COURT FILE NO.: CR22-97BR

DATE: 2022/08/11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Silvani

BEFORE: M.G. Ellies R.S.J.

COUNSEL: M. Crystal, for the Crown R. Currie, for the Defendant

HEARD: August 9, 2022

PUBLICATION RESTRICTION NOTICE

By court order made under subsection 517(1) of the Criminal Code, no evidence taken, information given, representation made, or reasons given by the court shall be published in any document, or broadcast or transmitted in any way until the accused is either discharged following a preliminary inquiry or his trial is ended.

ENDORSEMENT

[1] Mr. Silvani is before me for a detention review under s. 525 of the Criminal Code. He faces a number of serious charges, including attempt murder.

[2] The complainant is Mr. Silvani's former common law spouse. Mr. Silvani and the complainant were in the process of separating at the time he was charged. They owned a number of rental properties together through a jointly-owned corporation. On March 7, 2022, they had attended together with an accountant for the purpose of dividing up their property.

[3] Following the meeting with the accountant, the complainant went to Mr. Silvani’s residence. The allegations are that, while she was there, she was attacked by Mr. Silvani, first with a screwdriver and then with a number of other objects, including a hammer. The complainant managed to escape, but not before suffering significant injuries to her face, including a broken nose, lacerations, and fractures of her facial bones.

[4] A neighbour heard the attack and called the police. They arrived at Mr. Silvani's residence shortly afterwards to find the complainant outside. She later gave a statement to the police in which she alleged that, in addition to attacking her that night, Mr. Silvani had attacked her earlier that month and in July 2021. On both occasions, she told them, he had choked her. On the second occasion, he had also threatened her with two different knives.

[5] Mr. Silvani was arrested at his apartment that night. In addition to being charged with attempt murder relating to the events of March 7, he was charged with four other offences relating to the earlier attacks.

[6] Mr. Silvani appeared before a justice of the peace for a bail hearing on April 7. At that time, he proposed that he be released to live on his own, that two sureties be bound to supervise him, and that he be required to wear a GPS monitor. The justice of the peace was not satisfied with the plan of release and ordered that he be detained.

[7] Regrettably, the reasons of the justice of the peace are not clear with respect to the grounds upon which Mr. Silvani was detained. The Crown submits that Mr. Silvani was detained on the tertiary ground set out in s. 515(10)(c) of the Criminal Code, which permits detention to preserve public confidence in the administration of justice. I agree with that submission. However, based on my reading of the reasons, I believe that Mr. Silvani was also detained on the secondary ground under s. 515(10)(b), which permits detention where there is a substantial likelihood that, if released, the accused will commit a criminal offence or interfere with the administration of justice, for example, by intimidating a witness.

[8] In any event, the reasons for Mr. Silvani's detention are not particularly important because a court conducting a detention review must determine whether an accused's detention continues to be necessary on any of the grounds set out in s. 515(10): R. v. Myers, 2019 SCC 18, at para. 46. Even if Mr. Silvani was only detained on the tertiary ground in April, there is now also cause to be concerned about the secondary ground because, in May, he allegedly violated a non-communication order by calling the complainant from the jail. This has resulted in a further charge.

[9] Before me, Mr. Silvani proposes a strengthened plan for release in which he would be confined to his residence at all times unless in the company of at least one of the same two sureties proffered at the bail hearing, both of whom will supervise him using closed circuit television cameras (“CCTV”) when he is not in their presence. He also proposes to wear a GPS monitoring device, as he did before the justice of the peace.

[10] During the hearing, I heard evidence from Daniel Paulfranz about the installation and operation of the CCTV system. He explained that the images on the cameras will be recorded to a DVR and that the sureties will have an app on their cell phones to monitor the cameras’ live feed. I also heard evidence from Stephan Tan, one of the principals of Recovery Science Corporation, the supplier of the GPS monitoring device. He testified that the police would be called within five minutes of Mr. Silvani tampering with the device or leaving his residence without one of his sureties.

[11] In addition, I heard evidence from a forensic psychiatrist, Dr. Munro, who testified that Mr. Silvani may be suffering from dementia. She recommends that he be assessed by a geriatric psychiatrist to whom she has referred him. She testified that her colleague would need to conduct various diagnostic tests and, if a diagnosis of dementia is confirmed, may be able to recommend treatment to slow its progress.

[12] Dr. Munro testified that the tests must be completed in person and would best be administered to Mr. Silvani if he was an outpatient at the North Bay Regional Health Centre (“NBRHC”). She also testified that, while her colleague might attend the North Bay District Jail, she would not travel to a further facility, such as the Central North Correctional Centre ("CNCC"), in Penetanguishene.

[13] On behalf of Mr. Silvani, Mr. Currie submits that the need for assessment and treatment of Mr. Silvani's possible dementia is a factor weighing heavily in favour of his release. He asks me to take judicial notice of the fact that inmates are not presently being housed at the North Bay District Jail for longer than the mandatory COVID-19 quarantine period due to renovations being undertaken at the jail and that Mr. Silvani will be returned to CNCC if he is not released. He submits that the plan for Mr. Silvani's release should be sufficient to allay any concerns on either the secondary or tertiary grounds and that his release is necessary to permit Mr. Silvani to get the medical help he needs.

[14] I am unable to agree with these submissions for two reasons.

[15] First, I am not satisfied that Mr. Silvani can only be assessed and treated by being released from custody. While I am prepared to accept that Mr. Silvani will be transferred to CNCC at some point if he is not released, I am not prepared to accept that he cannot be assessed at the NBRHC. Dr. Munro testified that Mr. Silvani could be escorted to the NBRHC while he is at the North Bay District Jail and that the NBRHC has a secure area for people such as Mr. Silvani. I have no evidence, nor am I prepared to take judicial notice, that Mr. Silvani cannot be escorted to the NBRHC before he is transferred, or even afterward.

[16] More importantly, I am not satisfied that the proposed plan sufficiently mitigates the risk that Mr. Silvani will commit a further criminal offence against the complainant or interfere with the administration of justice if he is released. Nor am I satisfied that it would maintain public confidence in the administration of justice, given the serious nature of the charges, the strength of the Crown's case, and the potential for a lengthy period of incarceration if Mr. Silvani is convicted.

[17] Mr. Silvani is 79 years old. Until he was charged in March, he had never been involved with the criminal justice system. Given the caliber of the friends who have proposed themselves as sureties and the length of their friendship, I infer that Mr. Silvani led a productive life and posed no threat to anyone prior to the events that led to the charges he currently faces.

[18] However, based on the evidence before me, it appears either that Mr. Silvani had a dark side with which his friends were not familiar, or that he began to change in July 2021. Given the evidence of Dr. Munro, I suspect the latter. Regardless of the etiology, Mr. Silvani now poses a significant threat to the complainant. According to the evidence, he breached a court order and managed to commit a further criminal offence even while he was incarcerated.

[19] While there is no doubt that the proposed sureties are well-intentioned and would be dedicated to their task, like the justice of the peace, I do not believe that anything short of in-person, 24-hour supervision would be sufficient to overcome the concerns that arise in this case under the secondary and tertiary grounds set out in s. 515(10) of the Criminal Code.

[20] Closed-circuit television is not sufficient because, as Mr. Paulfranz admitted during his evidence, neither surety would be able to monitor Mr. Silvani in real time using their cell phones if the Internet fails. As Mr. Tan admitted, even if someone from his company calls the police within five minutes of a breach, he cannot account for the time it might take the police to respond. North Bay is not a large city and the distance between the residence Mr. Silvani previously shared with the complainant and the residence at which Mr. Silvani now proposes to reside is not that great.

[21] Even if Mr. Silvani does not manage to leave his residence or if the complainant no longer lives where she did, there is still the possibility that Mr. Silvani might use a telephone to contact the complainant, as he has done before. There is nothing in the bail plan specifically addressing this possibility and I am unable to conclude that Mr. Silvani would not be able to call the complainant while being monitored by CCTV or while wearing a GPS monitor.

[22] For these reasons, I have concluded that Mr. Silvani's continued detention is necessary and the order made by the justice of the peace on April 7, 2022, will therefore remain in place.

M.G. Ellies R.S.J.

Date: August 11, 2022