Introduction

[1] The Applicant Arturo Destacamento brought an application pursuant to s. 520 of the Criminal Code for a review of the detention order made by Justice of the Peace Conacher on August 31, 2015.

[2] Mr. Destacamento has been in custody since July 2, 2015. He is facing two sets of charges, both alleging conspiracy to traffic and trafficking in crystal methamphetamine as well as related charges. The first set arose from his arrest in 2012 and those charges have now progressed to this court. A trial date for these charges was vacated when Mr. Destacamento’s lawyer died and there was to be a new judicial pre-trial later in December. I presume a new trial date has now been set but that it is likely for late 2016. Mr. Destacamento was charged with the second set of offences in July 2015 and those are still in the Provincial Court. A trial date for these charges was set for some time in March 2016 on the basis that Mr. Destacamento was in custody.

[3] With respect to both sets of charges it is alleged that Mr. Destacamento was the supplier of crystal methamphetamine and that he supplied the drugs to runners who made the deliveries to the purchasers.

[4] After hearing from the proposed new surety and hearing the submissions of counsel, on December 18, 2015, I advised the parties that I had found that there had been a material change in circumstances and I granted the order sought for written reasons to follow. I released Mr. Destacamento upon his entering into a recognizance with one surety on conditions that provided for strict 24/7 house arrest.

The Issues

[5] The basis of the request for the review was that there had been a material change in circumstances in that a new surety, Mr. Destacamento’s younger brother (by one year), Premie Destacamento (“Premie”), was being proposed along with strict house arrest controls that addressed the secondary ground concerns that the Justice of the Peace had in deciding to detain Mr. Destacamento.

[6] Ms. Bellerose for the Crown submitted that there has been no material change and that the new plan did not address the secondary ground in that there would still be a substantial risk that Mr. Destacamento would re-offend given he is alleged to have committed the very same type of trafficking offences in 2015 while he was out on bail and subject to a restrictive house arrest on the 2012 charges.

[7] There were, therefore, two issues that I had to determine: did I have jurisdiction to consider this application and if so, ought Mr. Destacamento be released?

Jurisdiction to Consider this Application

[8] The first issue was my jurisdiction to consider this review given there was no suggestion that the decision of the Justice of the Peace was inappropriate or wrong in law.

[9] In the recent case of R. v. St-Cloud, 2015 SCC 27, [2015] S.C.J. No. 27, the Supreme Court of Canada held at paras. 120 and 121, that a reviewing judge does not have an open-ended power to review the initial order for detention or release and that it is only appropriate for the reviewing judge to intervene if the Justice has erred in law, if the decision of the Justice was clearly inappropriate or new evidence is submitted that shows a material and relevant change in the circumstances of the case. With respect to what would constitute a material and relevant change in circumstances the Court held (at paras. 128 and 129) that the four criteria from Palmer v. The Queen, [1980] 1 S.C.R. 579 apply "with any necessary modifications" (at para. 50).

[10] In this case Mr. Pierce argued that there had been a material change in that there was a new surety, a more stringent release plan and given Mr. Destacamento, if released, would live with his brother in Etobicoke, which would mean a reduction in the risk of re-offending simply because Mr. Destacamento would no longer be living in Scarborough where all of the other outstanding offences are alleged to have occurred.

[11] I appreciate that, as Justice Hill found in R. v. Ferguson, [2002] O.J. No. 1969 (S.C.J.) at para. 17, simply reshuffling the deck of prospective sureties to draw out new ones, or a greater number, does not amount to a material change in circumstances. Only where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the continued validity of the reasons for detention can it reasonably be said that the submitted material change in circumstances is relevant to the existing cause of detention.

[12] Having heard Premie testify and describe the plan he would implement to ensure that his brother has no opportunity to re-offend, I was satisfied that there was a material change in circumstances in that had this evidence been before the Justice of the Peace it could reasonably, when taken with the other evidence including the change in geographical location and the fact that Premie is putting up his own money, have been expected to have affected the result.

The Decision of the Justice of the Peace

[13] The matter proceeded as a reverse onus on Mr. Destacamento before the Justice of the Peace, as it did before me. The proposed sureties were Mr. Destacamento’s nephew and his nephew’s wife pledging $5,000 in cash and possibly a bit more, although they admitted that the $5,000 would come from Mr. Destacamento. It was proposed that Mr. Destacamento live with them in an apartment on Victoria Park Avenue in the City of Toronto and that he be subject to 24/7 house arrest with no cell phone and no access to the Internet. The nephew worked but his wife did not.

[14] The Justice of the Peace identified the issue as supervision. He noted that the modus operandi for the 2015 offences was similar to the modus operandi for the 2012 charges. He observed that the effectiveness of the plan of release turned on the “… Court’s assessment of the capacity and capability of the sureties to carry out the supervision, and coupled with the accused’s assessed predisposition to cooperate with those sureties.”

[15] The Crown argued that Mr. Destacamento had been on a residential surety house arrest bail; the strictest kind of bail the court can fashion and that while on bail he was alleged to have again trafficked in crystal methamphetamine. One of the objections the Crown had to the proposal before the Justice of the Peace was that it would put Mr. Destacamento in exactly the same geographical area where the second set of offences are alleged to have been committed.

[16] The Justice of Peace concluded that the proposed sureties were not in a position, nor capable or competent, to supervise Mr. Destacamento and that they did not really appreciate what they were undertaking to do. Given that and the inadequacies of the plan, a detention order was made.

The Evidence on the Review

The Outstanding Charges

[17] In 2012 Mr. Destacamento was charged with conspiracy to traffic in methamphetamine with Edwin Mabanta, trafficking in methamphetamine (six transactions totalling approximately 100 grams), possession of proceeds of crime, possession of methamphetamine for the purpose of trafficking (150 grams) and simple possession of methamphetamine. He was released initially on strict house arrest with his son as surety. When his son was unable to continue, his employer took over the bail with the consent of the Crown. Between the employer and a couple of family members, $25,000 was pledged with $23,000 coming from the employer. Mr. Destacamento was subject to a strict residential house arrest with an exception for going to and from work.

[18] In July 2015, Mr. Destacamento was charged along with a co-accused Rovic Nafrada, with two counts of trafficking in methamphetamine (14 grams), two counts of possession of proceeds of crime, possession of methamphetamine for the purpose of trafficking and possession of proceeds of crime.

[19] Although Mr. Destacamento has not been charged with breaching the terms of his bail on the 2012 charges, if the July 2015 charges are proven he clearly was in breach and it is significant that the nature of the breach is that it is alleged that he committed essentially the same type of offences as he did in 2012.

Mr. Destacamento

[20] I did not learn much about Mr. Destacamento beyond his charges. He did not testify at the hearing. He is 61 years old and is not known to have a drug problem or be a drug user. He has a dated criminal record and there are no related offences.

Evidence of Premie Destacamento

[21] Premie swore an Affidavit and testified at the hearing. He was willing to pledge $5,400 as security for his brother’s release which was all of his savings. Premie testified that he also had $10,000 in a joint account with his wife in the Philippines and that he was prepared to pledge this as well. He denied that the money for the pledge was coming from his brother. Premie also testified about a condominium valued at $10,000 in the Philippines which he was prepared to pledge. I pointed out to Ms. Bellerose that my concern was not so much the quantity of the amount pledged but rather the supervision plan and that it might not be worth pursuing what the equity was in this condominium, given there is a mortgage, particularly as it is in his and his wife’s name

[22] Premie is 60 years old and resides in a three bedroom townhouse in Etobicoke that he rents. He lives there with his wife and a 38-year-old son who is single and his 34-year-old son who is married and whose wife also resides there. There are no children in the house. It is proposed that Mr. Destacamento sleep in the basement of this home. Premie’s sons do not always pay rent. I found this relevant as I infer from this information that Premie’s sons and daughter-in-law have to abide by the rules of the household that Premie sets, which in this case will involve inconvenience with respect to the need to call their father/father-in-law to avoid the alarm being triggered each time they come or go from the home.

[23] Premie is currently retired from a position as Supervisor of Facilities in the Engineering Department at the Toronto General Hospital and receives a Hospital Ontario pension. He still works casually at the hospital. As of the date of the hearing, he was working full-time hours as they have not yet filled his former position and he testified that he planned to continue working full-time. His wife and sons work as well. They all leave the house between 6 and 6:30 a.m. His youngest son returns home at 1 p.m. Premie gets home at 5 p.m. This means that no one would be home during the entire day to supervise Mr. Destacamento save for Fridays when Premie’s wife is home all day. I assume the daughter-in-law also works but I did not hear evidence about that.

[24] The proposal for supervision was that Mr. Destacamento live with his brother and family under strict 24/7 house arrest conditions. Premie testified that he has a monitored alarm in his residence which activates whenever anyone enters or exits the main entrance of the home. He is able to monitor the alarm remotely from his cell phone. Premie testified that if he was out of the home and his brother, Mr. Destacamento, attempted to leave the house or open the door to someone, the alarm would activate and he would receive a notification by email or text message that would mean that someone had either entered or exited the home. If he didn’t deactivate the alarm right away, police would be called by Rogers. Premie testified that he is the only person to have the code to deactivate the alarm. The proposal was that the alarm would be kept on all the time. This would mean that if anyone else at home needed to enter or leave they would need to call him to deactivate the alarm before they left or came back.

[25] The details of Premie’s alarm system were explored. At the time of the hearing the only door on the alarm was the main door. I was advised that there is also a single door that is locked with a padlock and his wife and sons and daughter-in-law use keys to open and close it. Premie testified that he planned to have an alarm installed immediately on that door as well. In the meantime he would ensure that door remained locked.

[26] This plan would mean that if Mr. Destacamento was granted bail, every time a member of Premie’s family entered the home or left the home, they would first have to call him to let him know so that he could disable the alarm and then reset it. Ms. Bellerose argued that this was quite a burden for Premie's family and that the sons might rebel. As I have already stated, they really have no control and do not pay regular rent. Furthermore, it is Premie who would bear the brunt of having to take calls, deactivate and reactivate the alarm during the week when he is working full-time.

[27] Premie admitted that if the alarm were triggered and he called Mr. Destacamento that there could still be a quick exchange at the door and he would not know what had gone on. If Mr. Destacamento said everything was fine he would reactivate the alarm but he said he would go home to be sure everything was fine.

[28] Premie proposed that when he was at work he would call Mr. Destacamento every 30-60 minutes on the land line to make sure he was home. He testified that he can only monitor incoming calls on the television on a daily basis and not outgoing calls. His monthly bill, however, indicates outgoing calls. If he saw an outgoing call that he was not familiar with he would ask who made the call and if it was not one of his other family members he would notify police. Premie admitted that Mr. Destacamento would be able to make outgoing calls on the land line without him immediately knowing this.

[29] It was proposed that the only exceptions to house arrest would be that Premie would take Mr. Destacamento with him anywhere else he went except for work. He understood that this court process could take a long time and he was prepared for this.

[30] Premie proposed that Mr. Destacamento would not be permitted to use the land line phone unless he was in his presence and that while he was away it would be understood that Mr. Destacamento not make calls unless it was to him or, in case of emergency, to 911. Premie stated that he would be monitoring the caller ID of the telephone regularly. Mr. Destacamento would have no access to a cell phone.

[31] Mr. Destacamento would not have access to a computer that could access the Internet. Premie has a computer but it is locked with a code and his sons do not have laptops.

Analysis

[32] The only issue was whether or not Mr. Destacamento had satisfied me that he should be released given the secondary ground concerns raised by the Crown before the Justice of the Peace and before me.

[33] In considering this application I began with the observations of Chief Justice Lamer in R. v. Morales (1992), 1992 CanLII 53 (SCC), 77 C.C.C. (3d) 91 (S.C.C.) at 107:

Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose "a substantial likelihood" of committing an offence or interfering with the administration of justice, and only where this "substantial likelihood" endangers "the protection or safety of the public". Moreover, detention is justified only when it is "necessary" for public safety. It is not justified where detention would merely be convenient or advantageous.

[34] Before the Justice of the Peace, the Crown had conceded that both sets of charges were not the strongest of Crown cases but that Mr. Destacamento was at the centre of the allegations in both sets of charges as being the supplier of the methamphetamine.

[35] Ms. Bellerose submitted that this admission was made in error, advising that she had spoken to the assigned Crown and reviewed the preliminary inquiry transcripts. Not surprisingly, Mr. Pierce did not agree with her that the Crown’s case is, in fact, stronger than originally represented. Ms. Bellerose conceded, however, that the Justice of the Peace did not really rely on the strength of the Crown’s case but was more focused on the strength of the sureties and the release plan.

[36] I accept that the charges are serious in that they involve trafficking of crystal methamphetamine which is perhaps the most insidious of narcotics and it is very significant that the 2015 charges are essentially the same type of alleged conduct as the 2012 charges particularly given that Mr. Destacamento was on bail when the second set of charges arose. However, as I advised counsel, whether or not the Crown’s case is stronger than as represented before the Justice of the Peace was not going to impact on my ultimate decision. Like the Justice of the Peace, my main concern was with the supervision plan.

[37] Ms. Bellerose submitted that the release plan was not good enough and that Mr. Destacamento could still re-offend. Ms. Bellerose submitted that Premie doesn’t have control over Mr. Destacamento and pointed out that he had had little to do with him over the years and that there was no evidence that he would be able to control him. However, Ms. Bellerose agreed that, without a doubt, Premie is well intentioned and committed to ensuring that Mr. Destacamento live with him and comply with strict house arrest terms.

[38] I agree that there is no evidence that Mr. Destacamento will listen to his brother Premie. I also agree that to that extent the situation is the same as it was before the Justice of the Peace. Mr. Destacamento did not testify. Accordingly, I had no evidence from him to assess his willingness to abide by a release plan. This was an important factor for the Justice of the Peace. Where I differed from his reasoning however, with respect, is that if the plan of supervision is sufficiently strong, it may be that evidence of the willingness of the accused to comply is not necessary. I found myself in the same position on this review application..

[39] I, therefore, proceeded on the basis that the application for release depended entirely on my assessment of Premie as a surety and the strength of his release plan. I made no assumption that Mr. Destacamento would be prepared to abide by the plan and not risk his brother’s money.

[40] If Mr. Destacamento is released, Premie will have no direct control over him but he will have the responsibility of ensuring that there are no breaches of the release terms. As Premie testified I found that he seemed earnest and sincere in terms of what he wanted to do and it was clear that he had thoroughly thought out the proposed supervision plan and that he understood his role as a surety. I had no doubt that he would not risk the money he was proposing to pledge and that if he had any concerns that he would call the police.

[41] Appreciating that Mr. Destacamento is presumed innocent of the charges, it is nevertheless important that it is alleged that he committed essentially the same offences in 2015 that he committed in 2012 and that the second set of charges are alleged to have been committed when Mr. Destacamento was on a residential bail with strict house arrest terms save the ability to go to work. This is notwithstanding the fact that Mr. Destacamento’s employer had put up $23,000 which Mr. Destacamento allegedly had no regard for.

[42] It is alleged, with respect to both sets of offences, that Mr. Destacamento was a drug supplier and would supply drugs to runners who would provide the drugs to buyers. In deciding to release Mr. Destacamento I found that given my confidence in Premie as a surety and the proposed terms of release, the possibility of Mr. Destacamento being able to continue to engage in drug trafficking if released on those terms would be remote.

[43] I acknowledge that it is conceivable that Mr. Destacamento would be able to receive some drugs if someone attended at the home when no one else was there. The alarm would be set off and perhaps he could come up with an excuse that would satisfy Premie. That, however, would not allow him to do anything with the drugs without passing them off to a runner. This would mean having to open the door a second time and triggering the alarm again. That would no doubt cause Premie to suspect something was awry and to call police.

[44] Ms. Bellerose submitted that Mr. Destacamento would be able to coordinate drug trafficking entirely over the phone and never have any drugs in his possession. She submitted that he was charged with conspiracy to traffic with others and that he would still know all of the phone numbers for his contacts.

[45] Although I was not referred to R. v. Smikle, 2010 ONSC 5311, [2010] O.J. No. 4514 (S.C.J.), I am aware of this decision of Wein J. and I considered it before making my decision. In that case Justice Wein found the evidence before her suggested drug trafficking at a "mid to high level" and after referring to the use of cell phones, false names and debt lists, she found that this evidence suggested that contacts could continue to be directed or involved if Mr. Smikle were able to contact them. She concluded on the secondary ground, at paras. 12 and 13, that:

… notwithstanding the level of supervision offered, I am not satisfied that there would not still exist the significant likelihood of the commission of further offences.

Even close supervision cannot at all times prevent cell phone, internet, or other communications. For that reason alone, in this type of situation, of drug trafficking at this level, pre-trial incarceration will often be required.

[46] In that case, however, the quantity of drugs was significant and two loaded handguns were also found which brought the tertiary ground into play.

[47] In this case I was satisfied that there would be no access to the Internet or a cell phone and the land line will be monitored. Furthermore, it is not realistic to think that Mr. Destacamento would have contact information memorized so that such calls could be made. If he had a cell phone when he was arrested and it had that sort of information on it, it is safe to say that it would have been seized. In any event, if Premie were to examine Mr. Destacamento’s belongings he can make sure there is no cell phone he could have access to.

[48] Furthermore, I found it significant that under the new plan Mr. Destacamento would be out of the geographical area of concern. Although, as Mr. Pierce conceded, living in Etobicoke would not remove the risk of re-offending entirely, it would reduce the risk.

[49] As Mr. Pierce pointed out, the test under the secondary ground for detention is a substantial likelihood to re-offend. The mere possibility that Mr. Destacamento might be able to re-offend is not sufficient. No bail can claim to be 100% foolproof. Furthermore, even though Mr. Destacamento bore the onus of satisfying me that he ought to be released, it is not an onus beyond a reasonable doubt. In my view, given the strength of the surety and the proposed supervision plan, Mr. Destacamento persuaded me that there is no substantial likelihood that he will be able to re-offend.

[50] For all of these reasons I granted the order sought and released Mr. Destacamento upon his entering into a recognizance with one surety; Premie, in the amount of $15,400, without deposit, on conditions including his living with his surety, Premie, at the Etobicoke address and being amenable to his supervision and the routine and discipline of his household. He would be subject to strict house arrest, 24/7; allowing him to leave the home only in the presence of his surety or in the event of a medical emergency. In addition to a prohibition on his use of cell phones or computers, to make it easier from Premie to monitor calls on the land line, I imposed a condition that Mr. Destacamento not use the land line telephone at all except to call 911 or his brother Premie. In addition, I imposed non-communication terms with all of the persons that were co-accused or whom Ms. Bellerose alleged might be involved in the alleged conspiracies along with other typical conditions.

Disposition

[51] For these reasons I granted the application and set aside the detention order made by Justice of the Peace Conacher on August 31, 2015 and ordered that Arturo Destacamento be released upon his entering into a recognizance with Premie Destacamento as surety in the amount of $15,400 with conditions but without deposit of money or other valuable security, pending his trial.

SPIES J.

Date: January 27, 2016

R. v. Destacamento, 2016 ONSC 607

Case Summary

Introduction

The Issues

Jurisdiction to Consider this Application

The Decision of the Justice of the Peace

The Evidence on the Review

The Outstanding Charges

Mr. Destacamento

Evidence of Premie Destacamento

Analysis

Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 3

Legislation 1