COURT FILE NO.: CR-18-81
DATE: 2018/06/14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DOMENICO VIOLI
Defendant
Jeremy Streeter and Aaron Shachter, for the Crown
Dean Paquette, for the Defendant
HEARD: May 25, 2018
Turnbull, J.
[1] The applicant has brought an application under section 520(1) of the Criminal Code of Canada seeking to vacate the detention order of Justice of the Peace Lee dated November 24, 2017.
[2] He is charged with 23 offences which can be generally summarized as trafficking in drugs, trafficking in association with a criminal association, being in possession of the proceeds of property knowing they were obtained by the commission of an indictable offence and careless storage of ammunition.
[3] Because of the nature of the charges, the reverse onus provisions of the CCC are engaged on this application.
Background Facts
[4] For approximately 3 years, the RCMP investigated various people and during the course of the investigation the applicant identified himself as a “made member” within the LAT Costa Nostra Italian Mafia group in southern Ontario and New York State. He later, in a secretly recorded conversation with an undercover police agent, boasted of how he had been named an underboss within that organization which effectively made him second in command.
[5] In a series of tape recorded conversations with the applicant, an undercover police agent who was also a “made member” of the Bonnano mafia family of New York City, recorded the applicant on several occasions agreeing to supply the police agent with varying quantities of drugs with the value estimated to be in excess of $400,000. The allegations are supported by very strong Crown evidence which includes surveillance, audio recordings, documentation, seizures made at the applicant's home when he was arrested and admissions. Counsel for both parties agreed that all of these facts were in evidence before the justice of the peace when he ordered the applicant detained on the secondary and tertiary grounds under section 515(10) (b) and (c) of the CCC.
[6] The Crown has contended that throughout the course of the RCMP investigation, the applicant unquestionably identified himself as a “made” member of an Italian Mafia group associated with the Luppino/Violi family of Hamilton and the Todardo crime family in Buffalo, New York.
[7] The applicant and the undercover police agent met regularly and discussed criminal opportunities available to them. In December 2016 the applicant explained to the police agent that he knew an individual who could step supply them with large amounts of illegal pills. The police agent, unbeknownst to the applicant, would obtain the funds from the RCMP to pay for the pills. Under the presumed plan the police agent undertook to redistribute the pills to his criminal associates and contacts in the United States and to share the profits with the applicant.
[8] Over an eight-month period, the applicant obtained and sold the police agent a total of 10,000 PCP pills and 225,000 pills containing methamphetamine and MDMA in exchange for $416,000 paid by the police agent to the applicant. The applicant further received a total of $24,600 US from the police agent as his share of the profits. Based on the evidence before this court it appears that all the drug transactions took place at the applicant's family home at 62 Benvenuto Crescent, Hamilton, Ontario where the applicant resided with his wife and children at the time of his arrest. The applicant also sold the police agent 26 cases of contraband cigarettes.
[9] The applicant’s wife offered herself as a surety in the sum of $1,000,000 secured by the family home in Hamilton. Anthony Battaglia, a long-time friend of Mr. Violi, offered to act as surety in the sum of $100,000. Both the proposed sureties agreed to provide 7/24 supervision of the applicant. Counsel suggested that he could be released under house arrest or alternatively house arrest with him only being permitted to leave the house with certain named people or in the presence of his sureties. Counsel further submitted that a location monitoring bracelet could be ordered to be worn at all times by the applicant.
Reasons for Decision of the Justice of the Peace
[10] The presiding Justice of the Peace gave oral reasons for his decision. Mr. Paquette, counsel for the applicant centered his submissions on the comments made by the Justice of the Peace at page 152 of the transcript of proceedings. They read as follows:
“the plan with Mrs. Violi as surety is not strong enough to convince the court that the substantial likelihood of reoffending can be addressed. The allegations, the strength of the Crown's case, and the public interest in drug related matters, if this court was to release Mr. Violi under these terms, it is my opinion that it would bring the administration of justice into disrepute.”
Position of the of the Applicant
[11] The applicant has submitted that the justice of the peace made the following errors;
[1] He detained the applicant on the secondary and tertiary grounds because of his concerns with Sandra Violi, the applicant’s wife, as the primary surety. His reasons suggest that the proposed plan was not efficient in terms of the level of supervision but in the ability of the proposed sureties to carry it out in his oral reasons. The proposed plan was one of house arrest with 24 hour supervision. Both Sandra Violi and Anthony Battaglia testified that they had no prior knowledge of the applicant's involvement in organized crime. This factor seems to have weighed heavily in the aforementioned conclusion of the Justice of the Peace given his comments to the effect that while he could understand why Sandra Violi may not have been aware of the applicant's alleged activities, “that does not make the spouse the best surety”. The applicant argues that based on the principle enunciated in the case of R. v. Tsekouras, [2012] O.J. No. 6761 (SCJ) at para. 26, a lack of knowledge of an accused person's alleged involvement in a criminal organization is not fatal to a party's ability to act as surety.
[2] The applicant argues that the Justice of the Peace erred in law when he conflated the allegations of drug trafficking with drug trafficking in association with a criminal organization. Mr. Paquette argued quite correctly that being a member of a known criminal organization is not a crime. It is the commission of a crime in conjunction with or for the benefit of the criminal organization which triggers the[^1] operative sections of the criminal code. He then helpfully summarized each of the clandestinely recorded conversations between the undercover police agent and the applicant and noted that there was no discussion of the transactions being done at the request, direction or control of the organized crime families nor was there any evidence that the criminal organizations were going to get any portion of the profits. Hence, he submitted that this was a drug transaction between two individuals who were ostensibly going to share the profits 50/50.
[3] He noted that the other three individuals jointly charged with Mr. Violi with trafficking in several counts of the information1 have been released on bail pending their trials.
[4] The applicant further submits that the recent case R. v. Antic, 2017 SCC 27 has articulated the principle that reasonable bail refers to the right not to be detained without just cause and the right to reasonable terms. Mr. Violi has no prior criminal record and there is no involvement of firearms or violence related to the offences. The tension will only be justified where an appropriate form of release in terms cannot mitigate the enumerated risks.
Position of the Crown
[5] The Crown notes that the applicant does not allege a material change in circumstances or offer any new evidence which would undermine the basis for the original detention order. The Crown submits that there was ample basis on the evidentiary record before the justice of the peace to find that the applicant failed to meet his onus on the secondary and tertiary grounds. Mr. Streeter argued that this is an overwhelming case involving the trafficking of drugs over a long period of time while the applicant was a self-admitted member of a Cosa Nostra mafia crime family. Mr. Streeter noted that to have a court find that the offences were committed in association with a criminal organization, the courts have held that it is necessary to simply establish a connection or link between the offence and the underlying criminal association.
Analysis:
[6] This court does not have an open ended discretion to vary the decision of the justice of the peace concerning the applicant's detention. Sections 520 and 521 of the criminal code do not establish a de novo power of review. In R. v. St-Cloud 2015 SCC 27, [2015] 2 SCR 328 at page 332, the court determined three circumstances where the judge may decide to exercise his/her power of review. First, where there is admissible new evidence if that evidence shows the material and relevant change in the circumstances of the case. That is not the case before this court on this application. Second, where the impugned decision contains an error of law. That is the essence of the applicant’s argument in this application. Third, where the decision is clearly inappropriate.
[7] I do not find that there was an error in law made by the Justice of the Peace on the secondary ground in finding that the applicant had failed to meet his onus on the secondary grounds. The evidence identifies the applicant as a high-ranking member of the criminal organization who was brokering drugs in large quantities and for large sums of money. The tape recordings of the applicant with the police agent provide overwhelming evidence of his position within that organization, his participation in the sale of drugs on several occasions to the police agent, and the exchange of money after the delivery of drugs. The applicant used his family home to conduct the drug transactions. Photographs taken during the search of the applicant’s home incidental to his arrest show numerous Blackberry cell phones, well known for the ability to be encrypted, to have been located in the home
[8] Mrs. Violi has sworn that she was unaware of her husband's activities within the residence as it related to the trafficking of drugs.
[9] Mr. Battaglia testified that he was a close friend of Mr. Violi for approximately 25 years yet he did not suspect his close friend was a member an organized crime group or family. He admitted that he did know Mr. Violi’s father was a known mob member and also acknowledged that Mr. Violi’s brother Giuseppe was a friend but denied knowing that he too was a member of a criminal organization. In his cross examination of Mr. Battaglia, Mr. Streeter had him acknowledge that criminal organizations are largely secretive in nature. The court at page 110 asked Mr. Battaglia if he agreed that the mafia was a secretive organization “so that with any secretive organization, somebody could be a member of that organization and good friends with you (Mr. Battaglia), as has happened in this case, and you not know anything about it.” Mr. Battaglia agreed with that suggestion.
[10] I do not find it was an error of law for the Justice of the Peace to take into consideration the applicant's wife's proclaimed ignorance about her husband's alleged illegal activities in their shared family home. He clearly questioned the reliability of her evidence. At page 148 of the transcript, while giving his oral reasons, he rhetorically asked:
And how you live in the same household and not have any inkling that the person you live with, that you go to bed with every night, has not allegedly some involvement in the criminal family?
[11] And at page 149, he also posed the question of “how does one become Number 2, in a criminal enterprise without a substantial contribution to that enterprise?
[12] He considered her lack of knowledge relevant to assessing her suitability as a surety and her ability to prevent the applicant from continuing to commit offenses or communicate with members of the criminal organization while on bail. I would note that this is even more troublesome with Mr. Violi’s admission in the audio recordings that he was an underboss and had beat out thirty other people for that position. It is difficult to imagine that holding such a position, he would be allowed to or want to benignly sit at home pending trial.
[13] The questioning of Mr. Battaglia by the Justice of the Peace[^2] confirmed his concern in this respect. In essence, the Justice of the peace found that the applicant's level of entrenchment within la Cosa Nostra organized crime in his willingness to traffic substantial amounts of valuable in illegal drugs within his family home gave rise to secondary ground concerns that were not sufficiently mitigated by the sureties or the plan proposed. Mr. Streeter had articulated some of the concerns in his submissions to the justice of the peace. At page 145, he suggested that even if Mr. Violi had 7/24 supervision while being ordered to wear an ankle bracelet, a good family friend or family member could come to the home and then retire to Mr. Violi’s office where they could talk in private.
The Tertiary Ground
[14] I further find the justice of the peace made no error in law in detaining the applicant under the tertiary ground.
[15] In R. v St-Cloud, supra, at para 71, the Supreme Court stated that the personal circumstances of the accused may be relevant and one of those particularized was “membership in a criminal organization”. From the evidence it appears the applicant is a high-level member of a well-established criminal organization. He was engaged in the ongoing sale of significant quantities of dangerous drugs valued at several hundreds of thousands of dollars, with an individual, who not co-incidentally was also a “made member” of a criminal organization family. The transactions took place within the applicant’s home. The evidence against the applicant on the drug trafficking charges and the ammunition charges is very, very strong. Mr. Paquette, in his very fine submissions, acknowledged that just on the drug trafficking charges alone, Mr. Violi was very probably looking at a significant period of imprisonment. The Justice of the Peace was entitled to conclude his release would bring the administration of justice into disrepute. A reasonable member of the public who was aware of all the circumstances as they were presented to the justice of the peace would expect the result to be a detention order for Mr. Violi.
[16] In R v St.-Cloud, supra, the court stated that section 515(10) (c) should not be interpreted narrowly and should not be applied only in rare cases for exceptional circumstances or to certain types of crimes. The four circumstances listed in that section of the criminal code are not exhaustive and from a review of the record I am satisfied the learned Justice of the Peace did take the four enumerated circumstances into careful consideration. While he did not review each of them in the order listed in the CCC, he did determine that the Crown's case was very strong. He determined that the gravity of the alleged offenses involving the trafficking of dangerous drugs would result in a significant prison sentence. While he arguably may have misapprehended the evidence relative to the issue of whether this series of drug sales involved criminal activity associated with a criminal organization, it is not clear from the record that he did so. He did consider the circumstances surrounding the commission of the offenses and in particular the fact that the offenses are alleged to been committed on an ongoing basis in association with a perceived “made member” of another recognized organized crime family. The allegations involve the trafficking of over $400,000 worth of drugs. The evidence showed that over 75 kilograms of methamphetamine and MDMA was sold in pill form.
[17] I do not find that the learned Justice of the Peace erred in law or fact in ordering the detention of the applicant on the tertiary ground.
Conclusion:
[18] The application is dismissed.
Turnbull, J.
Released: June 14, 2018
COURT FILE NO.: CR-18-81
DATE: 2018/06/14
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DOMENICO VIOLI
ENDORSEMENT
Turnbull J.
Released: June 14, 2018
[^1]: Counts 5,9,13 and 17. [^2]: Transcript