COURT FILE NO.: CR-05-62
DATE: 20120217
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
DANIELE DI TRAPANI
Applicant
D. Bentham and T. Norman, for the Respondent
J. Fleming, for the Applicant
HEARD: January 25 and 26, 2012
GLITHERO J.
(PUBLICATION BAN: Pursuant to S. 522 (5) and S. 517 of the Criminal Code, it is ordered that the evidence taken or filed, the information given or the representations made on this application, and these reasons, shall not be published in any document, or broadcast or transmitted in any way before the trial of this matter is ended.)
Ruling
[1] Mr. Di Trapani applies for bail pending his retrial on a charge of first degree murder.
[2] Originally he was jointly tried with Maria Figliola. The crown’s theory was that Ms. Figliola hired Mr. Di Trapani to kill her husband, Frank Figliola. Mr. Figliola was found beaten to death in the early morning hours of August 7, 2001, on a pathway not far from his home in Stoney Creek.
[3] The crown began calling evidence on January 11, 2006 on the joint trial. A verdict of guilty as against both accused was returned by the jury on May 7, 2006. Both convicted persons appealed. The appeal was heard December 20 and 21, 2010. The Court of Appeal delivered its judgment on June 17, 2011, allowing the appeal of both appellants and directing new separate trials for each. In respect of the applicant’s appeal, the Court of Appeal judgment rested on a determination that the original trial judge had erred in refusing to grant the applicant’s request to have his trial severed from that of the co-accused, Figliola. The court held that severance was required as otherwise the jury would hear a great deal of evidence that was highly prejudicial to Mr. Di Trapani, but which was admissible only against Figliola, and was inadmissible as against him.
The Factual Background
[4] It appears the Figliola marriage was unhappy. They were living in separate rooms, and had financial problems. Four months before the killing, Mrs. Figliola began an affair with a Mr. Gonsalves. Upon her husband’s death, she became entitled to payments from the deceased’s employer and life insurance policies totalling approximately $500,000.
[5] In the first trial Mr. Gonsalves testified as to many remarks allegedly made to him by Mrs. Figliola to the effect that she discussed the murder of the deceased, including various ways in which it could be done, one of which was not unlike the eventual killing of Mr. Figliola, which occurred on a pathway, while he was out walking. According to Gonsalves, she also indicated that she had talked about the murder with “Dan”. According to Gonsalves, Mrs. Figliola made many incriminating remarks, but all were as between the two of them and hence, inadmissible against the applicant. Allegedly, she also told two coworkers that she thought of having her husband killed and about hiring a hit man for that purpose.
[6] Mrs. Figliola worked for a bank until she was found to have stolen from the bank the sum of $462,000 over a 20 year period. She testified that she met Mr. Di Trapani through one of his aunts that worked at the same bank that she did. She would see him at the home of a Mrs. Pignatelli, a woman who is a common friend of both.
[7] There was evidence that Mrs. Figliola worked for a company that dealt in cell phones after she left the bank, following the discovery of the theft. There was evidence that she gave out several cell phones to various associates. One of those phones, according to the evidence, was given to Mrs. Pignatelli’s husband to give to Mr. Di Trapani. The evidence was that Mrs. Pignatelli had asked for the cell phone because Mr. Di Trapani was doing construction work for her and her husband.
[8] Mr. Figliola’s body was found in the early morning hours of August 7, 2001, on a path close to his home. Witnesses observed his car being driven in that area around 9:00 p.m. on August 6, 2001.
The Case against the Applicant
[9] There is evidence that the applicant attended a family party on the day of the homicide, leaving the party around 8:30 p.m. and going to one of several social clubs that he owned. Regular customers at that club testified to seeing the applicant and four or five other men standing outside the club and burning something in a bin behind the building. The evidence was that it was commonplace for there to be such fires in the bin. There is no evidence of what was burned.
[10] One Luigi Latorre, a friend of Mr. Di Trapani, was interviewed many times by the police. In early statements, he said nothing to suggest involvement by Mr. Di Trapani in the homicide. After police had accused him of being involved in the killing or witnessing it, Mr. Latorre eventually told the police about meeting Mr. Di Trapani on August 6, 2001. He testified he arrived at the applicant’s club between 9:00 and 9:30 p.m., about one-half hour before Mr. Di Trapani arrived. He testified that he later drove Mr. Di Trapani down a street by the opening of a path, down which the deceased’s body was later found. He testified that as they drove by the location, the applicant was leaning over trying to see something out the driver’s window and told Mr. Latorre to keep driving. He testified that the applicant directed him to a residential area, told him where to stop, left the car and went into a house and returned about ten minutes later. He also testified that many months later he spoke to the applicant who told him to tell the police that they had been together “last year” at Tim Hortons. Mr. Latorre’s evidence will undoubtedly be the subject of careful attention at an upcoming trial. He himself testified that the police had pressured him into speaking and confirmed that they had accused him of either being the killer or witnessing the killing. He gave many different accounts of the events of August 6, 2001, which range from non-involvement on the part of the applicant to the more inculpatory version outlined above. He didn’t tell what now is said to be the truth for many months after first being interviewed.
[11] There was evidence that in the month prior to the murder, Mrs. Figliola and the applicant spoke 143 times by telephone and spoke only twice thereafter.
[12] The applicant indicated to the police that he repaid the sum of $300 to $400 per month representing the cost of the cell phone provided by Mrs. Figliola to Mrs. Pignatelli for the use of the applicant.
[13] Police surveillance indicated that the applicant and Mrs. Figliola met at a Tim Hortons exactly one month after the homicide. Americo Roque testified that he was present, but left after learning of the death of Mrs. Figliola’s husband. It was also brought out that Roque became a member of the Outlaws Motorcycle Club in 2001. While he admitted knowing the applicant, he testified that none of his dealings with the applicant involved the motorcycle club or its activities.
[14] Police observed the applicant to drop Mrs. Figliola off at her bank on September 28, 2001, where she cashed a cheque for $3,500 and then he picked her up a short time later. She testified that the money was for a car auction that the applicant was going to take her to in order to look for a car and that $500 of that amount was to get Mr. Figliola’s car cleaned. She testified that she never gave Mr. Di Trapani any of the money.
[15] On October 18, 2001, Mrs. Figliola took out a bank draft payable to the applicant’s mother in the amount of $4,300, which she testified was for partial payment for the car the applicant was going to buy at the auction. She testified that the applicant asked her to make the draft out to his mother because he was having problems at the bank. A handwriting analyst testified at trial that the writing of the mother’s signature as endorser was probably the writing of the applicant.
[16] Mrs. Figliola withdrew $4,500 in cash on October 12, 2001. A cheque for $10,000 payable to a company registered to the applicant and dated October 22, 2001 was made out, but payment on the cheque was stopped before it was cashed. Mrs. Figliola denied that she wrote out the cheque and explained that her car had been broken into, cheques taken, so she had to stop payment on the cheques. There is handwriting expert evidence that the signature on the cheque was probably not hers. There is evidence that the applicant admitted to the police that he got a $10,000 cheque from Mrs. Figliola payable to his company and he explained that he owed money to people for gambling debts, and that they would cause him harm if he did not repay the debts. He could not explain to the police why Mrs. Figliola had written a cheque to his mother.
[17] While evidence of payments from Mrs. Figliola to the applicant may seem unusual, there was also evidence of a $22,000 cheque from her to Mrs. Pignatelli, within the same time period.
[18] Mrs. Pignatelli testified at trial for the crown and indicated that she had seen the applicant twice on August 6, 2001. Once was around 9:30 p.m. in the parking lot of the social club that he operated. She also testified that a few minutes later, she saw him drive by her store with Mr. Latorre, that she called him on his cell phone and spoke to him for a brief conversation at 9:31 p.m. She spoke to him again at 10:21p.m.
[19] On this application before me, the crown called a police officer to testify about six individuals who were said to be members of either the Outlaws Motorcycle Club or Satan’s Choice. There was evidence that the applicant knew them and had been seen with them. There was no evidence whatsoever called that the applicant had done anything illegal with these individuals, or that he belonged to the club or that his association involved anything unlawful.
[20] There was also evidence led before me that the applicant knew two brothers named Musitano, both of whom had been convicted of conspiracy to commit murder. The officer testified that the accused knew them by working for them. Other evidence before me indicates that the applicant’s association with the Musitanos was to the extent that as a teenager, he worked in a bakery or in a restaurant owned by them. There is absolutely no evidence that the accused did anything illegal with or for the Musitanos.
[21] There was evidence, both at trial and referred to again in this application, that the applicant owed gambling debts, some of which were owed to a Mr. Ferreira, a reputed member of the Outlaws Motorcycle Club. Mr. Ferreira has no criminal record. The applicant has no criminal record.
[22] There is also evidence before me that Mr. Latorre claims to have been approached by two witnesses, Mr. and Mrs. Pignatelli, in August of 2004. They approached him in a restaurant. Allegedly Mr. Pignatelli assaulted Mr. Latorre. Mr. Pignatelli pleaded guilty to that assault. Charges of intimidation were withdrawn. The inference is that the Pignatellis were there to scare Mr. Latorre so as to benefit Mr. Di Trapani. Of course, they were also friends of his co-accused, Mrs. Figliola. There is no evidence that the applicant played any part in this or organized it.
[23] There is evidence before me that on December 3, 2002, prior to the applicant’s arrest, investigating officers went to his family’s restaurant looking for him so as to speak to him about the murder. There is evidence that family members said that they had no means of contacting the applicant. Later that afternoon, the applicant phoned the police and voluntarily came to the station to be interviewed. It appears the inference that I am being asked to draw is that family members lied when they said they had no means to contact him, otherwise he would not know the police wanted to speak to him. I do not see how that is evidence of anything, except that the applicant was willing to voluntarily speak to the police.
[24] The investigating officer testified before me that he has no evidence of any contact between the applicant and any of those individuals said to be affiliated with motorcycle gangs since he has been in custody.
[25] In December of 2007, a psychiatrist at the Millhaven Institution concluded that the applicant was “likely capable of living in a lower security environment with less supervision after his two years in maximum security.” In 2008, the applicant was approved for transfer to medium security, Fenbrook Institution and was noted to have a “moderate” public safety risk evaluation. From my reading of the records, it would appear that his refusal to accept responsibility for the killing was in large measure the reason for the finding that he was a “moderate” level.
[26] The applicant was in the midst of a process to evaluate a transfer to Joyceville Institution at the time that the Court of Appeal decision ordering a new trial was released.
[27] On my review of the institutional records, it appears the applicant’s work record was excellent throughout, both as to productivity, and more importantly, as to the attitude reflected by him in carrying out his various work assignments.
[28] There appears to have been one incident of misconduct involving a situation where the applicant was found to be smoking in a prohibited area, and was found to have a lighter and some unauthorized pills on his person. Given that he was in the penitentiary system for approximately five years awaiting the outcome of this appeal, in my assessment this is not an incident of great concern.
Proposed Plan of Release
[29] The applicant and six proposed sureties filed affidavits. Only two of the proposed sureties were called to give evidence and were cross-examined. They were Josephine Di Trapani and Maria Giovanna Parete.
[30] The applicant, his father Vincenzo Di Trapani, his mother Francesca Di Trapani, his brother-in-law Mauro Parete, and a younger sister Salvatrice Di Trapani were not called to testify, but were present . They were not cross-examined on their affidavits.
[31] The affidavit of the applicant indicates that he was born July 7, 1975 in Hamilton and has lived his entire life in Stoney Creek, Ontario, primarily with his parents or his sister, Josephine. He completed high school in 1995. He had various employment enterprises, one of which was working in the family restaurant business. He has no criminal record and no outstanding criminal charges. He proposes to live with his older sister, Maria Giovanna Parete and her husband, Mauro Parete at their home in Stoney Creek, and undertakes to abide by their rules and conditions. He proposes, if released, to work for his older sister, Josephine Di Trapani at her restaurant, Viso, at 11 Hess Street South in Hamilton. He would propose to work there under her supervision during the day.
[32] The applicant’s father, Vincenzo Di Trapani is 68 years of age and has lived in Canada since 1967, and is a Canadian citizen. He has no criminal record and no outstanding charges. He has been married for 43 years and has five children. His affidavit contains financial documentation indicating equity in his home in the amount of $130,000 and an estimate valuing his share of the family restaurant at $20,000. He offers to pledge the sum of $85,000 as a penal sum as a surety and expresses his willingness and ability to supervise the applicant and to enforce terms of his release. He undertakes to contact the police if the conditions of release are breached or are about to be breached.
[33] The applicant’s mother, Francesca Di Trapani is 62 years of age, arrived in Canada in 1968, is a Canadian citizen and has no criminal record and no outstanding charges. As did her husband, she swears that her equity in the home is approximately $65,000. She works full-time as a cook in the family restaurant and values her share of that enterprise at $20,000. She has income of $12,000 and in addition the restaurant pays her house mortgage and a line of credit. She undertakes to sign as a surety with penal sum of $85,000, and expresses her willingness and ability to supervise the applicant, and to report him if he is about to or does breach his conditions. She swears to having visited him regularly and spoken to him daily by phone since he has been in custody.
[34] Mauro Parete, the applicant’s brother-in-law, is 41 years of age, was born in Hamilton and has no criminal record and no outstanding charges. He has been married to another proposed surety, the applicant’s sister, Maria, since 1994 and they have no children. They own their own home with equity estimated in the amount of $357,000, supported by documentation made exhibits to his affidavit. He is a full-time licensed electrician earning $52,000 per year working for a company in Stoney Creek. He expresses his awareness of the allegations, his willingness and ability to act as surety, and his willingness to pledge his assets worth $178,000. He proposes to have the applicant live with him and his wife. He undertakes to report any breach of condition.
[35] Salvatrice Di Trapani is the younger sister of the applicant. She is 26 years of age and has no criminal record or outstanding charges. She is single and lives with her parents, and has since birth. She works at a company in Hamilton and has since 2006 as a human resource and benefits administrative coordinator, full-time and earns approximately $41,000 per year. She estimates the value of her savings to be $22,000 and provided supporting documentation. She expresses her willingness to sign for the entire $22,000, and that she is be able and willing to supervise the applicant and his terms of the release. She lives ten minutes away from her sister where the applicant would live. She pledges to turn him in if the applicant was about to or did breach a condition of release.
[36] Josephine Di Trapani is an older sister, was born in Hamilton, is single and has no children. She does not have a criminal record or any outstanding charges. She is 33 years of age and has lived with her parents since 2003 and prior to that lived in her own home, which she still owns and rents out for $1,350 per month. She estimates its equity to be $137,000 and provides supporting documentation. She estimates her share of the family restaurant business to be worth $20,000. She also owns her own restaurant called Viso in Hamilton, which she estimates to have a value of $150,000 with documentation of prior evaluations attached to her affidavit.
[37] She proposes that if released, her applicant brother would reside with her sister, Maria Giovanna Parete and her husband, Mauro Parete, but that the applicant would work for her at Viso during the day where he would do kitchen duties under her supervision. The hours of operation of Viso are 11:00 a.m. to 8:00 p.m. Tuesday to Thursday and 11:00 a.m. to 2:00 a.m. on Friday and Saturday. She indicates that she would report the applicant if he was about to or did breach a release term. She offers to pledge her entire assets worth approximately $370,000 by way of penal sum. She reports having visited the applicant every week while he was in Millhaven and to have spoken to him daily on the telephone. She was cross-examined at length about the $4,300 draft made out by Figliola to the applicant’s mother. Her evidence is that her mother borrowed that amount of money for a trip to Italy. Her understanding is that her sister, Maria, signed her mother’s name as the endorser of the document. She bases that understanding on what she was told came out by way of evidence at the first trial. When shown a photocopy of the document on this application and she was unable to identify who it was that had written her mother’s name by way of endorsement.
[38] Maria Giovanna Parete is the applicant’s older sister, is 40 years of age, has been married to Mauro Parete since 1994 and has no children. She has no criminal record and no outstanding charges.
[39] She and her husband jointly own their home in Stoney Creek and have since 2006 and have approximately $357,000, as confirmed with supporting documentation. She estimates her share of the family restaurant to be worth $20,000. She has worked at the Bank of Montreal in Stoney Creek since 1990, working 30 hours per week, four days per week and earns $27,000 per year.
[40] She is prepared to pledge her assets in the approximate amount of $198,000 by way of penal sum, and is prepared to have the applicant live with her and her husband. She proposes that during the day he work and be with his sister, Josephine Di Trapani at her restaurant.
[41] She testified on this application in chief. She agreed that she dealt with the draft for $4,300 payable from Mrs. Figliola to her mother. She testified that she could not remember whether she cashed it or deposited the cheque. In chief, she indicated that she may have endorsed her mother’s name and explained that she sometimes did so for her mother or father, who had accounts at the bank where this witness worked. She testified that she would sign things for family members if asked to do so by them, and testified that her bank knows of this practice. She indicated that it may have been done at a time when her mother visited in Italy. She expressly testified that when she would sign her mother’s name or that of any other family member, she would only do so with their approval and on their behalf.
[42] On cross-examination, she agreed that she signed her brother’s name to a money order dated March 28, 2001, in the amount of $1,000, and that she did so because her brother, the applicant, phoned her and asked her to prepare the money order and sign it as he needed the money to cover a debt. On cross-examination, when asked about Exhibit 9, the $4,300 bank draft, she indicated that she could not say whether or not it was her writing by way of purported signature of her mother on the back of the draft and indicated that it could be her writing or that of her brother.
[43] She was then shown Exhibit 255 from the trial, which is the original of the $4,300 draft. On seeing the original, which appears to be much clearer, she testified it was not her writing comprising the alleged signature of her mother by way of endorsement. She testified that it could be her brother’s writing, but was not sure. On cross-examination, she also testified that her mother did visit Italy in 2001, by reason of a family death, and that as this witness was living in Toronto at the time, she did not know how the money was obtained to pay for the trip.
[44] She was further questioned about a cheque dated October 22, 2001 in the amount of $10,000 marked as Exhibit 11 in this application. She admitted knowing of the cheque and that it was drawn on Mrs. Figliola’s account. She agreed with the suggestion that she also knew the cheque turned out to be N.S.F. and for that reason was charged back against the writer’s account. She testified that her bank would keep the cheque and that she became aware the police were looking for the original. It was kept in her bank in a file folder for her brother’s numbered company. She testified that part way through the trial, when she became aware the police were looking for the cheque, she arranged to have the bank bring back a stored closed file, which contained the cheque and that she produced it to her brother’s lawyer. She was also shown Exhibit 12, a draft in the amount of $8,800 payable to Luis Ferreira and agreed that she signed it as the bank employee who issued the draft, and testified that the signature in the place for the account holder looked to be her brother’s signature.
[45] On re-examination, subsequent questions clarified that the $10,000 cheque marked as Exhibit 11, was in fact not N.S.F., but rather, “stop payment.” In questions by me, she indicated that she regularly works at the family restaurant that she and her sisters divide up the required number of hours per week and decide who will work when. She also advised me that at her sister’s restaurant, Viso, the plan is that the applicant would be with his sister, Josephine, working there until about 4:30 p.m. and then he would be brought back to her place, where he would reside.
The Law
[46] Pursuant to s. 522 (2), in the circumstances of this case, the onus is on the applicant to show why his detention is not justified within the meaning of s. 515 (10). Section 515 provides that,
(10) The detention is justified only on one or more of the following grounds:
(a) where the detention is necessary to ensure his attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all of the circumstances including any substantial likelihood that the accused will, if released, commit a criminal offence or interfere with the administration of justice; and
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all of the circumstances, including,
(i) the apparent strength of the crown’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 potentially lengthy term of imprisonment.
[47] Where a conviction is set aside on an appeal and a new trial ordered, the accused then regains the presumption of innocence and the earlier conviction is irrelevant to the issue of bail: R. v. Heyden, [2009] O. J. No. 2492 (C. A.).
[48] On this application, the materials filed by the crown do not suggest that detention is required on the primary ground.
[49] With respect to the secondary ground, it is clear that there is a risk of further offence or interference with the administration of justice if any person is on bail, and that what is required in order to justify detention on the secondary ground is a “substantial likelihood:” R. v. Baltovich, 1991 CanLII 7308 (ON CA), [1991] O. J. No. 2031 (C. A.).
[50] As to the tertiary ground, the Supreme Court of Canada has held that it will only apply in relatively rare cases, and that its application will not arise frequently. This ground is to be used sparingly: R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309.
[51] Our Court of Appeal has pointed out that the tertiary ground is most difficult to consider in murder cases, whereby definition the second and fourth factors enumerated in (c), the gravity of the offence, the potential for a lengthy sentence, are a given. As to the third factor, the circumstances surrounding the commission of the offence, something more than just the fact of the killing as required. The horrific nature of the crime or a high level of concern in the community is capable of satisfying this third factor: R. v. R. D., 2010 ONCA 899, [2010] O. J. No. 6111 (C. A.).
[52] It seems to be that an allegation of a contract killing, that is a killing for hire, will often satisfy this third ground. Unlike a killing said to stem from passion or a grudge, a killing for money may be particularly worrisome to the community because of its callousness.
[53] Even where the circumstances surrounding the commission of the offence are particularly egregious, the lack of strength to the crown’s case may point towards release: R. D., supra.
[54] In considering whether detention is “necessary to maintain confidence in the administration of justice,” one uses as a yard stick that of a reasonable member of the community, informed of the circumstances, and of the appropriate legal principles relevant to bail issues: R. v. Mordue (2006), 223 C.C.C; R. D., supra.
Discussion
[55] In my opinion, there is no reason for concern on the primary ground, namely that detention would be necessary to ensure the applicant’s attendance at trial, nor does this crown argue that to be the case. Given the lack of any criminal record or outstanding charges, the longstanding roots in the community, the significant family support within the plan for release, including supervision of a substantial nature, the fact that the applicant voluntarily went to the police station upon hearing that the police were looking for him, in my opinion, the applicant has satisfied the onus on this ground.
[56] As to the secondary ground, in my opinion, there is no substantial likelihood that if released, the applicant would commit a crime. He has never been convicted for any crime and has no outstanding charges other than this one. While the prosecution alleges prior contacts with bikers or known criminals, in my view, none of that evidence shows the applicant to have been involved in any criminal wrong doing. There is evidence of a gambling habit, and indeed, one somewhat out of control, back in the time period during which the death was committed. In my opinion, that can be adequately addressed through terms of release and enforcement of such terms by sureties.
[57] As to a “substantial likelihood” that if released, he would interfere with the administration of justice, such a concern largely rests on the evidence of Mr. Latorre. In my opinion, his evidence entails several potential weaknesses. As earlier indicated, Mr. Latorre, himself, testified that he felt pressured by the police to give a statement. He gave several statements, inconsistent as between themselves, and only in a fourth one was he indicative of involvement by the applicant. The alleged request by the applicant for Mr. Latorre to provide a false alibi to the police is devoid of particulars and easily suggested. There is no evidence of any assault or threatening behaviour by the applicant towards Mr. Latorre, despite the fact that Mr. Latorre continued to live at a known address.
[58] After detaining the applicant, Flynn J. at the earlier bail hearing made an order pursuant to s. 516 (2) prohibiting the applicant from communicating with the witnesses. There has been no report of any attempt to do so. In my view, the proposed plan for the applicant’s release is a strong one. There are six purposed sureties, and counsel for the applicant requests that I enlist all of them. They are collectively prepared to pledge by penal sum virtually everything they have. They are family members, of what on all the evidence appears to be a tightly knit family that has remained in regular contact with the applicant during his incarceration. They are prepared to provide virtually around the clock supervision of the applicant, as well as a job and a residence. None of the proposed sureties have criminal records or any outstanding charges. On the evidence available to me, they appear to be a law-abiding, tightly knit, hardworking family. In my assessment, their willingness to risk virtually everything reflects their considered belief that the applicant will respect what they are doing for him and comply with any terms of release, rather than reflecting desperation on their part.
[59] As in any case of alleged first degree murder, more particularly contract killing, the tertiary ground is of significant concern.
[60] On the earlier bail hearing, the presiding judge referred to the crown’s case against the applicant as being “not overwhelming” at one point, but “compelling” at another. At page 196 of the transcript, he specifically referred to what was probably the most damning evidence against the applicant, that of Geoffrey Gonsalves. That evidence was inadmissible as against this applicant and was so prejudicial that the Court of Appeal ruled that a severance ought to have been granted and ordered separate new trials. In the view of the Court of Appeal, the handling of the severance issue resulted in an injustice towards this applicant. The preliminary hearing judge, after hearing 31 days of evidence concluded that when the crown’s case was taken at its highest,
“The evidence presented against Maria Figliola is more compelling and persuasive than that against Daniele Di Trapani. However I find that the evidence in regard to Daniele Di Trapani passes the scintilla of evidence threshold test.”
[61] As to the strength of the crown’s case, in my assessment it is far from overwhelming.
[62] There will undoubtedly be those within the community who think it appropriate to detain anyone charged with first degree murder in circumstances of an alleged contract killing. That, however, is not the applicable yardstick.
[63] Rather, I look to the notional views of a fair-minded and reasonable citizen, informed of the circumstances of the offence, of the offender and of the legal principles applicable to judicial interim release. I suggest this notional reasonable person would consider the following factors:
• The accused has no criminal record and no outstanding charges.
• The accused has now been in custody for over eight years and has yet to have a fair and just trial.
• His new trial will be separate from that of the co-accused, and in my assessment, of less strength against him.
• After a considered review of all the evidence, the Court of Appeal has identified potential weaknesses in the evidence of Mr. Latorre, probably the strongest piece of crown evidence against the applicant.
• The co-accused, Mrs. Figliola, against whom the crown case seems to be stronger, was released on consent pending the first trial and again, pending her retrial, despite the fact that prior to her successful appeal, she was convicted of criminal breach of trust and fraud over $5,000 in respect of the significant acts of dishonesty towards her employer bank.
• The retrial of this applicant will be months, if not a year away, as a result of a crown decision to proceed with the retrial of the former co-accused first, and because of schedule unavailability on the part of the applicant’s counsel.
• Six family members, none of whom has any criminal history, are prepared to supervise the applicant constantly, to provide him with a suitable residence and employment, and are prepared to pledge virtually everything they own by way of signifying their belief that the applicant will obey any terms of release and will not put their well-being in jeopardy.
[64] In my assessment, taking all of the factors into account, this notional, a reasonable and informed member of society would conclude that the applicant has demonstrated that his detention is not justified, and would agree with the observation of the Court of Appeal in Heyden, supra, at para. 24, quoting from R. v. Khan (1998), 1998 CanLII 17677 (MB CA), 129 C.C.C. (3d) 443 at 445 that,
“Confidence in the administration of justice would more likely be compromised by detaining a possibly innocent man in custody for a prolonged period pending his retrial.”
Result
[65] For the foregoing reasons, I order that the applicant be released upon entering into a recognizance with the following sureties, in the following penal sums, and on the conditions, all as set forth in Schedule A.
Glithero J.
Released: February 17, 2012
COURT FILE NO.: CR-05-62
DATE: 20120217
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
DANIELE DI TRAPANI
Applicant
REASONS FOR JUDGMENT
Glithero J.
Released: February 17, 2012