Court File and Parties

Court File No.: CR-20-00000188-00BR Date: 2020-06-03 Ontario Superior Court of Justice

BETWEEN: HER MAJESTY THE QUEEN – and – GIANLUCA SALVATI Applicant

Counsel: Celia Lindo-Butler, for the Crown Paul Zambonini, for the Crown Hubert Gonzalez, for the Applicant

Heard: May 29, 2020

Before: B.A. Allen J.

Reasons for Decision on Bail Review Application

Temporary Suspension of Court and Procedure on the Hearing

[1] This application was heard and decided in the midst of the COVID-19 pandemic under the direction of the Chief Justice of the Ontario Superior Court of Justice’s decision to suspend regular court operations effective March 16, 2020. It has been decided that cases involving urgent matters, matters that can be decided on written materials or on consent and not requiring a courtroom would be conducted by teleconference or video conference.

[2] The parties agreed that this bail review proceed by way of teleconference. A registrar and court monitor were present in a courtroom to maintain the court record. Originally, the plan was for the accused to participate from the Toronto East Detention Centre. However, the detention centre communicated with the registrar that without a Judge’s Order they would not present the accused for the hearing. On my direction, the registrar communicated to the superintendent of the detention centre that it has not been the practice to issue Judge’s Orders for accused’s attendance by teleconference during the suspension of the court services. The superintendent did not reply to the registrar and the accused was not presented for the hearing.

[3] I inquired with defence counsel as to how he wished to proceed. He indicated that his client was anxious to have the bail review completed and that he had instructions to proceed in his absence if there were any procedural problems. The hearing therefore proceeded in the accused’s absence.

[4] An order excluding witnesses and a publication ban were made. The parties made oral submissions and provided written materials and exhibits electronically by email.

[5] Viva voce evidence was heard from the two proposed sureties who called in to the teleconference. They were administered oaths to tell the truth and questioned in-chief and on cross-examination. The officer in charge of the August 2019 incidents participated in the teleconference.

The Charges Before the Court, November 2018

[6] The applicant, Gianluca Salvati, has an extensive criminal record and is facing numerous outstanding charges at the time of this bail review, charges that emerged both before and after the charges before the court. The charges that are subject to this bail review arose on November 4 and 5, 2018.

[7] On November 4, 2018, the police observed Mr. Salvati driving a motor vehicle while he was under a driving prohibition. The police pursued him and he evaded them.

[8] Mr. Salvati led the police on a high-speed chase through the city. He was driving at over 100 km/hr into oncoming traffic on Jane Street. The police had to halt the pursuit for public safety. Mr. Salvati has been prohibited from driving multiple times. The police caught him and put him under arrest. Mr. Salvati’s cellphone revealed a text message to a friend sent later that night that said: “I just got in a 20 mm car chase with feds.”

[9] On November 5, 2018, officers from the 11 Division Major Crime Unit executed a CDSA search warrant at Mr. Salvati’s residence. At the time he resided at 180 Rosethorn Avenue, his mother’s home. Just before executing the warrant, the police had observed Mr. Salvati exiting the rear seat of a motor vehicle without his surety.

[10] According to the police, when they entered the residence, they saw Mr. Salvati exiting the bathroom and then attempting to return to bathroom. Inside the bathroom on the vanity, the police found what tested to be individually packaged drugs: 85.5 grams of powder cocaine, 52.12 grams of crack cocaine, 9.12 grams of fentanyl and 86 grams of heroine. The police arrested Mr. Salvati.

Previous Offences, 2016, 2017 and 2018

[11] Mr. Salvati was subject to various court orders arising from crimes in which he was involved in 2016, 2017 and earlier in 2018 involving possession of drugs, motor vehicle offences, assaults, assault of a police officer and multiple breaches of court orders.

[12] On November 24, 2016, Mr. Salvati came before the Ontario Court of Justice on charges of uttering a death threat, dangerous operation of a motor vehicle and failure to comply with a recognizance. Mr. Salvati was placed on two-year probation.

[13] On November 3, 2017, Mr. Salvati appeared before the Ontario Court of Justice on charges of operating a motor vehicle while disqualified, operating a motor vehicle in a dangerous manner and for failing to comply with probation. He was again placed on two-year probation.

[14] On August 28, 2018, Mr. Salvati appeared on a show cause hearing before the Ontario Court of Justice on multiple charges arising from offences committed between March 14, 2018 and August 4, 2018 as follows: possession of drugs for the purpose of trafficking; possession of property obtained by crime, failure to comply with probation (x6), assault, assaulting a police officer with a weapon, dangerous operation of a motor vehicle, flight while pursued by police; escape lawful custody; failure to comply with probation (x4); failure to comply with a recognizance; failure to comply with probation (x2). Mr. Salvati was released on bail on 24/7 house arrest, only to be outside the residence in the continuous presence of his surety.

Subsequent Offences, August 2019

[15] On June 24, 2019, Mr. Salvati appeared before the court on unrelated charges and pleaded guilty. Due to what appears to have been an administrative error, Mr. Salvati was erroneously released from custody after pleading guilty to the charges. He received a disposition of time-served.

[16] Two months after being freed on the erroneous release, Mr. Salvati again got involved in crime in August 2019. Although the August 2019 offences are not the subject matter of this bail review, the evidence related to those offences is pertinent to the assessment of Mr. Salvati’s entitlement to be released on bail.

[17] Det. Jennifer Cash testified about the investigation of the August 2019 incidents. She used her memo book notes, which were placed in evidence, to refresh her memory. The facts of Mr. Salvati’s offences are as follows.

[18] On August 19, 2019, video surveillance outside the apartment building where Mr. Salvati’s girlfriend, Yuanna Rickets, resided shows Mr. Salvati going into the building. There is no dispute that this is Mr. Salvati. After a short time, he exits the building and enters a white Honda Civic parked in the parking lot. He is wearing a white t-shirt with a dark-coloured satchel over his shoulder. He enters the Honda and sits waiting in the passenger seat. It is unknown who occupies the driver’s seat. Ms. Rickets is then observed exiting the apartment building. She approaches her white Mercedes SUV in the parking lot and begins talking with a friend.

[19] The video surveillance shows Mr. Salvati turned around in the front passenger’s seat of the Honda watching Ms. Rickets as she speaks with her friend. The Honda then circles the parking lot coming close to Ms. Rickets and circles two further times and exits the parking. It is unknown who is driving the Honda. Ms. Rickets boards the driver’s side of her vehicle and drives to a McDonald’s on Ingram Drive in Toronto. There is no dispute that this is Ms. Rickets. The video surveillance shows her paying for her meal at a drive-through window.

[20] Ms. Rickets then pulls into a parking spot and the white Honda pulls up behind her car. A man gets out of the driver’s side of that car wearing a white t-shirt with a dark-coloured satchel over his shoulder. The Crown alleges this is Mr. Salvati. He approaches the driver’s side of Ms. Rickets’ vehicle and appears to have a brief conversation with her. The Crown takes the position that at this point Mr. Salvati points a gun at Ms. Rickets. Next, he returns to his car, and according to the Crown, appears to have his hand inside the satchel he is wearing. There is no evidence of Mr. Salvati with a gun in his possession.

[21] Ms. Rickets calls 911 and reports that her boyfriend arrived at McDonald’s and pointed a gun in her face and said he was going to shoot up her house. Ms. Rickets did not name Mr. Salvati as her boyfriend in the 911 call. She named his brother Robert. Robert and Gianluca are very different in appearance, as Robert is considerably heavier with darker skin than Gianluca.

[22] Det. Cash testified that when the police spoke to Ms. Rickets, she was not cooperative in discussing what occurred at McDonald’s. Det. Cash stated that Ms. Rickets did not give a formal verbal, written or audio statement to the police but spoke to another officer who made notes in his memo book of what she said. According to Det. Cash, that officer indicated in his notes that Ms. Rickets named Gianluca Salvati as the person who pointed the firearm at her.

[23] On August 21st the police set up surveillance at Mr. Salvati’s home at 180 Rosethorn Avenue seeking observation of Mr. Salvati. The police obtained a search warrant to search for the firearm they believed Mr. Salvati used at McDonald’s. Mr. Salvati resided in a unit in the basement of that home. The police found him hiding in a cupboard there. The police recovered a black satchel in Mr. Salvati’s bedroom from which they seized 28.69 grams of crack cocaine. Det. Cash conceded that there is nothing that actually indicates that is the same satchel Mr. Salvati had previously been seen carrying although she said it looks similar.

[24] The police also recovered two cellphones from the home for which a search warrant was obtained to extract its contents. There were screen shots of Snapchat and text messages on one of the phones. While the phone was found in Mr. Salvati’s belongings, it is not fully evident who the holder of the phone was at the time of the messages or who the recipient of the messages was. The person who had the phone at the time of the messages is referred to as Giovanna Rickets. Mr. Salvati’s girlfriend’s first name is “Yuanna.”

[25] The defence takes the position that there is no way of being certain of who used the cellphone containing the messages and who the recipient of the messages was.

[26] Assuming it is Ms. Rickets with the phone, which is the Crown’s position, it appears that Ms. Rickets is speaking to a third party about how she actually loves Mr. Salvati in spite of his abuse. She says he always wants to pull guns on her. One of the messages says she called the “feds”, which in street parlance refers to the police.

[27] There are also messages to someone referred to as “Yu” on August 19th which states that the police caught “Luca” with a gun and “I got in a 20 minute car chase with feds.” There is no evidence that Mr. Salvati was caught with a gun on August 19th or at anytime. The latter message was sent 20 minutes after the McDonald’s incident. In relation to the August 19th incident, the name “Chizzel” is mentioned in the messages. There is no evidence of whom that might be.

[28] Det. Cash testified Mr. Salvati told the police while he was being arrested that he had pain issues with is back. She observed a protrusion on his back. Photos of Mr. Salvati’s injuries were placed in evidence by the defence. In addition to the protrusions the photos show large bruising on the left side of his face. The police took no photos of the injuries. Mr. Salvati was first transported from his home to the police station and then to the hospital where his back was treated. He underwent surgery in October 2019.

[29] Det. Cash testified that she spoke to Mr. Salvati’s mother on August 21st. According to the officer, the mother explained that while Mr. Salvati was in detention at Toronto South Detention Centre sometime before August 2019, he fell off the top bunk bed and injured his back. The mother indicated that her son’s original injury resulted from a car accident where her son was evading police pursuit which resulted in an injury to his back which required surgery to insert rods and screws.

[30] During the search of the house, Det. Cash was on the lawn outside the home. She testified that a bag of cocaine was thrown out of a second-floor bedroom window and landed on the lawn. The police found Paolo Sacco and his girlfriend Alison Khone in the second-floor bedroom. They were the only people on the second floor. While searching around the bedroom window the police located a set of car keys. They were found to be the keys to a burgundy Buick parked outside the house. A search warrant was obtained to search that vehicle.

[31] The vehicle was found to be leased by Ms. Khone. In the car the police found a firearm in the glove compartment. Ms. Khone was arrested for possession of a firearm in the car. Det. Cash testified Ms. Khone gave a statement on August 21st and a later statement in the company of her lawyer on December 21, 2019. The latter statement is described by Ms. Khone’s then counsel (not counsel at this hearing) as being “involuntary and induced”. Det. Cash could not say why the statement was described that way.

[32] In the video recorded statement, which was filed in evidence by the Crown, Ms. Khone states that she does not know Mr. Salvati well as she had only been around him a few times. She described that on one of those occasions she was driving around and he was in the back seat of the Buick with a satchel and a firearm on the seat beside him.

[33] Ms. Khone said Mr. Salvati later got into the front seat. She stated that she did not know that Mr. Salvati had put a firearm in her the glove box. She did not see him do that. The only link of Mr. Salvati to the burgundy Buick and firearm is from Ms. Khone’s statement. Forensic testing on the firearm does not connect Mr. Salvati to the firearm.

[34] Mr. Salvati committed those offences while bound by a detention order and numerous other court orders. Mr. Salvati was arrested on three outstanding warrants.

The Show Cause Hearing

[35] This is a reverse onus case. Mr. Salvati attended before Justice of the Peace S. Anstey on May 13, 2019. On request of the defence, the Crown brought a Criminal Code, s. 524 application to cancel outstanding bail releases related to three separate informations, including the information related to the subject November 4 and 5, 2018 charges. The show cause hearing was therefore uncontested and no substantive decision was made respecting the subject charges before the court.

The Law

Grounds to Determine Release

[36] The three grounds on which bail may be denied under subsections 515(10) (a), (b), and (c) of the Criminal Code are common knowledge. There are primary, secondary and tertiary grounds. The main focus of this review is on the secondary and tertiary grounds.

Conclusion on the Primary Ground

[37] The defence made submissions on the primary ground. Bail can be denied where detention is necessary to ensure the accused’s attendance in court. This ground addresses whether the accused is a flight risk. This involves consideration of factors such as family or community roots in the jurisdiction, citizenship/ownership of a passport and current residence

[38] There was little evidence on the primary ground. The defence points out that Mr. Salvati is a Canadian citizen whose family lives in Toronto. He has no connection to another country. He has no incidents of failing to appear at court. There is therefore no evidence that he would not attend for his outstanding charges. There is no evidence when he was mistakenly released from detention on May 13, 2018 that he knew he was not entitled to release. Defence counsel submitted that when he learned of the mistake, he did not attempt to flee. He returned to his home.

[39] I do not find there are primary ground concerns.

The Secondary Ground

[40] On the secondary ground bail can be denied for the protection or safety of the public considering whether there is any “substantial likelihood” the accused will commit a criminal offence or interfere with the administration of justice. Substantial likelihood means “substantial risk”, a standard below proof beyond a reasonable doubt: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328.

[41] The secondary ground is concerned with such matters as the nature of the offence, whether the accused has a criminal record, the nature of any criminal record, whether he has any outstanding charges and whether he has a history of non-compliance with recognizances.

The Tertiary Ground

[42] On the tertiary ground bail can be denied in order to maintain confidence in the administration of justice having regard to all the circumstances. Bail can only be denied if the court is satisfied that in view of the four factors enumerated under s. 515(10) (c) and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice: R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309.

[43] The four factors under s. 515(10)(c) are well-known and are as follows: (i) the apparent strength of the prosecution’s case; (ii) the objective gravity of the offence in comparison with other offences in the Criminal Code; (iii) the circumstances surrounding the commission of the offence, whether a firearm was used; and (iv) whether the accused is potentially liable for a lengthy term of imprisonment. R. v. St-Cloud, 2015 SCC 27, at para. 12.

[44] The four enumerated factors must be considered together. No one factor is definitive. It is the combined effect of all the circumstances of each case that must be considered to decide whether detention is justified. The court must balance all of the relevant circumstances and after the balancing must consider the critical question of whether detention is necessary to maintain confidence in the administration of justice: R. v. St-Cloud, 2015 SCC 27, at para. 69.

[45] On the criteria under s. 515(10)(c), the Supreme Court of Canada observed: Without drawing up an exhaustive list of possible circumstances surrounding the commission of the offence that might be relevant under s. 515(10)(c), I will mention the following: the fact that the offence is a violent, heinous or hateful one, that it was committed in a context involving domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerable person (for example, a child, an elderly person or a person with a disability). If the offence was committed by several people, the extent to which the accused participated in it may be relevant. The aggravating or mitigating factors that are considered by courts for sentencing purposes can also be taken into account. R. v. St-Cloud, 2015 SCC 27, at para. 61.

Grounds for Review

[46] There are three bases upon which a court on a bail review can vary an order: (a) where the justice has erred in law; (b) where the impugned decision was clearly inappropriate, such that the justice gave excessive weight to one factor or insufficient weight to another factor, but not on the basis that the justice would have weighed the factors differently; or (c) where there is a material change in circumstances: R. v. St-Cloud, 2015 SCC 27, at para. 121.

[47] There is no claim to an error in law or that the Justice’s decision was clearly inappropriate. The defence seeks a de novo proceeding based on material changes in circumstance on the basis of two proposed sureties, the advent of the pandemic and its impact on correctional facilities and a proposal for electronic monitoring. A de novo hearing is not appropriate unless there is new evidence adduced at the bail review: R. v. St-Cloud, 2015 SCC 27, at para. 118.

[48] The Crown takes the position that there is no material changes in circumstance and as such, in the Crown’s view, the defence is not entitled to a de novo proceeding.

[49] The Crown cites the decision in R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775.

[50] In the context of bail, a modified Palmer test governs the admissibility of new evidence. This reflects the different nature, purpose and timing of those proceedings. Sections 520(7) and 521(8) of the Criminal Code provide for the tendering of new evidence or exhibits with non- s. 469 offences. Where new evidence is proffered by the defence or the prosecutor, the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case. St-Cloud modifies the Palmer test setting out the following criteria to assess whether evidence constitutes “new evidence”: diligence, relevance, credibility and impact: R. v. St.-Cloud, 2015 SCC 27, at paras. 122-137.

[51] In the Crown’s view, the two sureties do not represent new evidence and further submits that this is not a case that the defence through due diligence was unable to produce for the bail review. The Crown takes the further position that the COVID-19 virus does not represent a change of circumstance in relation to Mr. Salvati and his situation. He has presented no evidence of a particular impact of the virus on his health. The Crown also submits that electronic monitoring does not represent a material change in circumstance because it is also not new evidence that could not have been proposed with due diligence.

[52] As will be seen below, the defence’s evidence is that the two proposed sureties were not available on May 13, 2019 at the time of the show cause hearing.

[53] The main surety is proposed to be Franca Polera, Mr. Salvati’s stepmother. Her evidence is that Mr. Salvati’s biological mother forbade her from being involved in her son’s life and in his problems with the criminal justice system. The biological mother insisted that Ms. Polera was not his real mother and she did not want Ms. Polera’s involvement. It was not until this bail review that the biological mother decided to permit Ms. Polera, who resides with her own son, the other proposed surety, to involve herself in Mr. Salvati’s life as a surety.

[54] I found Ms. Salvati’s evidence credible. I accept that she was not available earlier and as such her being a surety represents new evidence and a material change in circumstance.

[55] I also find the ankle monitor to be a material change in circumstance connected to Ms. Polera being a surety. She has indicated that if she is accepted as a surety, she will undertake to pay the installation and monthly fees. This is new evidence not previously available and constitutes a material change in circumstance.

[56] The pandemic was not in effect in May 2019 when Mr. Salvati consented to cancelling previous releases. I accept, as the defence argues, that it is reasonably likely that Mr. Salvati would not have cancelled bail and sought to remain in custody if he was aware of the conditions COVID-19 would have created for detention centres. I find the virus created a general material change in the circumstances in the correctional facilities in Ontario. The question is whether the change in circumstance affects Mr. Salvati’s personal situation.

[57] I think not, for the following reasons. Mr. Salvati presented no evidence of an impact of the virus on his health, no information about any vulnerability he might have to the virus. Throughout Ontario correctional facilities, there has been increases in the number of staff and inmates infected with the virus from April 28th to May 26th: by April 28th, 92 positive inmates and 24 positive staff and by May 26th, 115 positive inmates and 30 positive staff: [Response to COVID-19 Information Note, April 28, 2020 and Response to COVID-19 Information Note, May 26, 2020].

[58] However, there have been no reported positive cases of the virus among the inmates or staff at the Toronto East Detention Centre. So far as it relates to that correctional facility, Dr. Aaron Orkin’s prediction, in his affidavit dated April 5, 2020, at pp. 5 and 6, that correctional facilities will be overwhelmed with cases has not come true for Toronto East Detention Centre from March to May.

[59] The material changes in circumstance related to the proposed sureties and the GPS ankle monitor permit a de novo hearing.

Evidence on Secondary Ground

Affidavit of Gianluca Salvati

[60] Mr. Salvati is 26 years of age. At the time of the offences addressed in this hearing, both those in November 2018 and August 2019, he was residing with his mother at 180 Rosethorn Avenue, Toronto, Ontario.

[61] Mr. Salvati claims that about three years ago he was involved in a car accident that resulted in metal rods and screws being inserted into his back. He asserts that when he was arrested on August 21, 2019, the police removed him from the basement unit and kicked and injured him. He says he did not resist or fight back. He described being taken to the hospital. Mr. Salvati speaks of undergoing surgery in October 2019 during which some pieces of screws could not be removed. His lawyer took photos of the injuries on August 23, 2019 at Old City Hall.

[62] Mr. Salvati stated that he understands that under the proposed terms of release he will be required to be under the 24/7 supervision of his stepmother and stepbrother and be subject to 24/7 GPS monitoring and that he accepts those conditions.

Affidavit of Franca Polera

[63] Franca Polera, who is age 59, provided an affidavit and testified at the hearing. She is a Canadian citizen, with no criminal record. She has never acted as a surety previously. Ms. Polera is Mr. Salvati’s stepmother who has known him all his life. She resides at 2480 Eglinton Avenue West, Apartment 306, in Toronto, Ontario where she is prepared to supervise Mr. Salvati with the support of her son, Mike.

[64] As indicated earlier, she has been unable to be close to him because his biological mother would not allow it. Mr. Salvati has never lived with his stepmother. She has never had to supervise him.

[65] Because Ms. Polera has not been able to offer her stepson guidance throughout his troubled life, she has limited familiarity with his criminal background, although she is aware that he has been arrested and jailed on several occasions. She does not know any of his friends. She does not know his girlfriend, Ms. Rickets. Ms. Polera insisted that she would not allow Mr. Salvati to have any of his friends or acquaintances at her home, both because of the pandemic, and because this would break the rules of house arrest.

[66] Ms. Polera bemoaned the fact that she was not able to support Mr. Salvati in the way she has supported her own son who has never been in trouble with the law. She testified that Mr. Salvati has always acted respectfully toward her. She indicated that if she is allowed to act as a surety, she will be able to move him out of the negative crime-ridden environment where he grew up. Ms. Polera emphasized that she wants to give her stepson a chance in life; that if he came to live with her, she will be able to support him and get him the medical and emotional help he needs. She wants to determine whether he has a drug addiction problem.

[67] Ms. Polera is laid off from her janitorial job due to the pandemic, with no fixed day to return. When she returns to work, she will only work ten hours a week. She earned $25,000.00 a year and is willing to pledge $5,000.00 as security. She indicates that this is a large amount of money but she is willing to pledge it to help her stepson.

[68] Ms. Polera stated that she is aware of her responsibilities to ensure that Mr. Salvati does not breach bail. She insisted that he would be under the constant supervision of herself and his older stepbrother. She was adamant that she would call the police and have him arrested at the slightest breach. She reviewed the literature on the GPS monitor and indicates she is apprised of how the system functions.

Affidavit of Mike Polera-Corniola

[69] Mike Polera-Corniola is age 40, 14 years older that his stepbrother. He is a Canadian citizen with no criminal record. He too has known Mr. Salvati all of his life. He lives with his mother at 2480 Eglinton Avenue West, Apartment 306. He is currently on disability leave from his construction job with no definitive date for return. He is prepared to pledge $15,000.00 which he indicates is a large amount of money for him to lose if Mr. Salvati breaches bail.

[70] Mr. Polera-Corniola said he is prepared to support his mother in ensuring his stepbrother is under their continuous supervision on a 24/7 basis. He stated that his stepbrother will comply with his guidance. Mr. Polera-Corniola said he would not allow his stepbrother’s friends to visit the home. He said he has not been very close to Mr. Salvati in the sense that he indicated he is not familiar with his criminal background or his personal life. Mr. Polera-Corniola has never discussed Mr. Salvati’s criminal conduct with him. He also does not know Mr. Salvati’s friends.

[71] Mr. Polera-Corniola expressed an understanding of his obligations as a surety and indicated he is prepared to call the police if Mr. Salvati breaches his bail conditions. He indicated he is familiar with how the GPS monitor will function on a 24/7 basis along with the 24/7 supervision by him and his mother.

Conclusion on Secondary Ground

[72] The nature the offence is relevant on this ground as it also is on the tertiary ground. The primary offences in both the November 2018 and August 2019 offences are serious as both involve large quantities of very addictive drugs, amounts that point to a drug trafficking operation and high-speed driving to evade police. The August offences involve a firearm.

[73] The police seized powder cocaine, crack cocaine, heroine and fentanyl during the November 2018 search. During the August 2019 search they seized a large quantity of fentanyl. The August 2019 charges also involve pointing a firearm at his girlfriend in a public place and possession of a firearm in a motor vehicle.

[74] Consideration must also be given to Mr. Salvati’s criminal record. His criminal record is extensive spanning some ten years from 2009 to 2019, from his youth to age 25. The previous charges in 2016, 2017 and 2018 involve drugs, assaults, assaulting police, escape lawful custody, dangerous driving to evade police and uttering death threats. Many of his previous offences are of the type that have carried over into his more recent criminal activity.

[75] Throughout Mr. Salvati’s criminal career he has flouted the terms of recognizances and probation and bail orders. He has some 18 charges related to violation of such orders. That combined with his penchant to evade police and to escape lawful custody during the commission of crimes, point to ungovernability, a keen disrespect for the law.

[76] There must be a strong plan of supervision to address Mr. Salvati’s criminal track record. It must prevent a substantial likelihood that Mr. Salvati will continue in his path of committing the types of crimes that he has repeated throughout his history and prevent him from engaging in any other type of criminal activity.

[77] I have some serious concerns about the sureties’ capacity to control Mr. Salvati. Neither of them has a track record of being a surety. Although they have both “known” Mr. Salvati from his birth I find they really do not “know” him. A large part of his life has been marked by criminal activity, flouting the law and being incarcerated. He has been charged with escaping lawful custody. The sureties know little about the details of that part of his life.

[78] Mr. Salvati has never lived with Ms. Polera. So, she does not know how he will conduct himself under hers and her son’s supervision. He has a history of assaults and violence and obstinance in relation to those, like police, charged with controlling and stopping his behaviour. Mr. Salvati does not have to leave the residence to commit a violent crime. He has a penchant for evading and escaping even law enforcement authorities. Mr. Salvati appears to have poor anger control and a propensity for dangerous misadventure and risk-taking. The sureties provide no details on just how they plan to supervise Mr. Salvati.

[79] It is not uncommon for young people to act respectfully towards older relatives, their seniors, and at the same time be actively involved in a criminal lifestyle. Ms. Polera does not know how respectful her stepson will be when for the first time in his life she is responsible for supervising and controlling his behaviour, day-in and day-out, 24/7. Add to this the need for social isolation due to the pandemic. Because of delays in bringing criminal matters to trial due to the indefinite suspension of court operations, there is no telling how long Mr. Salvati would be under his sureties’ supervision.

[80] A GPS ankle monitor can contribute an added measure of security. In the right circumstances, 24/7 surveillance using that technology is useful and effective. But as many courts have observed, an ankle bracelet cannot stop a crime from being committed. With a suitable offender this technology can act as a deterrent to crime. But with a risk-taking, devil-may-care, violent and non-compliant offender an ankle bracelet might not have that effect. If Mr. Salvati takes the risk for instance of slipping out of the house, perhaps when the sureties are sleeping, he could commit a crime before the police would be able to respond to an alert from the GPS monitor.

[81] I respect and admire Ms. Polera’s and her son’s willingness to give Mr. Salvati a chance, an opportunity to be cared for and live in a crime-free environment. However, for reasons I have outlined above, I find on the secondary ground there is a substantial likelihood that Mr. Salvati will commit a crime or interfere with the administration of justice if he is released.

Conclusion on Tertiary Ground

Apparent Strength of the Crown’s Case

The November 2018 Charges

[82] On the charges related to dangerous driving and evading police in a dangerous police pursuit, the Crown’s case is strong. He was under a driving prohibition on November 4th when the police pursued him and ultimately stopped and arrested him. There are no obvious triable issues.

[83] On the drug offences which point to a trafficking operation, the Crown’s case is more than moderately strong. The evidence is that the police observed Mr. Salvati leave a car at his home without his surety. They entered his home on a search warrant. From the Crown’s perspective, the police encountered Mr. Salvati exiting the bathroom and an attempt to return to the bathroom when he saw the police. The police arrested him. The police then entered the bathroom and located a large quantity of drugs on the vanity.

[84] The defence posits that there are triable issues on possession of the drugs. The defence submits there is a question as to whether Mr. Salvati was in the bathroom or in the hallway outside the bathroom when the police encountered him. The defence makes the point that there were other people in the home at the time who might be connected to the drugs. He submits that a bathroom does not have the privacy expectation of a bedroom. It can be used by anyone in the household. To the defence there is an arguable possession issue.

[85] How strong the Crown’s case is on possession depends on findings on credibility. There appears to have been more than one officer who encountered Mr. Salvati. Perhaps, their evidence will be seen as credible or Mr. Salvati’s evidence and anyone’s evidence that supports him might be found to be believable. I believe the Crown’s case on the drug charges is more than moderately strong.

The August 2019 Charges

[86] Although the August 2019 charges are not formally before the court on this review, the evidence related to outstanding charges can inform the context of the offences under review.

[87] The facts around the August 19, 2019 charges, related to the pointing firearm incident, are not so clear. The strength of the Crown’s case depends largely on Mr. Salvati’s girlfriend’s cooperation. It appears Ms. Rickets was not cooperative with the police around the time of the incident.

[88] In the 911 call, Ms. Rickets did not name Mr. Salvati as the perpetrator. She named his brother, calling him her boyfriend. Although it seems clear from surveillance footage that before the incident it was Mr. Salvati exiting Ms. Rickets’ apartment building, getting into the passenger seat of the Honda, and getting out of the Honda in the parking lot, there is no view of anyone pointing a firearm at Ms. Rickets. There is no direct evidence of Mr. Salvati in possession of a firearm.

[89] Det. Cash indicated that Ms. Rickets spoke to another officer who apparently indicated in a memo note that Ms. Rickets told him it was Gianluca Salvati who pointed the gun at her. This alone is not strong evidence. It is third-hand hearsay for one thing and is not in the form of a written, sworn or audio recorded statement by Ms. Rickets.

[90] On the dangerous driving, evading police pursuit related charges, there is no evidence as to who was driving the Honda. Because the Honda was driving into oncoming traffic, the police stopped their pursuit. Mr. Salvati was not arrested until two days later at his home.

[91] The Snapchat and text messages on one of the phones the police recovered from Mr. Salvati’s belongings on the August 21st search are cited by the Crown as containing evidence that points to Mr. Salvati being the person who pointed the gun at Ms. Rickets and that points to Mr. Salvati being the person who drove dangerously away from McDonald’s.

[92] I find it is certainly arguable that the messages suggest it was Mr. Salvati who pointed the gun at Ms. Rickets and who was involved in the high-speed chase. However, as the defence points out, it is not clear who is communicating with whom in those messages. Nicknames are used. As well, incorrect information is referred to in the comment that Mr. Salvati was caught with a gun on August 19th, which is not the case.

[93] Ms. Rickets is likely the best witness to clarify the messages but if it is Ms. Rickets who was using the phone, she says she still loves Mr. Salvati in spite of his abuse. Her value as a witness is marred by the possibility that its is reasonably likely that she will not cooperate with the Crown.

[94] On the pointing firearm and vehicular offences, I find the Crown’s case is moderately strong.

[95] During the August 21st search the police recovered a black satchel in Mr. Salvati’s bedroom in which they found a large quantity of crack cocaine. The Crown’s case on the drug charges is relatively strong. The drugs were found in Mr. Salvati’s bedroom in the basement. They were found in a black satchel. Mr. Salvati is seen in much of the surveillance footage wearing a dark-coloured satchel over his shoulder two days earlier. There is no proof that this was the same black satchel that was seized from his bedroom. But it is reasonably arguable that it is. The Crown’s case on the drug charge is relatively strong.

[96] During the search of the burgundy Buick leased by Ms. Khone, a firearm was found in the glove box. There are no forensics that connect the firearm to Mr. Salvati. Ms. Khone gave the police statements on two occasions, on one occasion in the presence of her lawyer. The latter interview was characterized as “induced and involuntary”. In that statement, Ms. Khone states that Mr. Salvati was in the back seat of the car with a firearm on the seat beside him. She indicated that he next got into the front seat of the car. But she did not see him put the firearm in glove box.

[97] There is only Ms. Khone’s evidence that puts Mr. Salvati inside that burgundy Buick and in possession of the firearm. There is no explanation as to what is meant by an “induced and involuntary” statement. If it means what I think it might mean, that she did not give the statement freely and willingly, the statement is prone to being excluded at an admissibility hearing.

[98] The Crown’s case depends on whether Ms. Khone’s statement is admissible and on whether she testifies at trial, and if she testifies about her observations, whether her evidence is credible. The firearm was in a car leased by her. She may have an interest in pointing the finger of blame elsewhere. The Crown’s case on this firearm charge does not appear to be particularly strong.

The Objective Gravity of the Offence

[99] It goes without saying that the firearm offences are serious crimes particularly when combined with possession of trafficking levels of drugs. It is not controversial to say this is a particularly toxic mix. Consideration must be given to the context of the crime being the City of Toronto which has been notoriously wracked over several years with almost daily incidents of gun violence and death.

[100] The vehicular offences are also very dangerous. It is alleged that Mr. Salvati drove into oncoming traffic at a high speed attempting to evade the police. Like the firearm and drug offences there is an obvious public danger element to the driving offences.

Circumstances Surrounding Commission of Offence (whether a firearm was used)

[101] The court must determine whether Mr. Salvati’s continued detention is necessary to maintain confidence in the administration of justice. This must be viewed through the lens of a reasonable and well-informed member of the public with basic familiarity with the rule of law and the fundamental values of our criminal law. This includes the presumption of innocence, the right to liberty and the rights guaranteed by the Charter: R. v. St-Cloud, 2015 SCC 27, at paras. 72-87.

[102] There is no determinative list of circumstances to be considered under s. 515(10)(c). R. v. St-Cloud, 2015 SCC 27 offers some examples of possible circumstances surrounding the commission of the offence where the victim and the nature of the crime are considered. As cited above: … the fact that the offence is a violent, heinous or hateful one, that it was committed in a context involving domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerable person (for example, a child, an elderly person or a person with a disability). If the offence was committed by several people, the extent to which the accused participated in it may be relevant. The aggravating or mitigating factors that are considered by courts for sentencing purposes can also be taken into account. R. v. St-Cloud, 2015 SCC 27, at para. 61.

[103] There does not appear to be an inherently vulnerable victim in the sense of there being a child or an elderly or disabled person being involved. The allegation of pointing a firearm at Ms. Rickets in close proximity while she sat confined in her car in a public place is a particularly violent act that placed Ms. Rickets in a decidedly vulnerable position. Also, for consideration is that there were co-accused involved in relation to drugs at Mr. Salvati’s home and the firearm in the burgundy Buick which adds to the breadth of the crimes.

[104] The personal circumstances of Mr. Salvati may also be considered: Section 515(10)(c)(iii) refers to the “circumstances surrounding the commission of the offence”. I would add that the personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc.) may also be relevant. R. v. St-Cloud, 2015 SCC 27, at para. 71.

[105] The COVID-19 virus provides a circumstance that cannot be ignored under this factor. It has become an issue to contend with in the last few months in considering release. I have determined that the pandemic represents a change in circumstance for correctional facilities that did not exist at the time of Mr. Salvati’s bail hearing in May 2019. However, I do not find that Mr. Salvati was able to demonstrate a particular impact on his health in the particular context of the Toronto East Detention Centre where throughout the pandemic there have been no positive cases among staff or inmates. Further, Mr. Salvati is a young man with no identified underlying conditions. I can take judicial notice that he is not in the category of persons who are most susceptible to the virus. I do not find COVID-19 provides a basis for the release of Mr. Salvati.

[106] About Mr. Salvati’s personal circumstances, he is a young adult of age 26. His life has been marked by ten years of involvement with the criminal justice system from his youth in 2009 to adulthood in late 2019.

[107] Many of the crimes are repeat offences, the dangerous driving, evading police, drug charges and firearm charges demonstrate Mr. Salvati has learned no lessons that would prompt him to change his behaviour. Mr. Salvati has also displayed a profound disregard for promises he has made to improve his conduct while on releases and has shown flagrant disregard for the terms of bail, prohibitions and probation orders. This does not bode well for release.

[108] The defence also raised the possibility of obtaining a stay of proceedings under ss. 7 and 24(1) of the Charter of Rights for the police use of excessive force in arresting him on August 21st. Mr. Salvati claims the police injured his back breaking rods and screws inserted during a previous surgery. He alleges the police kicked him in the face with a boot bruising his face.

[109] Det. Cash testified she spoke to Mr. Salvati’s mother and the mother explained that the injuries observed by the police on August 21st were caused when Mr. Salvati fell off of the top bunk at the Toronto South Detention Centre and the original injuries were the result of a car accident.

[110] A determination of the Charter issue will depend on credibility findings as among the mother’s, her son’s and the officer’s evidence. Obtaining Toronto South Detention Centre documentation and hospital records may tell the tale about Mr. Salvati’s injuries.

[111] The defence further raised as a consideration on release the issue of delay in coming to trial due to the suspension of court operations. This is an important consideration since there will be delays for an indefinite period into the future. There is no definite date of return.

[112] This is a problem that impacts every inmate in detention who is awaiting trial. Inmates denied bail will be detained for lengthy periods not knowing when they will have an opportunity to be heard. This is not a good set of circumstances. This runs against the cardinal constitutional principle that entitles accused persons to a prompt trial. But this is a situation largely beyond the control of the criminal justice and judicial systems.

[113] While this is certainly an undesirable situation, trial delay caused by the pandemic cannot on its own be the reason to order the release of an inmate. This would mean all inmates awaiting trial would be releasable irrespective of their circumstances. Delay like other factors must be viewed in the context of all the circumstances of particular cases taking all relevant factors into account. I find in the case before me that the factors pointing away from release overwhelm considerations of delay.

[114] In view of this, and for all the reasons cited above, I find on the tertiary ground that Mr. Salvati’s continued detention is necessary to maintain confidence in the administration of justice. I find a reasonable member of the community apprised of the nature of Mr. Salvati’s criminal background, more recent crimes and disrespect for the law would be satisfied that denial of release is necessary to maintain confidence in the administration of justice.

Potentially Lengthy Sentence

[115] There is no question that the vehicular offences, and drug and firearm offences would attract a lengthy sentence.

Conclusion

[116] I must balance the secondary and tertiary grounds in the context of all the circumstances of the case. The crimes under consideration will attract lengthy sentences. The strength of the Crown’s case varies from relatively weak on some charges to moderately strong and strong on others. Given the dangerous nature of the crimes and Mr. Salvati’s history of non-compliance and risky conduct a fit plan of supervision must be strong and reliable.

[117] In spite of the caring and supportive sentiments expressed by the sureties, I am not confident that they can provide the type of control necessary that a person like Mr. Salvati would require. He has not been an integral part of the sureties’ lives and I am not sufficiently certain despite their willingness and the use of an ankle bracelet, that the sureties will be able thwart the substantial likelihood that Mr. Salvati will commit further offences if he is released.

Disposition

[118] The application is denied. Gianluca Salvati will remain in detention at Toronto East Detention Centre.

B.A. Allen J. Released: June 3, 2020