COURT FILE NO.: CR-17-288 DATE: 2018/07/13 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – Michael Vitello Accused – and – Salvatore Raia Accused

Jeffery Richardson for the Crown James Harbic and Robert Harbic for the accused Michael Vitello Samir Adam for the accused Salvatore Raia

HEARD: May 14-18, 22-25, 29, and 30, 2018

REASONS FOR DECISION

C.D.A. McKINNON, J.

[1] The accused Michael Vitello and Salvatore Raia are jointly charged with conspiring to kidnap, sexually assault, and murder Sonia Bernard/Vitello, between the dates of December 20, 2016 and January 20, 2017.

[2] Michael Vitello is also charged with committing an assault on Sonia Bernard/Vitello between the 1st day of August 2016 and the 31st day of August 2016. He is charged with committing mischief by willfully interfering with the lawful use of certain property owned by Sonia Bernard/Vitello, including clothing, jewellery and other personal items, the value of which did not exceed five thousand dollars, between the 1st day of November 2016 and the 8th day of November 2016. He is charged with committing mischief by willfully damaging Sonia Bernard/Vitello’s motor vehicle by putting sugar in the gas tank on the 7th day of November 2016. He is charged with committing mischief by willfully interfering with Sonia Bernard/Vitello’s German shepherd dog, the value of which did not exceed five thousand dollars, on the 8th day of November 2016. He is charged with watching or besetting Sonia Bernard/Vitello at her place of work, between the 20th day of December 2016 and the 20th day of January 2017. He is charged with watching or besetting Sonia Bernard/Vitello at her place of residence between the 6th day of January 2017 and the 20th day of January 2017.

[3] At the commencement of trial, Michael Vitello pleaded guilty to willfully damaging a 70-inch television belonging to Sonia Bernard/Vitello, the value of which did not exceed five thousand dollars, between the 1st day of April 2016 and the 30th day of June 2016. He pleaded guilty to willfully damaging interior walls and doors in the residence of Sonia Bernard/Vitello, the value of which did not exceed five thousand dollars, between the 1st of May 2016 and the 30th day of November 2016. He pleaded guilty to willfully damaging a cellular telephone belonging to Sonia Bernard/Vitello, the value of which did not exceed five thousand dollars, between the 1st day of August 2016 and the 31st day of August 2016. He pleaded guilty to knowingly transmitting intimate images of Sonia Bernard/Vitello without her consent on the 8th day of January 2017. He pleaded guilty to failing to comply with his bail conditions that he not communicate with Maria Barbuto, between the 26th day of January 2017 and the 9th day of March 2017. He pleaded guilty to breaching his bail condition not to communicate with Arianna Vitello between the 26th day of January 2017 and the 9th day of March 2017 and he pleaded guilty to breaching his bail condition by communicating with Nicholas Vitello between the 26th day of January 2017 and the 9th day of March 2017.

Sonia Bernard and Mike Vitello

[4] Sonia Bernard worked as a dancer at the Playmate Club on Montreal Road in the City of Ottawa. Mike Vitello frequented the Playmate Club and was very attracted to Sonia. He began dating her. Their relationship blossomed and they fell in love.

[5] Sonia had two children, an older boy and a younger girl. The girl’s name is Melika. Melika’s father had been killed in a car accident and she lived with Sonia. Mike was married with three children, two boys and a girl, the eldest son named Nicholas, a daughter Arianna and a younger son named Antonio.

[6] Mike left his spouse and took up residence with Sonia. They lived in a rented house in Greely, Ontario. Sonia’s daughter Melika lived with them full time. Mike’s three children would visit every second weekend.

[7] Mike encouraged Sonia to change professions, which she did. She attended college and eventually received a diploma in Interior Decoration and Design. While doing so, she also worked at Nygards and then Cerateck. Thereafter she worked for Mike, managing his books.

[8] Mike was in the home renovation business. His company name was MPV Construction. Sonia worked for Mike out of an office inside their home.

[9] After living together for two years in the rented house in Greely, Ontario, Sonia and Mike found a bungalow in White Lake, near Arnprior, Ontario. They were smitten with the beauty of both the house and property and purchased it.

[10] Mike and Sonia were together for about seven years. The first year was happy and then Mike began to exhibit a temper. He would denigrate Sonia saying to her “You are fucking useless”; “You are fucking stupid.” The relationship was up and down. Things would go fine for three or four months then Mike would become silent and ignore Sonia. He would leave the home. He would have affairs with other women. She was faithful to him.

[11] His aggression, his swearing and his threatening tone caused Sonia to separate from Mike in 2014. She took her daughter out of school and went to a shelter on Carling Avenue in the City of Ottawa. She was at the shelter for about five weeks, then the authorities helped her find a small townhouse in Nepean where she stayed for about two months. This was highly stressful because she had no money and at the time was pursuing her diploma in Interior Decoration and Design.

[12] Mike asked to see her. They met. He promised to change. She moved back with him to White Lake on condition that he agree to see a therapist, which he did. Things were better than they ever had been and the blissful state of affairs lasted for about one year, after which the two married on August 8, 2015.

[13] After the wedding, things changed again. Sonia transformed her way of life. Mike had never liked the fact that she smoked so she quit smoking. She also quit drinking. Mike was a drinker and would become intoxicated at least twice a week. Sonia took up running and yoga. After going to yoga, Sonia would come home to find Mike unhappy and drinking. Mike bought Sonia a German shepherd with whom she could run. Mike did not like the dog and would often discipline the dog by punching it in the face or yelling at it. Sonia loved the dog.

[14] When Sonia quit drinking, Mike became even worse. He began to drink more. He wanted Sonia to drink but she would not. Mike reverted to denigrating Sonia, calling her “useless” and “stupid”. Mike did not appreciate Sonia’s new found healthy lifestyle. He was mean to her. He would break things in the house.

[15] On one occasion, while talking on the telephone to a customer who had not paid him, Mike flew into a rage and punched and broke the 70-inch television set owned by Sonia. On occasion, he would break doors in the house. On one occasion, she herself was so angry at Mike that she broke a door, although that was the only occasion she broke anything in the house. Mike would frequently grab Sonia’s cellphone and throw it on the floor, cracking the screen. On one occasion in 2016, he grabbed her arm roughly in order to get the cellphone and threw it on the floor. Sonia became increasingly fearful of Mike.

[16] In early 2016, Mike and Sonia invested $10,000.00 in a company called MJ’s Kitchen and Bath, located in the town of Arnprior, Ontario. This company was owned by Oscar Giroux and Adam Newton. Sonia would have employment at MJ’s and Mike and Sonia would enjoy 20 percent of the profits over expenses. The agreement confirms Sonia’s evidence that Mike and Sonia were investing in the business together.

[17] It was part of the agreement that renovation contracts arising from MJ’s would be steered to Mike’s company, MPV Construction.

[18] Adam Newton withdrew from the business when he became a new father, leaving Oscar to run it along with Sonia. Oscar lived in Kanata and would arrive at the business at about 10:00 a.m. each morning. Sonia would open the business at 9:00 a.m. and would be alone for about an hour prior to Oscar’s arrival. The business was located in a small strip mall near a fitness facility and a large recreation centre called the Nick Smith Centre.

[19] Mike became ever more deeply unhappy during the year 2016. He would attend MJ’s and engage in loud arguments with Sonia in the presence of customers, which disturbed Oscar. He would look unkept and on one occasion, he came in with all his knuckles covered in blood. Oscar was receiving numerous complaints about Mike from clients and in the summer of 2016, he decided to terminate Mike’s work through MJ’s.

[20] The unhappiness in the marriage escalated during the fall of 2016. Sonia noticed that some of her clothing and favourite things were missing, including her good running shoes. More disturbingly were photographs of the father of her daughter and other personal items, including some favourite pieces of jewellery. She was missing the things she loved the most, including a watch and a bracelet. Sonia had winter tires for her Ford Fiesta that went missing. Mike had sold them.

[21] She became increasingly frightened of Mike. She begged him to see a doctor. She could not bear her life with him anymore. He had become extreme in his conduct.

[22] The final straw was when Sonia went to her car on the morning of November 7, 2016 and it would not start. Finally, it started. She drove to a gas station to get gas. When she opened the gas tank, she saw white powder around the tank. When she got to MJ’s, she showed it to Oscar. Oscar tasted it and realized immediately it was sugar. The car was taken to Canadian Tire where it was confirmed that the gas line had been filled with sugar. It cost $1668.00 to repair, which Sonia claimed on her insurance policy.

[23] Mike had been telling Sonia he wanted her to leave the home in White Lake. After the incident with the sugar she left immediately. She lived in a motel for a week, then lived with Oscar’s parents for two weeks, then found herself a townhouse in Arnprior on Wolff Crescent into which she moved with her daughter.

[24] She left the German shepherd in the yard at the home in White Lake, telling Mike she would pick it up the following week. Mike informed her that the dog had gone missing. She was frantic and phoned all the local shelters asking if they had possession of her dog, all without success. She phoned the police.

Chris Richards

[25] Chris Richards had worked in Ottawa for a company called “Your Reno Guys”. He is newly married to a woman with whom he had been in a relationship for seven years. He married on December 28, 2016.

[26] He wanted a change from his employment in Ottawa. He spoke to Oscar Giroux at MJ’s in Arnprior asking if he knew of any opportunities for employment. Oscar introduced him to Mike Vitello. Mike hired Chris. Chris worked for Mike for about eight months prior to Mike being charged with these offences.

[27] Chris was Mike’s only employee. Their work was mostly in Arnprior and in Ottawa. Chris owned a station wagon. His habit was to drive to Mike and Sonia’s home in White Lake at about 5:30 a.m. and wait for Mike to come out to get him or to text or phone him, at which point they would meet at Mike’s large combination garage and shop, which abutted the bungalow. They would take out the tools and materials that they required for the day’s work and place them in Mike’s truck. The rear seat and bed of the truck was always full of materials. They would then go to Arnprior for coffee. Mike preferred McDonald’s and Chris preferred Tim Horton’s, so they would split their attendances at these establishments equally.

[28] Chris was paid $25.00 per hour for his work and paid every Friday, initially by cheque and later on by Interac transfer. Mike never failed to pay Chris. As Mike came to know Chris better, he began to confide in him, including about his relationship with Sonia. He told Chris that the relationship lacked intimacy.

[29] Chris learned that Mike had invested in MJ’s and in return Mike would get work from MJ’s. As the months went on, the work dried up. Chris was unaware of why that happened. Chris had been to MJ’s a number of times and had met Oscar Giroux and Sonia. When he was not busy with jobs, Chris was given work to do at Mike and Sonia’s home at White Lake. He built shelving, repaired doors and other chores as directed by Mike. Sometimes Mike worked with him in doing repairs to the White Lake home.

[30] The home was very neat. Part of the basement was finished, with a large television room and a bedroom for Nicholas, Mike’s eldest son who was aged 20 when Chris met him. Nicholas would work with Mike from time to time. There was an unfinished portion of the basement with solid wooden posts acting as supports for the floor above. Beside the posts, there was a large freezer.

[31] Mike told Chris about his unhappiness in his marriage and disclosed the fact that there had been a previous separation. He told Chris that Sonia had taken a lot of stuff that had belonged to him and that it would never happen again.

[32] As time progressed, Chris found that Mike drank more and more. Doors in the home had to be replaced because Mike had kicked them in. He was aware that Mike had smashed Sonia’s phone. He was aware that Mike had attended anger management. Mike disclosed the fact that he smashed the 70-inch television when a customer could not pay him. Mike was less concentrated on work. Fewer things were being accomplished.

[33] Mike called himself “very vindictive”. Mike was proud of the fact that he had put sugar in Sonia’s gas tank. He stated that he could not find a funnel and that a lot of the sugar had fallen to the ground. Photos taken by Sonia with her cellphone when she discovered problems with her gas tank on November 7th confirm this, including photos of sugar on the ground near where her car was parked beside her home.

[34] On the day that the sugar was put in the tank, Mike and Chris ended up at Canadian Tire at the same time Sonia was there, quite by accident. Chris stated that nothing was said and Mike and Sonia treated each other like total strangers. Mike was happy that he was costing Sonia money and putting financial strain on her.

[35] The next thing that occurred involved Sonia’s German shepherd. Mike and Chris placed the German shepherd in Mike’s truck and released it on the highway near Upper Dwyer Hill Road between Arnprior and Ottawa. The dog has not been seen since.

[36] Mike informed Chris that he knew Sonia was living on Wolff Crescent in Arnprior. He told him that he had followed her there one day after work. This was confirmed by Mike’s friend John Nicoletta with whom Mike worked. Mike had been married to John’s cousin, Maria Barbuto.

[37] John Nicoletta testified that during late 2016, Mike was in a bad mood and edgy, complaining that he was always working and never getting ahead. He was upset about Sonia. He told John he had driven by Sonia’s house and saw his television on her wall. He was upset that she was living like a queen and he was down in the dumps. He wished to ruin her financially. He was telling people not to buy anything at MJ’s and that if he saw an ad for MJ’s, he would place an ad beside it offering a better deal.

[38] Mike told Chris that he did not know where Sonia was getting the money to live. He was frustrated that she could afford things without his help, including finding a place to live and repairing her vehicle. He told Chris that Sonia was living in a nice place and asked Chris if he could look up the address to see whether she was renting the place or had bought it. Chris used his cellphone to inquire. He also asked Chris if he could break into her residence but Chris declined. He asked Chris if he could pick the lock and Chris went on YouTube to look at videos to learn about lock picking. He said that the idea of lock picking came up more than once.

[39] Chris testified that these discussions about lock picking and breaking into Sonia’s residence and breaking into MJ’s Kitchen and Bath occurred following the day he got married, which was December 28, 2016. Breaking into MJ’s arose because Mike was complaining that he was not receiving what he had been promised. With respect to breaking into Sonia’s residence, Mike told Chris the reason he wanted to break in was to abduct her from her residence. Chris told Mike that it would be hard to accomplish. Chris had the sense that Mike wanted to get revenge sooner than later and that he had a mental timeline. Mike wanted to get things done so that he could get back to work.

[40] Chris testified that there were a number of discussions about abducting Sonia. Mike informed Chris that there were no surveillance cameras at MJ’s or at Sonia’s home. Sometime in mid-January 2017, Sonia went to Toronto. Mike wanted Chris to find out the reason she was there. Chris found photos of her in a hotel on her Facebook account and showed them to Mike while they were driving in Mike’s truck.

The Plot

[41] Mike’s ever increasing jealousy and resentment of Sonia came to fruition on Thursday January 19th, 2017. Mike informed Chris that the next day, Friday, January 20th, Chris would meet Mike in the morning as usual, they would then drive into Arnprior, Mike would drop Chris off at the Nick Smith Centre, Mike would go to MJ’s before Oscar would arrive, he would knock Sonia out, and tape her with duct tape and put her in the back of his truck. He would throw the keys to her car on the ground. Chris would walk from the Nick Smith Centre to Sonia’s car and drive it back to White Lake. Mike would then tie up Sonia to a wooden pillar in his basement and sexually assault her. He would “fuck her bloody”. He also told Chris that after Chris arrived in the morning, they would clean out Mike’s truck and also the garage so that Sonia’s vehicle could be parked inside.

[42] The conversation with respect to the plan for the Friday morning took place in Mike’s dining room. Chris drank Jack Daniel’s with Sprite and Mike had two Jack Daniel’s.

[43] That afternoon, after the conversation, Chris drove back to his home with a trailer loaded with shelving attached to his vehicle.

[44] Chris testified that as far as work being accomplished on the Thursday, the only work done was fixing a pump on a plow to be used for snow removal, using Mike’s truck. Chris worked on fixing the pump. When it was ready to be attached, it did not work and required new parts.

The Warning

[45] Immediately upon returning to his home Chris warned Sonia that she was in danger. He texted her that Mike had been following her and knew where she lived. He told her that he thought that Mike was trying to make her pay for whatever he felt Sonia did to him. He warned Sonia to never be alone, to “get Oscar to open the store (tomorrow for sure!)” and for Oscar to follow her home, to have alarms installed and have her daughter dropped off at a neighbour’s until Sonia got home. He informed her that he and Mike had not been working much and that Mike was drinking a lot. He informed her that he and Mike had no work the next day and Mike had planned on going into MJ’s and that is why Oscar must be present. He told Sonia “DO NOT TEXT MIKE!” He stated, “As I am writing this, I hope you will let it sink in as I am getting chills typing it. I don’t want him to know that I am telling you this as it could put me in harms way and I would rather be anonymous.”

[46] Sonia asked Chris what happened to her dog. Chris told Sonia that her dog was taken to Ottawa and dropped off on the way. He had no idea where but knew that the dog was not killed.

[47] Chris told Sonia that he must find other work because of the situation with Mike. Sonia told Chris that she was very afraid of Mike. Chris stated he cannot involve the police and confessed that he was afraid of Mike and that he was only with him because he needed the work.

[48] Sonia stated she could help Chris find work. He told her that he “can play Mike like Mike plays everyone else but it is mentally very hard and causes a lot of stress.” Chris stated, “I don’t want anyone to get hurt. I would never wish harm to anyone so if I think it might come to that, I will step in.” He told Sonia that Mike wanted to bring down MJ’s, telling everyone that MJ’s owed him money.

The Plot Thickens

[49] Unknown to Chris, on the Thursday evening, Mike drove to Ottawa to pick up an old friend from his school days, Salvatore Raia, nicknamed “Sam”. He brought Sam back to his home in White Lake where they drank and ate together. Cellphone records show that Mike and Sam had been talking a great deal during the previous month.

[50] When Chris arrived the next morning, Friday January 20th, at his usual time of 5:30 a.m., he was hoping that Mike might have reconsidered his plan. He received either a text or a phone call around 6:00 a.m. from Mike, who asked him to come into the house. When he entered the house, he saw an individual he did not know. Mike introduced him as an old friend. The friend informed Chris that he worked as a janitor at the Catholic School Board, that he had been in prison before, that he was going through a separation like Mike was going through, that the night before they had been drinking, and that he was on anti-depressants. He used to be a hairdresser or a barber. He and Mike were drinking coffee.

[51] The plan was discussed. The plan had changed. Mike’s friend would go into MJ’s because he would not be recognized. He would be wearing a balaclava. He would knock Sonia unconscious with a baseball bat and bind her with duct tape, then Mike would go in and together they would carry Sonia’s body to Mike’s truck. Mike would throw Sonia’s keys beside her car. Chris would be at the Nick Smith Centre and he would walk to Sonia’s vehicle and return to Mike’s house in White Lake, taking back roads, and put Sonia’s car in Mike’s garage. They would then bring Sonia to the unfinished part of the basement where she would be physically and sexually assaulted. Mike asked if either of them wanted to participate. Chris refused to be a party to the physical and sexual abuse because he was newly married, in response to which Mike’s friend questioned his reliability.

[52] There was a discussion between Mike and Sam as to how Sonia would be rendered unconscious. Sam said he could do it with his fists. Mike insisted on doing it with a baseball bat to be certain that she would be rendered unconscious. She would then be taped with duct tape and carried to Mike’s truck. She would be carried to the back door of MJ’s to the truck. Once back into the basement, and after being sexually and physically abused, Sonia would be dismembered, then frozen, and subsequently her body parts would be put into a wood chipper, which would be “far less messy”.

[53] Chris testified that it was Mike who spoke about the dismembering, freezing and wood chipping of the body but Mike explained that the idea came from his friend. Chris was unaware that any arrangements had been made to obtain a wood chipper.

[54] During the discussion, Mike’s friend kept asking if Chris could be trusted as he refused to take part in abusing Sonia. He said his reliability was questioned two or three times. Mike told his friend that Chris could be trusted, that Chris was a good friend and had the password to his phone, his garage and his house. Chris knew the password to be 696969.

[55] Chris observed that Mike’s friend had a large hunting knife about a foot long in a sheath. It was on his person, in his jacket pocket.

[56] On the Friday evening, it was planned that Mike’s son Nicholas would be coming to stay for the weekend, which would provide Mike with an alibi.

[57] The conversation in the house lasted for about a half hour to forty five minutes.

[58] Chris testified that Mike then went downstairs to brush his teeth and he went outside to start clearing out the garage. A few minutes after Chris started cleaning out the garage, Mike and his friend came out to help. They spent about a half hour cleaning out the garage. After cleaning out the garage, they then cleaned out the back of the truck. A tile cutter, a radio, a bag of cement and other items were removed. There were also items taken out of the back seat of the truck. It took about twenty minutes to clear out the truck. All of the items were placed in the shop. The shop was located in the large garage.

[59] A thick moving blanket or tarp was placed in the back seat of the truck. A baseball bat that was located in the garage was also placed in the back of the truck. A roll of duct tape was placed in the truck. Chris saw Sam’s knife in the truck. All three were dressed in bush jackets and jeans.

[60] Chris testified that they then left the residence and went to McDonald’s for coffee. Chris was seated behind Mike, who was driving, and Sam was in the passenger seat. They drove to Canadian Tire to get gas, after which they sat in the Canadian Tire parking lot. He recalled that they left the shop at around 7:30 a.m. and that it took about 15 minutes to get to Arnprior and go to McDonald’s, then another five minutes to get to Canadian Tire. It took about 10-15 minutes to fill the truck with gas. They then went to the parking lot and sat and waited for MJ’s to open. He recalls they waited about a half hour when a police cruiser came by, at which time Mike left the parking lot.

[61] They then went to the Nick Smith Centre for a few minutes, then left and drove towards Sonia’s house. On the way to Sonia’s house, Mike stopped for a bathroom break. Mike drove on and parked his truck beside a large apartment complex, very near Sonia’s townhouse. It was Mike’s idea to go to the apartment complex and park.

The Plot is Foiled

[62] Chris testified that they were parked in the apartment complex for about one to one and a half hours. Chris noticed Oscar drive by in his truck and saw Mike duck down so that he would not be seen. Oscar drove back to Sonia’s and then returned again. He recollects that Oscar drove by, followed by Sonia. This was about one hour and twenty minutes after Mike had parked in that spot.

[63] When Oscar drove by returning to Sonia’s he made eye contact with Sam. He believes that Mike’s friend saw Oscar because of Oscar’s eye movements.

[64] Mike’s friend said something was not right and that nothing was going to happen that day. Mike said something had to happen that weekend. He asked Chris if Oscar had seen them and Chris told them he had.

[65] After Oscar returned to Sonia’s and then Oscar and Sonia came driving by, about two to five minutes had passed. He did not recall whether Oscar or Sonia was driving in front.

[66] Mike then left the parking lot and drove through back roads to White Lake. During the drive, Mike got a phone call from John Nicoletta asking where Mike was. The call came in when they were near Highway 17. Mike told John that he was in Fitzroy Harbour doing a bathroom floor. Chris recalled that the call lasted approximately five to ten minutes.

[67] After the call was terminated, there was a discussion about creating an alibi. Mike told Chris that he should say that he had gone plowing in the morning with Mike and that he then went back to Mike’s house to do painting with Mike’s friend. He had a to-do list for repairs to Mike’s house stored on his phone.

[68] Upon arriving at Mike’s house, the baseball bat was returned to the garage and Mike’s truck was loaded with all the garbage that had been removed from it earlier that morning. Mike and his friend then got into the truck. They planned to go to a dump in Carp. Chris said he had to go home and that it would look weird if three people went to the dump.

[69] Chris was unsure about what happened to the duct tape or the knife. He recalled it was discussed that after Sonia was abducted, Mike would pick up her daughter Melika and bring her for supper at his place. It was also discussed that after Sonia was abducted, Mike would text Oscar on Sonia’s cellphone to tell him she would be at her grandmother’s for the weekend because her grandmother had fallen ill.

[70] On that morning, at 9:42 a.m., Chris texted Sonia saying, “Don’t text me, I’ll text you in a bit with info” and at 12:56 p.m., he texted her saying that he was home “I know for sure Mike intends to hurt you, but I am not sure to what extent…Thank Oscar for me for being at your house this morning, I’m sure you guys saw us sitting in the truck, again if I am involved in anything, then Mike will definitely be after me, he has one of his friends with him and they are on their way to the Carp Dump (as far as I know). If you want to talk you are welcome to come to my place (with Oscar) but try and take someone else’s vehicle. Mike knows both of yours and if he ever saw one here….No police, unless you send them to his place tonight. I think this is my last day around him, he has gone too far for me to stay around and I don’t need the stress.”

[71] Sonia asks, “Why is he following me? Why were you guys close to my house?” Chris responds, “I think Mike intends on abducting you. Again I am not sure, but he backs off when anyone is around. I didn’t intend on being this involved but I am glad I am, as it provides you/me with some kind of comfort. But my stress level is berserk because of it. I don’t think Mike is going to stop. He needs to be caught doing something stupid and I can’t be involved doing it. His friend is intelligent and suspicious, this is why I have to back out of the situation, he will try again, all I can suggest is to have a tracking device/camera/911 on speed dial/whatever it takes. I don’t think the police can do anything at this point.” Sonia texts Chris saying that Mike needs to get caught and she does not know what to do. Chris states, “Me either and when I leave he is going to suspect something is up… this is why I am stressed.”

[72] Chris goes on to tell Sonia that he wishes to find alternative work apart from Mike and that he would go to the Ottawa Home Show on the weekend and distribute cards to attempt to get work. He asks if Sonia can provide him with any work and she responds that she might be able to help secure him some work.

[73] Shortly after, Chris was contacted by the Arnprior OPP and invited to attend their detachment and make a statement. He did so. He confirmed there was a plot to kidnap and harm Sonia Bernard.

Corroborative Evidence

[74] There is an elaborate banquet of corroborative evidence in this case.

[75] After Chris’s cellphone was taken from him, with his consent, the police authorities analyzed its contents. The analysis was done long after Chris Richards gave his statements to the police.

[76] The browser history of his Internet searches is highly corroborative of his testimony. On January 12th, he is searching “How can I find someone and locate a person’s address” and “108 Wolff Arnprior” and “Arnprior Real Estate Homes and Condos.” On January 13th, he is searching “lock picking.” On January 17th, he is searching “bump key set” which is a device that will penetrate most common locks of doors. On January 19th, he is searching “how to text/email anonymously for free.” On January 20th, at 12:39 p.m., he is searching “Arnprior Police.” He testified that after he was contacted by police on Friday January 20th in order to give a statement, he Googled Arnprior Police in order to find the address as he had never been there before.

[77] These Google searches corroborate the evidence he gave that Mike Vitello was asking him how to break into places and determining where Sonia was living and whether she owned the townhouse or rented it. The Google search “how to text anonymously” lends credence to the fact that he did not want to be involved in the situation, yet wished to warn Sonia about the danger she was in. In his texts, he told her he wished to remain anonymous.

[78] On Friday January 20th, Sonia, out of fear, and after discussing the situation with her business partner Oscar, contacted the Arnprior Police to tell them of the plan by her husband to kidnap and harm her. Police attended at Mike and Sonia’s White Lake residence and arrested Mike. This occurred after the interview they conducted with Chris Richards.

[79] Following the arrest of Mike, police took numerous photographs of his truck, his garage and shop, and his house. Chris Richards had never seen these photographs until trial. The photographs are highly confirmatory of his evidence, including an image of a large hunting knife located in the front seat console of the truck, a McDonald’s coffee cup, a balaclava in the front seat, a heavy moving blanket or tarp and duct tape in the back seat and a baseball bat in the garage. The back of the truck was filled with the debris that had been removed from the garage that morning.

[80] Photos of the basement show the solid wooden posts and freezer mentioned in the evidence of Chris Richards. Photos of the garage and shop show the radio, the cement and other items that Chris Richards testified had been moved to the garage and shop on the morning on the 20th. The garage had been cleaned out so that an extra vehicle could be parked inside.

[81] Police also investigated and found various videos of some of the places mentioned in Chris Richards’ testimony. Among videos secured were those from the White Lake Store, very close to the residence of Mike and Sonia Vitello. At 5:15 a.m. on January 20th, Chris Richards’ station wagon can be seen travelling by the White Lake Store. At 7:37 a.m., there is a video from the Canadian Tire Gas Bar showing Mike Vitello purchasing gas. He is dressed in a bush jacket. A video from the Canadian Tire parking lot between 7:47 a.m. and 8:03 a.m. shows Mike Vitello’s truck sitting in the parking lot. It also shows a police car entering the parking lot and Mike Vitello’s truck leaving.

[82] Video from the Canadian Tire store taken at 8:03 a.m. on January 20th shows that the truck owned by Mike Vitello had been cleaned out of all debris except for one pail, again corroborative of the evidence of Chris Richards.

[83] A video of Mike Vitello paying for gas at Canadian Tire is taken at 7:46 a.m. A receipt for the purchase of gas in the amount of $97.01 with a timestamp of 7:46 a.m. was tendered in evidence. Also, on January 20th at 8:37 a.m. Mike Vitello’s phone is accessing the Arnprior tower whereas previously at 5:56 a.m., when he telephoned Chris, it was accessing the White Lake tower, again corroborating the movements as testified to by Chris Richards.

[84] It is important to note that there is no White Lake Store video of the return of Mike’s truck, which would confirm that they did not come back by way of the White Lake Road but rather by back roads, as testified to by Chris Richards.

[85] With respect to Chris Richards’ testimony that Mike and Sam would be taking a loaded truck to the Carp Dump, the White Lake Store video shows Mike’s loaded truck passing by at 10:32 a.m. and at the same time, Chris Richards’ station wagon leaving in the opposite direction at 10:33 a.m. Mike’s truck, still loaded is seen returning shortly thereafter, and when photographed by police later on that day, the garbage was still in the truck.

[86] Chris Richards was completely unaware of any of the video surveillance which corroborates his testimony.

[87] A cellphone seized from Mike Vitello shows that he received a call from John Nicoletta at 9:35 a.m. on January 20th, which lasted 3 minutes and 26 seconds. The cellphone records confirm that the tower that enabled the call was near Highway 17.

[88] Where Chris Richards is not corroborated is in relation to his testimony that they spent two or three minutes at the Nick Smith Centre on the morning of January 20th. The video from the Nick Smith Centre for the entire morning does not show Mike Vitello’s truck being present at any time. Chris Richards’ testimony with respect to that is clearly in error.

[89] However, with respect to his testimony that Mike drove to an apartment building near Sonia’s townhouse where her townhouse could be seen, this evidence is highly corroborated by both Sonia and Oscar Giroux. Sonia testified that Oscar arrived at her house at about 8:00 a.m. and stayed about one hour. The night before she had texted Oscar Giroux an image of the text messaging occurring between her and Chris. Oscar Giroux confirmed receiving it. Oscar told Sonia not to worry and that he would be at her house the next morning and they could open the store together.

[90] Oscar Giroux testified that he arrived at Sonia’s townhouse at about 8:00 a.m., watched Sonia’s daughter get on the school bus, after which Oscar left. Oscar then telephoned Sonia and said, “I think I saw Mike’s truck.” Sonia confirmed this call in her evidence. Oscar left Sonia’s house around 9:15-9:30 a.m. on his way to open the store. Sonia was going to buy a coffee first then go to the store. While driving, Oscar observed Mike’s truck in a parking spot at the apartment near Sonia’s. He recognized the truck and he saw Mike together with a front passenger and a rear passenger. The rear passenger was only a silhouette. The driver was bending down as if he was picking something up. The front passenger’s window was down and he could clearly see the passenger. He observed the passenger to have a goatee, tanned skin, bald head and approximately the same size as Mike. He subsequently looked at a photo-lineup and identified Salvatore Raia. His description matches Mr. Raia.

[91] After passing the truck parked at the apartment, Oscar turned around and went back to Sonia’s house and after turning around, he saw the truck backing out of the parking spot. He believed the occupants could see Sonia’s house from where they were parked and when he first observed the truck, it was parked facing Sonia’s street. During his first pass by of the truck, the front right window was open. He did not know whether the driver’s side was open because he could not see that side of the truck. This is when he observed the front seat passenger.

[92] It was during the second pass by of the truck, heading back to Sonia’s, when he observed Mike being the driver. He did not see the driver’s face during the first pass. This is when Mike would have been ducking down in order to avoid from being seen by Oscar.

[93] Oscar Giroux’s evidence is highly corroborative of the evidence of Chris Richards. Sonia Bernard’s evidence is corroborative of Oscar Giroux’s.

[94] With respect to whether Salvatore Raia made eye contact with Oscar, it was Chris Richards’ evidence that they did. Oscar Giroux did not indicate that he made eye contact. This is easily explained. Oscar Giroux was looking very carefully at the vehicle and its occupants. Chris Richards would have seen that. He could also observe Mr. Raia. From Chris Richards’ point of view, Oscar Giroux made eye contact with Mr. Raia.

[95] The cellphones of Mr. Vitello, Mr. Raia and Mr. Richards were all analyzed by the police. The cellphone records are highly corroborative of Chris Richards’ evidence. The records indicate that Chris received a telephone call at 5:56 a.m. from Mike Vitello on January 20th. Both phones bounced off the White Lake tower, confirming that Chris was at Mike’s place waiting to be contacted by Mike.

[96] When Salvatore Raia was arrested on the night of January 23rd, he was held in custody and gave a statement on the morning of January 24th. In that statement, he confirmed that he had been picked up by Mike the night of January 19th, that they had dinner and some drinks and he slept over.

[97] Cellphone records confirm that between January 19th 4:07 p.m. and 5:41 p.m., Mike Vitello’s phone moved from the White Lake tower to the Ottawa Paul Anka Drive/Uplands Drive tower. By 8:35 p.m., Mike Vitello’s phone is back at the White Lake tower. Between January 19th at 4:23 p.m. and January 19th at 5:41 p.m., Salvatore Raia’s phone is in Ottawa. By 7:06 p.m., Salvatore Raia’s phone accesses the Packenham tower and by 7:20 p.m., Mr. Raia’s phone accesses the Renfrew/McNabb tower, clearly establishing the fact that he was in fact taken from Ottawa to White Lake by Mr. Vitello the night of January 19th.

[98] In his statement to the police, Mr. Raia confirmed that he had known Mike since they were nine or ten years old and that he did not know Chris; it was the first time he had met him.

[99] Mike Vitello’s ex-wife, Maria Barbuto, testified that Mike and Mr. Raia had been friends since childhood. Sebastiana Raia, Salvatore Raia’s sister, testified that her brother and Mike had been friends from childhood and that her brother worked as a school custodian and previously worked as a hairstylist.

[100] In Mr. Raia’s statement to the police, he told the police that Mike’s friend Chris came over that morning and that “we all went through everything in the truck to bring it to the dump.” He named the Carp Dump as being the destination.

[101] Another important piece of corroborating evidence is the text messages exchanged between Chris and Sonia on January 19th and January 20th, 2017. The timing and content of these various text messages lend complete credence to Chris Richards’ description of what was transpiring.

[102] One more piece of corroborating evidence is a list of repairs directed to be done at Mike Vitello’s home, which was kept as an image on Chris Richards’ phone.

Mr. Raia’s Statements

[103] Neither Mr. Vitello nor Mr. Raia testified on their own behalf.

[104] However, Mr. Raia did make a statement to the police after being informed by his lawyer to say nothing. Prior to his arrest, he had a discussion with his sister, Sebastiana, who spoke to him the day before his arrest. He complained to her that there was a guy named “Steve” who was trying to get him in trouble and had been “recording Mike” and that he was only attempting to help Mike out. It is clear that when she refers to the person named “Steve”, she is in fact referring to Chris Richards.

[105] Following the arrest, Sebastiana asked her brother what was going on and why he would be arrested if he had not done anything. She asked who was the girl involved. Her brother told her it was Mike’s ex-wife. He said that “Steve” was egging on Mike to kidnap her and put her in the basement and that her brother just happened to be there when this discussion took place. She asked him if he was drunk and he said he was not. He told her that he had a little knife that he used to cut apples.

[106] Mr. Raia asked her to pick up certain items that he had left at Mike’s. After contacting Mike’s son Nicholas, she testified that an exchange was arranged to pick up a balaclava, a water bottle and a survival knife belonging to her brother and in turn she gave Nicholas a set of keys for Mike’s truck. She testified that the night Mike got arrested, he gave Nick the keys to his truck and Nick in turn gave them to her brother, Sam. They were located in Sam’s apartment.

[107] In his evidence, Nicholas Vitello confirmed that he arranged to give the balaclava, the water bottle and the hunting knife to Sam’s sister but did not recall receiving keys to a truck. He testified that he left the items at his grandmother’s house for pickup by Sam’s sister.

[108] Sebastiana visited Mr. Raia in prison on three or four occasions. On one occasion, her brother was upset because she told the police about picking up the balaclava, the water bottle and the hunting knife, and turning them over to the police. He told her that whatever she told the police would not be credible because she had the story all wrong.

[109] It is worthy to note that in his statement to the police, Mr. Raia confirms a number of details, such as the fact that he was picked up by Mike on the evening of January 19th and brought back to Mike’s house where Mr. Raia cooked fish and they had drinks and discussed matters. They had whiskey and a glass of wine. He could not recall whether the topic of Sonia ever came up. He slept on Mike’s son’s bed and he confirmed that the following morning they cleaned out the garage and placed all of the garbage into Mike’s truck and Mike’s friend Chris helped load the truck.

[110] He said that Chris was saying things about Sonia, which was stirring up Mike’s emotions. He referred to Chris as an “agitator”. He said that he had never met Chris before that Friday morning. He said that they went for coffee. He thinks it was at Tim Horton’s. It was a drive-thru. Mike was driving and Chris was in the back of the vehicle, behind Mike. He does not recall going anywhere else. He explained that he carried the knife to cut wood and that he had left it in the truck.

[111] He continued to insist that Chris was egging on Mike saying that his wife was a “bitch” and she had ruined his life. He said he was not trying to listen to what Chris was saying because it was so negative. He told the police he could not understand why he was under arrest and Chris was not.

[112] Suffice to say, Mr. Raia’s evidence is completely contradicted not only by the evidence of Chris Richards but by all of the corroborative evidence of Chris Richards’ testimony with respect to the movements of himself, Mr. Vitello and Mr. Raia on the morning of January 20th, including the evidence of Sonia Bernard and Oscar Giroux. Mr. Raia’s explanation simply cannot be believed when he stated that he was simply a bystander, that Chris was egging Mike on, that he had no interest in what was being said, nor recalling where they went after they had coffee in Arnprior.

Mr. Vitello’s Statements

[113] Maria Barbuto testified about certain conversations she had with her ex-husband following his arrest. She testified to the fact that she had been married to Mike from 1996 until 2010 and that they had three children, Nicholas 20, Arianna 16, and Antonio 12. She confirmed that Nicholas was supposed to spend the weekend with his father commencing Friday January 20th.

[114] When she learned her ex-husband had been arrested, she telephoned Mike in jail and asked what was going on. Mike told her that his “worker” had a conversation with him about how to get rid of a wife and that the worker recorded him. The worker was giving him all the ideas but it was something he never could have done.

[115] A few days later when she telephoned Mike again, Mike told her that Chris knew how to get rid of a car and a body. Ms. Barbuto said she really did not want any more information so she did not ask. She understood that the victim was to be Mike’s wife, Sonia.

[116] She confirmed in her evidence that she had spent some time at Christmas and New Year’s with her ex-husband, who expressed an interest in getting back together for the good of the children.

[117] She testified that Mike was very bitter about Sonia. He called her a “bitch”.

[118] She was asked whether she knew anything about the baseball bat. She was shown the bat and she stated that she had never seen it in her life.

[119] Mike son’s Nicholas testified that he was to spend the weekend with his father. His plan was to leave his car at a service station in Arnprior to have a remote control starter installed and that he would pick up the car on either Saturday or Sunday. His father was supposed to meet him at the service station in Arnprior at about 4:00 or 4:15 p.m. on the Friday but instead he received a phone call from his father saying that he could not make it. Nicholas drove to the house at White Lake and saw the police and his father in custody. He ended up driving Mr. Raia home. Mr. Raia appeared to be drunk and was sleeping in the car. When Mr. Raia got home, he got sick and Nicholas had to phone paramedics to assist him.

[120] With a great deal of prompting by the Crown, Nicholas admitted that his father had complained about his investment in MJ’s and his financial situation with Sonia, namely that he had to pay all of the bills, that he was “busting his ass” and Sonia was not earning any money. He was pushed to confirm a previous statement that his father was upset at Sonia after the separation. He confirmed that he transferred a balaclava, a water bottle and a knife to Mr. Raia’s sister. He did not recollect discussing anything about keys to his father’s truck.

[121] He was shown the baseball bat and he did not believe that he had seen the bat at the White Lake property. He said he had never played baseball and his father had not played in twenty years. He stated that he had received information from Mr. Raia’s sister to the effect that Chris had been recording his father.

[122] He was asked where he intended to park when he retrieved his car from the garage in Arnprior. He stated that he would have parked inside the garage because a snow storm was expected on the weekend. Records placed in evidence from all neighbouring radar stations show that there was no snow in the area on the weekend.

Chris Richards’ Credibility

[123] Mr. Richards’ credibility was the subject of an all-out and sustained attack by Mr. Harbic. He was called a liar, a manipulator, a bad mouther, and an individual compelled to lie through greed. The motive asserted was to take over Mike’s business.

[124] In the case of Mr. Raia, Mr. Adam took pains to point out how Mr. Richards’ story evolved over each of the three statements he made to the police, suggesting that he was making the story up as he went along.

[125] In the final analysis, the determination of the outcome of the charges against Mr. Vitello and Mr. Raia must be made on an assessment of Chris Richards’ credibility and reliability as a witness.

[126] Throughout his lengthy time in the witness box, Mr. Richards was always well-dressed, wearing a suit and a tie. He was soft spoken. He was never aggressive. He was, in my view, more than fair in his responses to questions asked by defence counsel, at certain times agreeing with propositions that were contrary to his own interest. There was no hint of spite in his testimony. He agreed to bad conduct, including being a party to getting rid of the German shepherd dog, not telling Sonia about Mike’s theft of her belongings, nor the placing of sugar in the gas tank. He agreed that he would bad mouth Sonia in many of the conversations with Mike and on the morning of January 20th in the presence of Mr. Raia.

[127] He insisted throughout his testimony that he simply did not want to be involved and that he feared Mike and feared for himself. He had no plans to take over Mike’s business. All he wanted to do was to separate himself from Mike and start his own small business, which he eventually did.

[128] I found his entire evidence to be fair, balanced and sympathetic, unprompted by any animus towards Michael Vitello and certainly not by any animus towards Salvatore Raia.

[129] It was very clear that Chris Richards would have preferred to be anywhere else but in the witness stand and yet showed complete patience with the entire grinding process.

[130] A major issue was made by defence counsel about the fact that the video surveillance from the Nick Smith Centre did not pick up Mike’s truck at any time during the morning of January 20th. Chris had testified that they went to the Nick Smith parking lot for a period of two to three minutes, then moved on to the apartment complex where they could see Sonia’s townhouse. Chris was insistent that they had been there even when confronted with the video evidence. He explained that perhaps the route they had taken was outside the video frame. He had drawn a sketch of where he believed the vehicle had been in the parking lot, which would not have been outside the video frame. He was clearly mistaken about being in the Nick Smith parking lot that morning, yet he steadfastly maintained they had been there.

[131] Mr. Harbic referred to this as the foundation for reasonable doubt. I disagree. Mr. Richards was mistaken in his testimony but I do not believe he was lying. He believed they were there. He suffers from ADHD and admits that sometimes he confuses the order in which things occurred.

[132] It must be noted that for some weeks, Mike Vitello had been speaking to Mr. Richards about breaking into Sonia’s house and abducting her, and of breaking into MJ’s. It might well be that in these discussions and trips to Arnprior and trips to MJ’s, Mr. Richards was confusing being at the Nick Smith Centre on January 20th when in fact it occurred on an earlier day. I believe him when he says they were at the Nick Smith Centre but I believe he was there with Mike Vitello alone, and not the morning of January 20th with Mr. Raia.

[133] When confronted with the discrepancy, he did not appear to be flustered nor trapped in a lie. Rather, he appeared to be truly confused and attempting his very best to recall the events as they occurred. I watched him very carefully as he testified and in my view he was trying his utmost to tell the truth. The same observation applies to all of the rest of his testimony. He was a remarkably honest witness, to the point of sometimes undermining himself.

[134] Another attack was made on his credibility when he testified that after being rendered unconscious, Sonia would be put into the truck through the “back door” of MJ’s. There is no back door. There are two sets of doors at the front of the business, one for customers and the other for loading trucks. The door for the loading of trucks is what Chris Richards stated was the back door. At no time during his testimony did he suggest that the back door was being used to provide secrecy. I place no significance on this evidence, and conclude it has no impact on his credibility whatsoever.

[135] With respect to his three statements to the police, it is clear that he was terrified of his involvement in this plot. He was charged with conspiracy to commit murder and imprisoned for nine hours. Notwithstanding that, he chose to eventually divulge the full details of the plot, implicating himself in the process, all the while not having any knowledge that there existed corroborative evidence of his account of events yet to be discovered by the police.

[136] Mr. Harbic compared Mr. Richards to Iago, Shakespeare’s greater than life villain in the play “Othello”. Iago exemplified pure evil in the manner in which he manipulated Othello to question his wife Desdemona’s faithfulness to the point that Othello murdered her out of jealous rage.

[137] During the course of final argument, I questioned Mr. Harbic as to whether he believed Mr. Richards was so evil as to implicate Mr. Raia in a plot to kidnap, sexually assault and murder Sonia Bernard, given that he had only met the man once and the only things he knew about him were that he was an old friend of Mike’s, he had a criminal record, he had gone through a difficult marital separation, he worked as a custodian of a Catholic School Board, he had previously worked as a barber and that he was taking anti-depressants.

[138] It would take the most abject evil on the part of Mr. Richards to implicate Mr. Raia. Even if Mr. Richards had an ulterior motive to implicate Mr. Vitello in an attempt to take over his business, there is no motive that can be identified to rope Mr. Raia into the conspiracy, other than abject evil. In my view, Mr. Richards is not evil. Mr. Harbic’s characterization of Mr. Richards as being Iago is completely off the mark, and I reject the proposition completely. The only parallel to the play Othello is Mike Vitello’s insane jealously of Sonia Bernard. This was not the result of manipulation and lies about her on the part of Mr. Richards.

[139] Mr. Richards’ testimony was richly textured with small details, such as Mike going down to brush his teeth while he went to begin cleaning the garage, or Mike having a washroom stop on the way to the apartment complex, or being parked in the Canadian Tire parking lot and seeing a police cruiser come by, or the receipt of a phone call from John Nicoletta near Highway 17, or, more important, the details of Mr. Raia’s past, all of which were confirmed by his sister. Chris Richards was an ordinary honest man caught up in terrifying circumstances that prompted him to sound a warning bell.

[140] The testimony given by Sonia Bernard was not subject to attack, with good reason. Just as in the case of Mr. Richards, her testimony was straightforward, honest, reflective and fair. She could have easily exaggerated the difficulties in her relationship with Mike Vitello but did not do so. What became obvious during the course of her testimony was her fear of the man. As events transpired, she has very good reason to fear Mike Vitello.

[141] It was suggested by counsel during closing arguments that the plan would be impossible to carry out because Michael’s son Nicholas would be spending the weekend and would be picked up at about 4:15 p.m. to 4:30 p.m. on the afternoon of January 20th. To begin with, it is well established that in the law of conspiracy, the fact that a plan is impossible to carry out is of no consequence: United States v. Dynar, [1997] 2 S.C.R. 462 at para. 105.

[142] That said, I do not agree that the plan could not have been carried out. Had Sonia Bernard been abducted shortly after she opened the store at 9:00 a.m., she could have been back at White Lake by 9:30 a.m., leaving the conspirators until 4:00 p.m. to carry out their gruesome plan. This would have given them ample time to rape, dismember, and place her body in the freezer, park her vehicle in the garage with the plan of disassembling it and selling parts to used auto parts dealers over a course of time and at an appropriate time, and renting a wood chipper to dispose of the frozen pieces of body located in the freezer. Nicholas could have been given a simple excuse that Sonia’s car was parked in the garage to accommodate her. Sonia’s daughter, Melika could have been picked up and had dinner with Mike and Nicholas and told that her mother was out of town visiting a sick grandmother, allowing time for the plan to evolve further from there.

[143] One thing is certain. Michael Vitello was insanely jealous of Sonia Bernard. On all of the evidence there is ample reason to believe he wished to kill her. His deteriorating work habits, his increasing drinking and obsession with Sonia all point to the inevitability of what occurred on the morning of January 20th, 2017, namely a serious and gruesome plot to kidnap, sexually assault and murder her.

[144] It was alleged by Mr. Harbic that everything that was done and videotaped on the morning of January 20th was consistent with an innocent ordinary day preparing to do work. What contradicts that assertion is the evidence of Chris Richards, which I accept, and Oscar Giroux, and of Sonia Bernard, that Mr. Vitello’s truck was parked for about an hour and a half very near Sonia Bernard’s townhouse. This was no ordinary work day. This was the day where Mike Vitello together with his old friend Mr. Raia and his devoted employee Mr. Richards would abduct, sexually assault, murder and dispose of her remains. On January 20th, 2017, the film “Fargo” was playing out in Arnprior. Thanks to Chris Richards, what happened in Arnprior had a far less gruesome ending.

[145] Another significant piece of evidence is the fact that Mr. Raia complained to the police after his arrest that Mr. Richards should be under arrest. Unless there was a plan to commit a crime, there is no reason Mr. Raia would insist that Mr. Richards be put under arrest.

[146] It was also suggested that Mr. Richards’ evidence could not be considered reliable because of his initial lies to police in his statement of January 20th. This argument fails because as his statements evolved, he increasingly implicated himself in the plot. He also implicated Mr. Raia. Unless he was telling the truth, he would not have implicated himself and Mr. Raia. If he was a liar, he would have simply denied that there was any conspiracy to abduct and harm Sonia Bernard. This would have been consistent with his texts to her where he merely warned her but gave no detail. If he were a manipulative Iago, he would have wished to save himself and would have certainly lied to do so. But he did not. He implicated himself. This completely belies any suggestion that Mr. Richards is a manipulative liar. Quite the opposite. It is clear that he was telling the truth at the risk of putting himself in jeopardy.

[147] Another curious area of evidence are the statements made by both Mr. Vitello and Mr. Raia that Chris was recording them. If Mr. Vitello and Mr. Raia were innocent, they should have had no fear of being recorded. This curious piece of evidence points to their guilt and their concern that their actual discussions about committing the crimes charged were being recorded.

[148] Nothing Mr. Raia has said raises a doubt in my mind about his involvement in this conspiracy. He was not an innocent bystander. I accept Chris Richards’ testimony that Mr. Raia’s involvement succeeded in changing the plan, specifically the addition of Mr. Raia entering MJ’s and not being recognized, and the freezing and wood chipping of the body, which would make things less messy.

[149] I am sure Chris Richards is telling the truth and I am sure Mr. Vitello and Mr. Raia conspired with each other to abduct, sexually assault, and murder Sonia Bernard. The essential elements of conspiracy are an agreement by two or more persons to commit a criminal offence; an intention by two or more persons to agree; and an intention to put this common design into effect. It is not necessary that there be proof of any overt act in furtherance of the conspiracy to complete the crime: R. v. O’Brien, [1954] S.C.R. 666.

[150] This case is very simple. The plan to abduct and sexually assault Sonia Bernard commenced on January 19th. The conspiracy took effect with the arrival of Mr. Raia on January 19th and continued to evolve when he, Mr. Vitello and Mr. Richards sat down over coffee the next morning at the home of Mr. Vitello and set out in detail the plan to attend MJ’s, render Sonia Bernard unconscious with a baseball bat, bind her with duct tape, place her in the bed of Mike’s cleaned out truck, take her back to White Lake, tie her to a wooden beam in the basement, assault and rape her, after which she would be dismembered, frozen and eventually fed into a wood chipper. All three discussed this. All three agreed to take steps to further this conspiracy.

[151] Thankfully, Chris Richards had a conscience and warned the victim, thereby saving her life. For that action, he must be congratulated. The evidence establishes that Chris Richards would not have been a party to abducting, sexually assaulting and murdering Sonia Bernard, thus rendering him a non-conspirator. Merely pretending to agree does not make one a conspirator: Dynar, supra, at para. 88.

[152] However, I am satisfied beyond a reasonable doubt that Mr. Vitello and Mr. Raia agreed to abduct, sexually assault, and murder Sonia Bernard. Mr. Raia was not pretending to agree. He was an active participant in the illicit plan and guilty of conspiracy together with Mr. Vitello.

[153] With respect to the counts involving Mr. Vitello alone, including that he willfully damaged the interior walls and doors, willfully interfered with the personal items of Sonia Bernard, including her clothing, jewellery and other personal items, willfully damaging her motor vehicle by putting sugar in the gas tank, and stealing and disposing of her German shepherd dog, failing to provide adequate care for the dog, and watching and besetting Sonia at her place of work and at her home, all have been proven beyond a reasonable doubt and convictions on all these counts will be recorded.

[154] With respect to the counts of disposing of Sonia Bernard’s personal items and her dog, I also rely upon the evidence of John Nicoletta. Mr. Nicoletta testified that Sonia complained to him about the loss of these items and her dog and he confronted Mike about her complaints. With respect to the loss of the items, Mike simply stated that he had paid for them. With respect to the loss of the dog, Mike explained that perhaps the dog had gone into the woods and had been shot by a hunter. These explanations to Mr. Nicoletta point to Mr. Vitello’s guilt.

Disposition

[155] For these reasons there shall be convictions registered on all counts in the indictment, with minor amendments as to dates in order to conform with the evidence.

C.D.A. McKinnon J.

Released: July 13, 2018