming house. Cameras captured evidence about the movement of money, and in some cases captured members of the organization accessing the betting websites. A tablet was captured by the camera and it was later seized and accessed by the police. The information allowed the police to determine when certain people were accessing or logging into the illegal gaming servers.

[8] From March 2019 until September 2019, Michael Simonelli was captured on the camera approximately ten times using the tablet at the exact same time data from the tablet showed that someone accessed an agent's account and reported on the weekly balances from one of the targeted websites. During the same time period, Raffaele Simonelli was captured approximately six times on the camera in the same fashion and was believed to have been accessing an agent account and reporting on the weekly balances. Individuals involved in this organization were also members of a similar illegal gambling organization that was taken down by police in 2013. It is believed that there had been some carry-over from the first organization to the present one.

[9] Over the course of the investigation, police have determined that a violent struggle has been taking place over the control of organized illicit bookmaking in and around the GTA. The Crown read in several violent instances that occurred in the GTA over the past year. These included a murder, shootings, and an arson. To be clear, however, there is absolutely no evidence that the defendants had any connection to these crimes. However, some of the associates linked to the Piravada website, which include two Hells Angels members, are known associates of some of the victims, one of which was also a Hells Angels member. It is also believed that the machines used in the gaming house were loaned to the Raffaele and his associates by a known mafia boss and essentially a percentage of their proceeds was then forwarded to the upper echelons of that organization.

[10] Over the course of the investigation, there was some evidence that Michael Simonelli was involved in collecting for a debt for the gambling business. He is heard on a wiretap saying to a person on the phone if he did not pay his debt, others would kick his door down. There was reference to the debt being outstanding for several months.

The Firearms Charges

[11] On July 31st, 2019, the camera inside the gambling establishment showed Raffaele Simonelli taking a firearm from his ceiling. The gun is later taken out in a Kleenex box by Michael Simonelli and placed in the back of his SUV. Police broke into his vehicle while Michael Simonelli was in the mall. There is no question that the weapon was a gun with a loaded magazine. Police did not arrest at this point and instead continued with their investigation.

[12] On December the 12th, 2019, police executed a search warrant on Raffaele Simonelli's home. Inside the residence they located two tasers. One was found in the nightstand in the master bedroom, the second was in the spare room. A search of his vehicle on the same day resulted in police finding a firearm with a loaded magazine. It was located inside a hidden compartment in the glove box of his vehicle.

Criminal History

[13] The criminal records of the defendants are not substantial and are dated. Raffaele Simonelli has two convictions, one from 1992 for possession of stolen property, and a second in 1995 for break-in and enter where he received 45 days jail. Therefore, he has had no convictions for 24 years. Michael Simonelli has just one prior conviction for refuse to provide a breath sample in 2013.

Plan of Release – Raffaele Simonelli

[14] Turning to the proposed plan and the sureties, the only surety proposed for Raffaele Simonelli is his brother-in-law, Martin Campbell. He has been married to Raffaele Simonelli's sister for 21 years. He advised that the defendant's mother passed away and his father is ill, he had an emergency bypass surgery a year ago. As a result, Mr. Campbell attended to be his surety. I did not hear as to why his sister did not attend.

[15] In any event, Mr. Campbell advised that he and his wife are prepared to have the defendant and his partner reside with him and his child. He will supervise Raffaele Simonelli under house arrest. Mr. Campbell was shocked to hear about Raffaele Simonelli's involvement in handling a gun and in the online bookmaking operation and the gambling establishment. He was also not aware that Raffaele Simonelli was attempting to become a full-fledged Hells Angels member. Rather, he believed the defendant was in the paving business.

[16] Mr. Campbell is a retired TTC employee and a retired Armed Forces Officer. He confirmed that the defendant has a 16-year-old son who lives with the defendant on a part-time basis. Raffaele Simonelli is apparently very involved in his son's life. Despite being aware of the strength of the allegations, Mr. Campbell is prepared to pledge his savings to secure the defendant's release under his supervision. Mr. Campbell is for the most part at home during the day and evening. He has an online business that he operates from his house. He stated that he will make sure the defendant complies with house arrest and he does not use the internet. Mr. Campbell would not hesitate to contact police if the Raffaele breached a term of his release.

Plan of Release – Michael Simonelli

[17] Turning to the proposed plan for Michael Simonelli, Marilyn Nicholson is the proposed surety and is the mother of the defendant's fiancée. Her daughter and Michael Simonelli have a two-year-old son. In addition, her daughter has two children from another relationship, a 14-year-old and a 9-year-old. Ms. Nicholson is a retired. She had worked for the city for approximately 35 years. She resides in Etobicoke and owns her own home. Miss Nicholson is prepared, however, to move in with the defendant and her daughter until these charges are dealt with to supervise Michael Simonelli while he is on release. The plan would cause less disruption for the young children.

[18] Ms. Nicholson has approximately $900,000 in equity in her home and she is prepared to pledge whatever amount the Court deems appropriate. Although she has not been a surety before, she understands her responsibilities as a surety. She is aware that the defendant's father lives close by in Stoney Creek and that he is also proposing to be a surety. Ms. Nicholson advised that the allegations also came as a complete shock to her. She believed the defendant worked in the construction business providing quotes.

[19] Ciro Simonelli is the father of Michael Simonelli. He lives in the Stoney Creek area and he has lived at the same address for the past nine years with his wife and 20-year-old son. Mr. Simonelli Sr. worked as a truck driver for several years before retiring two years ago. His wife is a nurse. He has approximately $600,000 equity in his home. He plans on attending at his son's house every other day and will remain in contact with Ms. Nicholson. He is about a 5 to 10-minute drive from his son's house. Prior to his son's arrest he would visit him and his family two or three times a week. He has never been a surety before, but he understands the responsibilities of being a surety. Both he and Ms. Nicholson advised that they will not hesitate to contact police if Michael Simonelli breaches any of his conditions if released.

[20] Ciro Simonelli was shocked to hear about the allegations in this matter and more so to see his son handle the Kleenex box that contained a gun and then place the gun within the Kleenex box in his vehicle. Mr. Simonelli Sr. had no difficulty identifying his son as being the man in the photograph. Although he knew his son has always worked in construction, he had little understanding of what he did in his trade and he could not name the company he worked for. He believed his son would take people to see construction sites. He has never known his son or his nephew, Raffaele, to associate with Hells Angels. He did not recognize any of the names that the Crown had asked him about. I believe these names were obviously associates of this illegal organization. The Crown conceded that Michael Simonelli is not a member of Hells Angels and nor was their evidence that he was attempting to become one.

The Law

[21] Turning to the law, a person's entitlement not to be denied reasonable bail without just cause is guaranteed by s. 11(e) of the Charter of Rights and Freedoms. That right exists regardless of the nature or number of charges a defendant faces. The rationale for the principal was well explained in R. v. St-Cloud. The Court stated:

…it is important not to overlook the fact that, in Canadian law, the release of accused persons is the cardinal rule and detention, the exception… This entitlement rests …on the cornerstone of Canadian criminal law, namely the presumption of innocence is guaranteed by s. 11(d) of the Charter … These fundamental rights require the justice to ensure that interim detention is truly justified after having regard to all of the relevant circumstances of the case. [Citations omitted]

[22] The presumption of innocence remains regardless of the strength of the Crown's case. The most recent pronouncement on the right to bail was set out by the Supreme Court of Canada in R. v. Myers. The Court began its judgment with the following:

The right to liberty and the presumption of innocence are fundamental tenets of our criminal justice system. In the pre-trial context, release — at the earliest opportunity and in the least onerous manner — is the default presumption in Canadian criminal law. Pre-trial detention is the exception, not the rule.

[23] Pretrial custody takes a toll on any accused person. Justice Wagner, as he then was, explained in R. v. Antic:

Pre-trial custody "affects the mental, social, and physical life of the accused and his family" and may also have a "substantial impact on the result of the trial itself." [Citations omitted]

[24] Still, pretrial detention is in many cases necessary and appropriate. Entitlement to interim release is not absolute. If just cause exists, reasonable bail may be denied. However, the concept of just cause has been narrowly circumscribed. Detention is only justified in the three circumstances set forth in s. 515(10) of the Criminal Code. Because the defendants are charged with a number of Criminal Code offences and firearm offences, they bear the onus of establishing that their detention in custody is not justified (see s. 515(6)(a)(viii)).

[25] The Crown opposes the defendants' release on both the secondary and tertiary grounds.

Secondary Ground

[26] Section 515(10)(b) provides that pretrial detention will be justified when it is:

necessary for the protection or safety of the public, including any victim 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;…

[27] Since this is a reverse onus situation under s. 515, it is the defendants' burden to show that his detention is not necessary on this basis. Justice Watt in R. v. Manaserri, when speaking about the secondary ground, said the following:

…in connection with the specified circumstances encompassed by the clause "including any substantial likelihood that the accused will, if released from custody, commit...", the italicized words refer to a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely. [Emphasis in original]

[28] In any case where the accused is charged with serious offences, particularly offences involving firearms, there will almost always be obvious concerns about public safety and the protection of the public if he or she is released. However, the relevant question is not whether these concerns exist, but whether they can be adequately addressed by the proposed release plan having regard to all of the relevant factors.

[29] Mr. Levan argued because the men's livelihood depended on the illegal gambling network, they would likely continue with their criminal behaviour upon release. The case law is clear, however, that we must not decide these cases in theory or based on speculation. There must be a demonstrated history of repeated criminal behaviour despite the intervention of the justice system. Given the lack of criminal antecedence for both accused, I am satisfied that the proposed plan would address the secondary ground. Given that responsible sureties have come forward in both instances and will be supervising the accused on house arrest, I find that it cannot be said that there is more than a possibility that they would commit criminal offences upon release. I do not find that there is a substantial likelihood that they will continue to engage in criminal activity, at least while on bail.

Tertiary Ground

[30] However, turning now to the tertiary ground, s. 515(10)(c) of the Criminal Code provides an accused may be detained prior to trial when doing so:

…is necessary to maintain confidence in the administration of justice having regard to all of 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 potential lengthy term of imprisonment or, in the case of an offence that involves or whose subject-matter is a firearm, a minimum of imprisonment for a term of three years or more.

[31] The Supreme Court in St-Cloud held that the Court is required to consider all of the circumstances of each case with particular attention to the four enumerated factors. No single circumstances is dispositive. The Court must consider together the combined effect of all the circumstances of each case to determine whether detention is justified. There must be a balancing of all of the relevant circumstances. The ultimate question to be asked by the Court after the balancing exercise is whether detention is necessary to maintain confidence in the administration of justice.

[32] The Crown introduced an affidavit from a member of the Peel Regional Police which set out the alarming rate at which firearm offences have increased in the region. Ten homicides in 2018 were the result of a shooting. Most members of the public are alarmed by the dangerous proliferation of the use of guns in our community. Where an offence is alleged to have occurred involving a firearm, there will always, as I said, be obvious concerns about public safety and the protection of the public.

[33] In any case involving firearm charges, at least three or four of the listed factors in 515(10)(c) will inevitably weigh in favour of detention. Firearm offences are, by their nature, serious. They, by definition, involve the use of a firearm and they generally attract substantial terms of imprisonment on conviction even when there is no longer an operational mandatory minimum sentence.

[34] However, as Justice Wagner explained in St-Cloud, s. 515 does not create a legal regime in which everyone charged with a gun or serious drug offence is automatically detained under the tertiary ground unless he or she can show that the Crown's case is weak. Rather, courts must consider all the relevant circumstances that bear on the question of whether the public's confidence in the administration of justice require the accused's pretrial detention. Justice Trotter, as he then was, explained in R. v. Dang, one of the relevant factors that must be considered in the tertiary ground analysis is the strength of the proposed release plan. He stated:

A reasonable and knowledgeable member of the community may take a different view of a case in which an accused person charged with a violent offence is released into the community with virtually no supervision, compared to a situation where a strict plan has been put in place to monitor the accused. The plan goes to the core of s. 515(10)(b), but it may also impact on the application of s. 515(10)(c). The bail decision does not involve a stark choice between absolute freedom on one hand, and detention on the other. Realistically, it is a choice between release on conditions and detention. I see nothing wrong with this reality being reflected in s. 515(10)(c).

[35] In the case of R. v. Biya, the applicant was convicted of two counts of careless storage of a firearm and ammunition, two counts of possession of firearm ammunition and other related charges, possession of the firearm in the vehicle, possession of a loaded firearm and also possession for the purpose of schedule I drugs for the purpose of trafficking. He was sentenced to four years' imprisonment less time served. He appealed his conviction and sentence. The Court, after finding that the ground of appeal was not frivolous, granted the applicant bail and noted that while the offences were obviously serious, based on the applicant's history of bail compliance and the surety plan put forward, the Court was satisfied that he will comply with all terms of release. The Court underlined the fact that "Standing on its own, the nature of the offence does not justify detention on public interest grounds: R. v. Oland, 2017 SCC 17, at para. 20."

Analysis of the Tertiary Ground – Four Factors

Apparent Strength of the Crown's Case

[36] The case against both accused with respect to their involvement in an illegal gaming and betting operation appears to be a strong one, at least with respect to the last year. Although the information alleges that this criminal activity began in 2013, I did not hear any evidence connecting them to this type of operation beyond 2019. Turning to Raffaele Simonelli's jeopardy, in addition to acting as a manager for the gambling establishment, there was evidence that he sits as a 'master agent' in the hierarchy structure of his organization that is involved in an online gambling and bookmaking. I noted that many people though, fit under that definition according to the synopsis. It does not mean that he is higher in the hierarchy, but rather the police have defined many participants with that definition.

[37] However, more troubling are the firearm charges and the fact that the Crown's case appears to be strong with respect to the July 31st, 2019 possession charge. He is captured on video handling the gun and allowing his cousin to take the firearm out in a Kleenex box.

[38] With respect to the tasers found during the search of his residence on December 12th, 2019, there appears to be strong circumstantial evidence that the weapon is his given it was found in the master bedroom at the bedside table or in his nightstand. The case with respect to the second taser found in the spare bedroom it could be argued that it may not be a strong case, it may be that that taser belonged to another friend or family member.

[39] With respect to the gun found on December the 12th, 2019 in Raffaele Simonelli's car in a glove box with a secret compartment, this would appear to be a strong circumstantial case. However, of course, defence has alluded to the fact that it could be argued that someone other than the defendant put the firearm in his vehicle, but that individual would have to also of course know about this special secret compartment. That, of course, all remains to be argued at a trial.

The Gravity of the Offence

[40] Illegal gambling and bookmaking offences are serious in and of themselves. Such activity can lead to more serious offences such as money laundering, tax evasion, and I think that goes without saying that those offences are committed as well at the same time; offences against the person when members attempt to collect unpaid debts can also occur. The Crown argued that shootings and murders have taken place over different organizations vying for control of this type of criminal activity.

The Circumstances Surrounding the Commission of the Offence

[41] It goes without saying that possession of a firearm is always a serious matter. With respect to the gun seized in July 2019, the gun was kept initially secreted in a ceiling tile and then transported in a Kleenex box and kept in the back of his vehicle. It was not carried on the person for ready use. There was no suggestion from the surveillance over the course of several months that either accused used a firearm or engaged in any violence.

The Fact that if Accused are Convicted, they Face a Lengthy Term of Imprisonment

[42] It is clear that if the accused are convicted of the offences before the Court, particularly the firearm charges, that they could receive a penitentiary sentence. The critical question in my view is whether the defendants' proposed release plan is sufficient to allay the concerns about public safety and the protection of the public that would be presented by their release on bail. I must consider together the combined effect of all of the circumstances to determine whether their detention is justified.

[43] I initially was of the view that given the sureties had absolutely no idea what the accused men were doing for the better part of a year, that they would not be appropriate sureties. They clearly did not know who they were dealing with. However, they do now. They were presented with strong pieces of evidence at the bail hearing. Their eyes are wide open. They are responsible people who, in other respects, have close family ties and bonds with the accused men. In addition, the sureties are proposing to pledge a large amount of their equity to secure the accused's release under their supervision.

[44] I find in balancing the four factors, together with the strength of my findings on the secondary ground, that release is justified. A strong plan of supervision is a factor that must be considered in assessing whether detention is necessary to maintain confidence in the administration of justice. I am of the view that a reasonable and knowledgeable member of the community who considered the matter dispassionately and with the understanding of the presumption of innocence would place considerable weight on the fact that, if the defendants are released on bail, they will be on strict house arrest.

Raffaele Simonelli – Terms of Release

[45] In the case of Raffaele Simonelli, he will be supervised by his brother-in-law, Mr. Martin Campbell, who is retired, and has time to devote to a house arrest supervision. He is prepared to pledge his life savings. So, with respect to Raffaele Simonelli, Mr. Martin Campbell will be his surety in the amount of $300,000. He will be on strict house arrest and Raffaele Simonelli will be unable to leave his home unless he is in the presence of Mr. Campbell. Another exception will be if he has a medical emergency for himself or a family member.

[46] Raffaele Simonelli will not be permitted to use the internet or have a phone which has internet capabilities. He will be in breach if he has a smartphone.

Michael Simonelli – Terms of Release

[47] With respect to Michael Simonelli, he will be monitored by two responsible sureties who are proposing to pledge a large percentage of their life savings, his mother-in-law and his father. He can be released on bail in the amount of $300,000. Ms. Marilyn Nicholson will be one of the named sureties in the amount of $150,000. The Court will be expecting that Ms. Nicholson will be residing with Michael Simonelli and her daughter. His father, Ciro Simonelli, will be a named surety in the amount of $150,000. Michael Simonelli will be on strict house arrest. He will not be able to leave his home unless he is accompanied by one of his sureties or for a medical emergency involving himself or a family member. He will have no access to the internet and he will not be in possession of a smartphone. The phone should only be allowed to make phone calls and not have an ability to connect to the internet.

Released: December 27, 2019

Signed: Justice A. R. Mackay