Décision

R. c. D'Addario				2016 QCCS 2532
JS1327    SUPERIOR COURT
CANADA
PROVINCE OF QUEBEC
DISTRICT OF		LAVAL
No:	540-36-000869-155
DATE:	February 26, 2016
______________________________________________________________________
PRESIDED BY:			THE HONOURABLE MR JUSTICE MICHAEL STOBER, J.S.C.
______________________________________________________________________
HER MAJESTY THE QUEEN
v.
STEVEN D'ADDARIO
______________________________________________________________________
JUDGMENT ON A MOTION FOR JUDICIAL INTERIM RELEASE*
______________________________________________________________________

*The hearings and this judgment are subject to a non-publication order pursuant to s. 517 Cr. C. This judgment was rendered orally on February 26, 2016. All parties were advised that this written judgment would follow.

 

[NDLE : L’ordonnance de non-publication émise dans ce dossier est présentement terminée.]

[1]           Vittorio Mirarchi, Jack Simpson, Calogero Milioto, Pietro Magistrale, Steven Fracas, and Steven D’Addario are jointly charged with the first degree murder, on November 24, 2011, of Salvatore Montagna. They are also charged with conspiracy, between September 16, 2011 and November 24, 2011, to commit the murder of Salvatore Montagna.[1] Felice Racaniello is charged with being, between November 24 and 28, 2011, an accessory after the fact to the murder of Salvatore Montagna.

[2]            On November 13, 2013, D’Addario was arrested and charged with these offences. A direct indictment followed on November 18, 2011.

[3]           D’Addario has been detained since his arrest. He has not applied for judicial interim release prior to the present motion.

[4]           This motion[2] was first scheduled to proceed on September 10, 14 and 17, 2015, but was postponed sine die at defence request. In December, new dates were scheduled and hearings proceeded on December 10, 11, 14, 15, 22 and 23, 2015. All counsel were aware that December 29 and 30 were available for further arguments, if necessary. On December 23, Crown and defence counsel stated that their arguments were complete. Judgment was reserved. On January 7, 2016, with no advance notice or request, defence counsel sent to the Court and the Crown further written argument and jurisprudence.  Although there was no valid reason for defence counsel to proceed in the manner he did, the Court permitted brief supplementary arguments on January 18.

[5]           The Court must decide if the accused has shown cause why his detention is not justified.

[6]           For the reasons that follow, the Court dismisses the motion.

 

THE FACTS

[7]           Evidence at the hearing shows that, in 2011, 2012 and 2013, D’Addario was a member of a criminal group or organization led by Raynald Desjardins and Vittorio Mirarchi. A power struggle emerged between the victim Salvatore Montagna’s criminal organization and the Desjardins/Mirarchi criminal organization. Many individuals in both clans were killed or were victims of attempted murder.[3]

[8]           It is alleged that Montagna was murdered on November 24, 2011 following a plan involving all of the accused (those charged with first degree murder and conspiracy) and Giuseppe Colapelle.

[9]           The alleged murder took place at approximately 10 am on November 24, 2011. The co-accused Simpson allegedly shot the victim with a firearm at or near Simpson’s home on Île Vaudry.

[10]        D’Addario was in contact with members of the Desjardins/Mirarchi criminal organization between September 16, 2011 and December 15, 2011.[4]

[11]         Most of the Crown’s evidence relies upon intercepted text or Pin to Pin messages that are contested by D’Addario and the co-accused. These messages are the subject of a motion which has not commenced, requesting the exclusion of these messages from the trial. There is no voice recognition. The identification of the users of the devices, hence, the authorship of the various text or Pin to Pin messages is a major issue. The Crown relies on a body of circumstantial evidence (eg. police surveillance, videos, identification of cellular phone location via cellular towers) in order to identify the authors and the recipients of these text or Pin to Pin messages.[5]

[12]        Evidence has been presented at this hearing as per sections 522(5) and 518 of the Criminal Code and includes such intercepted private communications.

[13]        The Crown called two witnesses. SQ Sergeant Detective Cédric Aubut outlined aspects of the investigation. RCMP Constable Nicolas St-Antoine reviewed pertinent Pin to Pin communications between D’Addario and others relating to the crimes alleged.  Cst St-Antoine demonstrated how circumstantial evidence would identify the accused at trial.  

[14]        Evidence demonstrates that D’Addario would have helped locate the victim, Salvatore Montagna, and monitor his whereabouts. Messages between D’Addario and Giuseppe Colapelle (since killed on March 1, 2013 in the parking lot of Beaches Bar) reflect the intention of Mirarchi and Desjardins to avenge what was believed to be an attempt on Desjardin’s life by the Montagna clan on September 16, 2011.[6] In order to carry out this plan, D’Addario was involved in illegally intercepting private communications and transmitting them to individuals involved in carrying out the killing. He would have maintained contact with the alleged co-conspirators - members of a criminal organization - over a lengthy period of time.

[15]        Evidence at this hearing shows that Richard Krolik, (known as "the Russian"), participated with D’Addario in the interception and/or disclosure of private communications of individuals in the Montagna clan. The exact role of each is not specified. However, it is clear that D’Addario transmitted these intercepted messages to Giuseppe Colapelle who then transmitted them to Mirarchi. The content of the messages reflects the intentions of the Mirarchi/Desjardins clan.

[16]        Based on wiretap evidence, the police believed that D’Addario was involved in illegally intercepting private communications from the Montagna clan. D’Addario was arrested without a warrant for this offence on January 5, 2012 at 9:10 am. He was released the same day at 5:35 pm. A search incident to his arrest produced four cellular phones (two BlackBerry, one iPhone, one Motorola), one laptop computer, two SIM cards, a GPS transmitter, accounting documents from Waxx coiffure and $6,980.00 cash. A folder found in the laptop (pursuant to a warrant) was linked to a Pin number which is part of the Crown’s evidence. One of the SIM cards is linked to a PIN number which is also part of the Crown’s evidence. D’Addario has not been charged with the offence for which he was arrested on January 5, 2012.[7]

[17]        On November 13, 2013 D’Addario was arrested pursuant to a warrant for the first degree murder and conspiracy to murder charges which are presently before the Court. Prior to his arrest that day, the police executed a search warrant at his residence. The following items were seized but provided no evidence: one Apple laptop with encrypted backup (police unable to obtain data); one black BlackBerry (no pertinent information); one white BlackBerry (no SIM card, police unable to remove data); one Acer tablet, encrypted 32Gb PGP (police unable to remove data); 28 MicroSD 2G memory cards compatible with BlackBerrys (all empty except three which contained non pertinent folders), and a blue Montreal Canadiens sweater.[8]

[18]        At the present bail hearing, the defence called one witness: Lucio D’Addario, the accused’s brother, a potential surety.

[19]        The accused’s affidavit is attached to his motion.

[20]        The testimony of Stephen Tan, Director of Operations for Recovery Science Corporation, an electronic monitoring company which installs GPS bracelets, testified before this Court on September 8, 2015, in the course of co-accused Racaniello’s motion for judicial interim release (540-36-000870-153). The Crown consented to the defence request to apply this testimony to the present motion. The Crown agrees that if D’Addario were to be released on conditions, this testimony would relate, in the same way, to D’Addario and his residence at [...], Anjou, Montréal.

POSITIONS OF THE PARTIES

[21]        The Crown pleads that  in virtue of section 515(10)(a)(b)(c) of the Criminal Code, the detention of the accused D’Addario is necessary:

(a)  to ensure his attendance in court in order to be dealt with according to law;

(b)  for the protection or safety of the public having regard to all the         circumstances including any substantial likelihood that the accused will, if          released from custody, commit a criminal offence or interfere with the         administration of justice;

(c)  to maintain confidence in the administration of justice, having regard to all the        circumstances, including:

 (i)    the apparent strength of the prosecution’s case,

 (ii)   the gravity of the offence,

(iii)   the circumstances surrounding the commission of the offence         including whether a firearm was used, and

(iv)   the fact that the accused is liable, on conviction, for a potentially      lengthy term of imprisonment.

[22]        The defence requests the release of the accused considering:

(i)      his residence in Montreal where he lived with his wife Concettina Messina            before his detention;

(ii)     the additional possibility for him to live at the residence of his brother        Lucio D’Addario, his brother’s wife and their three young daughters;

(iii)    employment offered at his brother Lucio D’Addario’s restaurant;

(iv)    the fact that strict conditions and a $50,000 judicial hypothec on the house            owned by Angelina De Souza, his brother Lucio D’Addario’s wife;

(v)     the fact that he has no criminal record.

[23]        The defence argues that although the police arrested the accused on January 5, 2012 for illegally intercepting private communications, the evidence only supports disclosing, but not intercepting, private communications. The defence further argues that the accused was never charged with this offence of intercepting. These facts, it is contended, should have an impact on this release hearing.

[24]        Defence counsel pleads that the probability of conviction is weak with respect to both the conspiracy and the murder charges. He highlights certain excerpts from the Pin to Pin messages suggesting that the criminal plan changed and no longer involved killing Montagna. Defence counsel argues that proof of intent regarding the murder charge is insufficient.

 

 

 

ANALYSIS

[25]        [88]      The Court recognizes that the accused is presumed innocent. Sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms, and the common law, protect the presumption of innocence; R. v. Pearson, [1992] 3 S.C.R 665.

[26]        Section 11(e) of the Charter guarantees the right of any person charged with an offence not to be denied reasonable bail without just cause. The Court emphasizes the interest of the public in the protection of the community and the effective administration of criminal justice. Section 515(10) Cr. C. reflects the public interest in the context of the judicial interim release regime.  This regime must remain flexible in order to reassess the accused’s status with respect to his detention or his release conditions, as his criminal case progresses through the criminal courts.

[27]        Section 522(2) of the Criminal Code provides that the accused charged with a s. 469 offence such as murder or conspiracy to commit murder, shall be detained unless he shows cause why his detention is not justified within the meaning of s.  515(10). Thus the accused has the burden of proof.

[28]        Section 522(5) renders applicable section 518(1) of the Criminal Code.

[29]        Section 518(1)(a) indicates that the Court may, subject to paragraph 1(b), make such inquiries, on oath or otherwise, of and concerning the accused as it considers desirable.

[30]        Section 518(1)(c)(iv) allows the presentation of any relevant evidence showing the circumstances of the alleged offence, particularly as they relate to the probability of conviction of the accused.

[31]        Section 518(d.1) allows the Court to receive evidence obtained as a result of interceptions of private communications under and within the meaning of Part VI.

[32]        In virtue of s. 518(1)(e), the Court may receive and base its decision on evidence considered credible or trustworthy.

Stephen Tan

[33]        At a previous release hearing involving the co-accused Racaniello, the Court found that Mr Tan was a credible and reliable witness. As mentioned, Crown and defence have agreed to apply Mr Tan’s testimony to the present hearing. While Mr Tan emphasizes the benefits of his product, he does not try to shield limitations with his company’s technology.

Lucio D’Addario

[34]        The amount of a judicial hypothec on the house belonging to Angelina De Sousa (Lucio D’Addario’s wife) is not contested by the Crown.

[35]        Lucio D’Addario owns Café du Parquet. He testifies that he would provide employment for his brother, the accused. If the Court did not see fit to allow the accused to reside with his wife Concettina Messina at the family home, Lucio D’Addario testifies that the accused could reside at his home where he resides with his wife Angelina De Souza and their three young daughters.

[36]        The Court has observed the demeanour of Lucio D’Addario, the accused’s brother, in the witness box and listened carefully to the flow of his testimony.

[37]        Lucio D’Addario knows more about his brother and his brother’s activities than he is saying. Lucio D’Addario testifies that he was in regular contact with his brother during the periods leading to the offences with which his brother stands charged. Lucio D’Addario refers to a family that meets at his parents’ residence every Sunday evening for supper. Prior to his arrest, the accused would attend as well.

[38]        Nevertheless, Lucio D’Addario claims not to know anything about the co-accused or his brother’s friends and associates except vague references to Stephen Fracas. He says that he does not know the name of his brother’s beauty salon which is in the same shopping centre strip mall as Beaches Bar. He is aware that his brother was once co-owner of Beaches Bar.

[39]        He says that he has never heard of Giuseppe Colapelle, a high-level drug trafficker[9] who, pursuant to the evidence, was in regular communication with the accused in 2011. Lucio D’Addario does not know other individuals whom the evidence links to his brother, the accused. He read in the newspaper that Colapelle was killed in front of Beaches Bar but he does not know if his brother was co-owner at that time nor does he know anything else about the killing.

[40]        There are too many conveniently selected holes in what he knows and what he does not know about his brother. He is hesitant, unresponsive and selective in his testimony. He appears uncomfortable in his role as a witness.

[41]        The Court does not believe this witness when he says that he would contact the police if his brother were to be released and breached conditions imposed by the Court. The Court is of the view that in the event that a surety is required, this witness would be unwilling and unable to properly supervise the accused, if released, and perform his duties as a surety.

[42]        The Court holds that this witness is not truthful and has no hesitation rejecting his testimony. 

Disciplinary breach while in custody

[43]        The Crown argues that D’Addario breached prison rules while in pre-trial detention in the present case. An iPhone, hidden in a toque, was found in the accused’s jail cell.[10]

[44]        It is not clear if D’Addario had exclusive access to the jail cell where the phone was found.

[45]        The Crown asked the Court to consider the alleged breach by D’Addario stating that it supports the Crown’s objection to his release. No representative of the detention centre to testified in order to clarify questions that the Crown could not answer, for example, whether D’Addario ever had exclusive use of his jail cell. As well, no follow-up information was presented as regards the seizure of the iPhone.

[46]        Accordingly, the Court attaches no weight to this alleged disciplinary breach.

 

The accused

[47]        The accused was arrested on January 5, 2012 for illegally intercepting private communications. He has not been charged for this offence.

[48]        This 30-year-old accused has roots in Montreal. He has no criminal record.

[49]        He is the owner of Coiffure Waxx. This business is in the same building as Beaches Bar. A verification with the Registre des Entreprises du Québec on January 30, 2007 indicated that D’Addario was a shareholder. Upon a second verification on November 8, 2013, D’Addario’s name was no longer linked to this establishment.[11]

[50]        The Court heard evidence that after his marriage on October 12, 2013, the accused travelled to California on his honeymoon. He left Canada on another occasion as well. Cst St-Antoine believed this to be in 2012. Defence counsel suggests that such circumstances establish the absence of a flight risk. The Court disagrees.

[51]        Although certain co-accused had been arrested at that time for murder and conspiracy to commit murder in the present case, nothing suggests that the accused D’Addario knew, during the periods he travelled, that the police possessed incriminating evidence against him regarding the present offences. The accused was arrested on November 13, 2013 and is now charged with the most serious charge in the Criminal Code. If convicted of first degree murder, he faces a sentence of life imprisonment with no possibility of parole for 25 years. Cst St-Antoine testified that the accused will likely be charged with drug trafficking as a result of the investigation in Projet Clemenza. As well, evidence shows that the accused’s acquaintances and associates during key periods of the police investigation were members of a criminal organization.

[52]        The Court has heard evidence with respect to the accused’s involvement in lucrative drug trafficking activities. He ran a drug business and was a "bookie".[12] Evidence presented shows that during pertinent periods of the police investigation, the focus of the accused’s activities was of a criminal nature rather than the management of a beauty salon.  

[53]        The Crown filed a list of D’Addario’s criminal associates, as well as certain bars or clubs frequented by such associates and himself.[13]

[54]        In R. v. Pearson, supra, pp. 695-696, the Supreme Court stated:

… trafficking in narcotics occurs systematically, usually within a highly sophisticated commercial setting.  It is often a business and a way of life.  It is highly lucrative, creating huge incentives for an offender to continue criminal behaviour even after arrest and release on bail.  In these circumstances, the normal process of arrest and bail will normally not be effective in bringing an end to criminal behaviour. …

… Drug importers and traffickers, however, have access both to a large amount of funds and to sophisticated organizations which can assist in a flight from justice.  These offenders accordingly pose a significant risk that they will abscond rather than face trial.          

Evidentiary issues

[55]        Defence counsel has highlighted certain excerpts of the Pin to Pin messages - in isolation - suggesting that the plan changed and no longer involved killing Montagna.[14] He further argues that evidence of intent is insufficient with respect to the murder charge. Considering the entirety of the evidence presented at this judicial interim release hearing, the Court rejects these positions.

[56]         A sample of excerpts from the intercepted Pin to Pin messages between D’Addario and Colapelle reads as follows (Cst St-Antoine testifies that "RD, old, Frenchman, ppp or pppp" is Desjardins; "pigtail, pra or prada" is Mirarchi; "tinman, tin, steel, ny or nancy" is Montagna; "frosty or frost" is one of the Arcuri brothers; "mg" is Moreno Gallo; "cillon, lurch or L" is Lopresti):[15]

 

September 25, 2011 (with reference to a wedding that the victim Montagna was attending in Laval):[16]

 

D’Addario: 00:27:01: All those guys are enjoying themselves at wedding at palace in laval

 

…

 

D’Addario: 00:33:49: Just know frosty and tinman are there

 

…

 

D’Addario: 00:42:51: At what time u wanna do this? 1pm? ?? Its best time! Drunk and late

 

Colapelle: 00:43:01: Are u crazy not them there gone already

 

Colapelle: 00:43:31: Bro those guys are not drinkers especially not right now they ate and left

 

Colapelle: 00:51:09: Bro I don’t know what to say or do I’m like really lost these guys are sleeping we have to act us first and wake everyone up

 

D’Addario: 00:52:00: That’s why I tell u! If u wait for them u guys are all gone!

Colapelle: 00:57:54: Bro at this time not even worth telling him anything we have to get ready and do it they sleeping looks like

 

Colapelle: 01:00:40: Fuck man if we would just of know earlier we can set up

 

D’Addario: 01:01:53: I told u you gotta have a team on stand by

 

Colapelle: 01:04:37: Ya well I’m telling couch tomorrow we set up

 

D’Addario: 01:05:02:  K

 

…

 

Colapelle: 15:15:53: I’m going to tell him now about last night so he sees they are sleeping

 

D’Addario: 15:16:26:  K

 

…

 

September 26, 2011[17]

 

…

 

D’Addario: 18:20:13: How many times u want me to ask??? What kind of hekp u want!!!

 

Colapelle: 18:30:18: 1000 percent help make u understamd exactly what he knows and how so we judge everyone right and do what has to be done

 

October 13, 2011[18]

 

D’Addario: 18:55:09: They’re meeting at 9!  Could chance that’s the place I told u…can u have someone tomo there early just to check?

 

Colapelle: 18:55:48: K

 

D’Addario: 19:02:53: Make sure pls u have at least one guy to see if that’s the office cause at least well know forr next time when they meet and he tells us its at office we know its there and u setup gameplan!

 

Colapelle: 19:03:26: Yes I know that and I’m thinking

Colapelle: 19:04:01: But if there parked inside will be hard to know unless we park outside and check if they comein parking lot

 

D’Addario: 19:04:13: There’s nothing to think! Tell him to have a few spotters there and after that my friend has a plan and we take it from there! So pls

 

Colapelle: 19:04:20: Where the fuck is this nancy guy staying

 

Colapelle: 19:04:32: Ok cool

 

D’Addario: 19:05:19: Yes I know…u know what. Lurch drives so u will know if cars pull in underground that means they’re there!

 

Colapelle: 19:08:33: Prada hasn’t answered I’m waiting

 

D’Addario: 19:09:17: Ok

 

Colapelle: 19:20:15: Can u check and see if he can gps the rim or if its east at least

 

D’Addario: 19:20:42:  Yeah he’s working on that as we speak

 

Colapelle: 19:21:18: K cool wow bro if he can gps nancy rim that’s what we need

 

Colapelle: 20:04:00: Has he gained any info

 

D’Addario: 20:07:19: Yup going to meet him tomo morning

 

Colapelle: 20:08:22: Bro tomorrow morning is the meet what yup

 

Colapelle: 20:09:28: Do we know what anyone is driving besides the flex

 

D’Addario: 20:18:13: The cherok from L!

 

Colapelle: 20:18:29:  K

 

Colapelle: 23:30:54: What’s up

 

D’Addario: 23:31:57: Dick

 

Colapelle: 23:32:15:   Nothing new       

 

D’Addario: 23:38:17: Ya we know where L lives 

 

Colapelle 23:38:36: Ya I know that tooo

Colapelle: 23:38:46: U want the address

 

D’Addario: 23:39:07: Why didn’t u tell me?

 

Colapelle: 23:39:41: Bro cause he’s really not the first choice will make everyone hide more

 

Colapelle: 23:39:58: There on him to see where he goes at all time

 

D’Addario: 23:41:10: So they. Should know his office! That’s the place he always meets steel

 

Colapelle: 23:42:14:  Bro it might be code for a place

 

D’Addario: 23:43:03: What code! They go to his office everytime! That’s what we need to find out! Tell his guys to find that place and ill tell u plan tomo

 

Colapelle: 23:43:36: K cool I told them to check that place for tomorrow

 

October 19, 2011[19]

 

…

 

D’Addario: 15:13:38: Ouff do I have to explain everything to u!!!! I said I missed his message so that was before around 130-2

 

…

 

October 25, 2011[20]

 

…

 

D’Addario: 18:14:35: Ok but christ he’s meeting all kinds of ppl! What does it take!  Do u want me to tell u where he is or else ill save my time and his time!!!! I’m in the fuclen dark here and all I get is we need to know where they are asap!!! So if ur not gonna do anything I’m gonna tell him to drop it!!!

 

Colapelle: 18:15:48: Bro u fucking nuts or what man can u fucking stop freaking on me u tell me and I tell them and I pump it up believe me fuck I want this over and fast

 

D’Addario: 18:18:08: Ok but u don’t tell me if they’re on it or not! U gotta ask cause u have no clue how long this is for us to decript everything and read every single message that comes in!

 

Colapelle:18:18:39: Bro I understand but that’s what it is man for now

 

Colapelle:18:20:17: I tell him everything bro

 

…

 

October 29, 2011[21]

 

…

 

D’Addario: 19:30:09: Ouff we missunderstood a message! He sent a guy away…tinman is in town…he’s going to eat at a resto at old port with 2 other guys…we don’t know where but its old port

 

…

 

November 1, 2011[22]

 

…

 

D’Addario: 15:57:56: Ouff I thought you had guys on him…u guys are gonna have to start doing ur share or else this is going no where at all! They won’t mention any location on rims all we know is when and who! But if u guys wait for a miracle then forget it won’t happen they’re too carefull! U have no clue how long and tiring it is to read every single message one by one cause its not the way u think we read them! Its a whole process and each message is long for us to open!

 

D’Addario: 15:59:03: Tinman wrote "430 by your park!!! " So it has to be dtown where he lives then

 

Colapelle: 15:59:06: Yes I understand that and I told u they are on it,they are going to the park and I will go check another one

 

…

 

 

 

 

November 15, 2011[23]

 

D’Addario:18:52:05: Tinhead meeting mg at 8…I don’t know if its gonna be at that cafe

 

Colapelle: 18:52:25: K cool thx and welcome back lol

 

Colapelle: 18:57:18: This guy today his rim on and off

 

…

 

D’Addario: 19:07:16: Bro u know him not me! What u want me to answer u! I’m tired of all this! I don’t know what kind of a sick game he’s playing but I’m fedup and so is my friend! They want hekp we’ve been trying our best but if all they want is scoop then tell him to go read newspaper! Fedup of everything! Frenchman is back yesterday and he’s talking to them! We don’t even know what the fuck is going on! All we know is that its fucken exhausting and no one doing nothing about it! Maybe someone has to go down for them to understand!

 

Colapelle: 19:11:05: What are they saying old and tinman he has no choice to answer bro I’m being super honest with u and I’m frustrated like u

 

Colapelle: 19:12:29: Bro I feel like fwd the message u just send me.tell R these guys are weird man. I tell u everything

 

D’Addario: 19:13:25: Ur funny! I tell him to go read newspaper!

 

Colapelle: 19:37:42: Be ya I’m funny

 

Colapelle: 19:39:28:  Bro I feel like telling him they spoke about old and they have to get to work again

 

D’Addario: 20:36:38: Well u don’t have to invent it I just downloaded the message! Pretty clear they wanna get to pig tail cause he’s gonna revenge his partner pppp and his mentality is with $ everything gets done!

 

Colapelle:  20:56:25: Who was he saying that too tinman to who frosty

 

D’Addario: 20:57:01: Come see me its mental message! Ouff at least now pra is gonna move his ass!

 

Colapelle:  20:57:41: Just tell me between who and who

 

D’Addario: 20:58:11: Frost and tin…talking about ppp and pra

Colapelle:  20:58:54: Bro let them talk copy and paste bro so I send to him let’s make him move

 

Colapelle:   21:01:07: Do they talk about mg

 

…

 

November 20, 2011[24]

 

…

 

Colapelle: 19:22:06: French guy called him back only later at night tinman and they said they would speak monday

[57]        Furthermore, on November 16, 2011 (at 11:49:31), D’Addario transferred to Colapelle, intercepted messages from the Montagna clan in which reference was made to pigtail and the issue of "her goal is to reven her ppppp".[25] On December 15, 2011 (at 22:56:12) - after the alleged murder on November 24, 2011 - D’Addario continued to transfer to Colapelle, intercepted messages from the Montagna clan, including the following excerpts:

…Anyway, the guy who got our friend he is french right?  And # 1 yesterday was asking me about the capo our friend made over there. He wanted to know if you feel he is 100% with us. He said he’s just trying to figure out who is who because he said our friend never would have went to meeting unprepared unless he trusted the guy 100%. He just thought it was strange that the capo was away those couple of days. …Ok. We are going on whatever you tell us. If you trust the cap than so do we. We are just trying to make sure noone is playing both sides understand? The thing that don’t make sense to us is even if he trusted driver why go to see a guy who was accusing you of trying to get him and not going there with guys and being prepared incase of a settup. We knew our friend very well and it just doesn’t seem like something he would do. This guy was accusing him of trying to kill him. Why in the world would you go to a meeting alone?[26]

The question of kidnapping was raised in the intercepted message.

[58]        The Crown is not basing first degree murder on s. 231(3) Cr. C. (contract killing) or s. 231(6.1) Cr. C. (for the benefit of, at the direction of or in association with a criminal organization). The Crown aims to prove its case in virtue of s. 231(2) Cr. C. - planned and deliberate murder.

[59]        Although the accused had no direct interaction with the victim or in the actual killing on November 24, 2011, factual and legal causation remain issues in determining the accused’s criminal responsibility. Section 21(1)(b)(c) Cr. C. applies even though:

·        the identity of the other participant or participants is unknown;

·        the precise role played by each participant may be uncertain;

·        the participant does not know precisely how the crime will be committed;

·        the fact that the participant did not desire the commission of the crime. 

[60]        Evidence shows that D’Addario had an ongoing role in carrying out a plan. Evidence at the hearing clearly and cogently demonstrates that he knew of the plan to deliberately kill Montagna and, with requisite purpose, he aided and/or abetted the perpetrators in the commission of a planned and deliberate murder as per s. 21 (1)(b)(c) Cr. C.; R. v. Briscoe, [2010] 1 S.C.R. 411, par. 16 -19; R. v. Pickton, [2010] 2 S.C.R. 198, par. 58, 60, 62, 64, 76; R. v. Thatcher, [1987] 1 S.C.R. 652; R. v. Maciel, 2007 ONCA 196, par. 88-89; R. v. Dooley, 2009 ONCA 910, par. 115-131; R. v. Peters (1985), 23 C.C.C. (3d) 171 (B.C.C.A.); R v. Hertrich (1982), 67 C.C.C. (2d) 510 (Ont. C.A,), par. 31-32; R. v. Gagné, [1998] J.Q. no  580 (C.A.); R. v. Wong (1992), 71 C.C.C. (3d) 490 (B.C.C.A.), par. 41-48, leave to appeal to S.C.C. refused 74 C.C.C. (3d) vi; R. v. Gray (1991), 66 C.C.C. (3d) 6 (Ont. C.A.), par. 41-49, leave to appeal to S.C.C. refused 69 C.C.C. (3d) vi; R. v. Haché, 2007 NBCA 79, par. 32; R .v. McIntyre,  2012 ONCA 356, par. 14-15.

[61]        Cases submitted by the defence with respect to first degree murder caused by a person while committing or attempting to commit another offence designated in s. 231(5) Cr. C., [formerly s. 214(5)] are of interest with respect to general principles as regards homicide, murder and causation, but are not applicable here with respect to the additional “causation” or participation requirement as per s. 231(5) Cr. C.; R. v. Nette, [2001] 3 S.C.R. 488; R. v. Harbottle, [1993] 3 S.C.R.  306. With respect, the Court is of the view that defence counsel has incorrectly stated the law on this issue as it applies to the present case. He has also misconstrued the application of s. 21(b)(c) Cr. C. - aiding and abetting.

[62]        In view of the arguments of the defence urging the Court to consider the weakness of the Crown’s case on the conspiracy charge as well, a review of certain principles is in order.

[63]        A conspiracy does not require direct proof of a formal agreement; it may be implied or tacit, and may be inferred from the evidence - direct and/or circumstantial; R. v. Paradis, [1934] S.C.R. 165; R. v. Black, 2010 NBCA 36, par. 40, leave to appeal to S.C.C. refused 261 C.C.C. (3d) iv; R. v. Gassyt (1998), 127 C.C.C. (3d) 546 (Ont. C.A.), par. 17, leave to appeal to S.C.C. refused 136 C.C.C. (3d) vi; R. v. Doucette, 2003 PESCAD 7, par. 12;  R. v. Morris (1982), 68 C.C.C. (2d) 115 (B.C.C.A.), aff’d [1983] 2  S.C.R. 190; Atlantic Sugar Refineries Co. Ltd. et al. v. Attorney General of Canada, [1980] 2  S.C.R. 644.

[64]        A person may join a conspiracy without being in direct communication with the other conspirators or without being aware of the identity of the co-conspirators as long as the conspirators act in concert in pursuit of a common goal. R. v. Wolfe (1982), 38 O.R. (2d) 367, (C.A.), par. 34-54; R. v. Lawrence (1987), 38 C.C.C. (3d) 128 (Nfld. C.A.), par. 70-72, aff’d without reference to this point [1988] 1 S.C.R. 619; Papalia v. R., [1979] 2 S.C.R. 256, pp. 276-277.

[65]        It is not necessary that each party to a conspiracy personally commit the offence or be aware of all the details of the common scheme, but it must be shown that each conspirator was aware of the general nature of the common scheme; R. v. McNamara et al. (No. 1) (1981), 56 C.C.C. (2d) 193 (Ont. C.A.), p. 465, aff’d [1985] 1 S.C.R. 662; The Queen v. O’Brien, [1954] S.C.R. 666, p. 668; R. v. Genser (1986), 27 C.C.C. (3d) 264 (Man. C.A.), par. 10, aff’d [1987] 2 S.C.R. 685.

[66]        Upon an application of evidentiary rules related to conspiracy, the acts and declarations of co-conspirators, whether indicted or not, in furtherance of the conspiracy, would be admissible against this accused at the third stage of proof in a conspiracy trial, pursuant to R. v. Carter, [1982] 1 S.C.R. 938; E. G. Ewaschuk, Criminal Pleadings & Practice in Canada, 2nd ed., Aurora, (Ont.), Canada Law Book, 1987, loose-leaf updated, December, 2015, Vol. 3, Part VI, ch. 19.

[67]        Subject to admissibility, compelling evidence with respect to the conspiracy and the acts and declarations of co-conspirators has been produced at the hearing. Thus the evidence at this stage strongly supports D’Addario’s membership in the conspiracy to kill Montagna.

[68]        There is also the question of included offences, as well as the application of s. 21(b)(c) Cr. C. to conspiracy; R. v. J. F., [2013] 1 S.C.R. 565. These issues were not addressed by the defence.[27]

[69]        It is not for this Court to go as far as defence counsel appears to suggest in weighing the evidence on the merits of the case in the same manner as a jury or a trial judge sitting alone. Nor is it the role of this Court to assess the evidence as a judge presiding at a preliminary inquiry. As mentioned, s. 518 Cr. C. provides for the nature of the evidence at this type of proceeding. Moreover, the Court underlines that the burden rests upon the accused to convince the Court that he should be released.

[70]        At this stage in the proceedings, based on the evidence produced, and subject to rulings on the admissibility of evidence, in particular the intercepted communications and proof of authorship, the charges appear to be well founded. Admissible evidence may be tested at trial and evaluated by the trier of fact.

[71]        The Court underlines judgments dismissing motions for judicial interim release in this case with respect to co-accused charged with the same offences - first degree murder and conspiracy to commit murder; R. v. Mirarchi, March 13, 2013, no 705-36-000551-125; R. v. Desjardins, July 19, 2013, no 705-36-000569-135; R. v. Magistrale, 2013 QCCS 6315.

The accused’s arrest on January 5, 2012

[72]        Defence counsel raises the fact that, on January 5, 2012, the police arrested D’Addario for illegally intercepting private communications. The defence complains that no charges for this offence followed. Furthermore, the defence states that the evidence only shows that D’Addario "disclosed" the intercepted communications but that he did not "intercept" them. The Court rejects these arguments. Firstly, no argument has been raised that the police acted with an oblique motive and that, therefore, the proceedings constitute an abuse of process. Secondly, pursuant to R. c. Storrey, [1990] 1 R.C.S. 241, pp. 249-251, the Supreme Court reasoned:

…In order to safeguard the liberty of citizens, the Criminal Code requires the police, when attempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that they have reasonable and probable grounds to believe that the person to be arrested has committed the offence.  In the case of an arrest made without a warrant, it is even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they base the arrest.

…

   In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view.  That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.

[73]        At the time of D’Addario’s arrest without a warrant on January 5, 2012, the police were not obliged to have prima facie evidence of his guilt. The police were authorized to arrest any person if they had reasonable grounds pursuant to Criminal Code provisions as interpreted by the Supreme Court of Canada, whether reasonable grounds related to the accused as a principal or as a party to the offence.

[74]        The lawfulness of an arrest is not undermined for the sole reason that the police continue their investigation after the arrest. In the present case, the Crown is not seeking to justify the accused’s detention following an "illegal" arrest so that the continuation of the investigation is free from reproach.

[75]        At this stage in the proceedings, no evidence suggests the arrest to be other than reasonable. The defence has not raised or demonstrated that the detention of the accused after his arrest on January 5, 2012 and during the continuation of the police investigation was in breach of the Charter. 

[76]        In Storrey, pp. 254-255, the Supreme Court held:

   An arrest which is lawfully made does not become unlawful simply because the police intend to continue their investigation after the arrest.  To repeat, in the case at bar the police had reasonable and probable grounds on which to base their decision to arrest the appellant.  Further, there was nothing improper about the police intention to continue their investigation of the crime after they had made the arrest. Neither that intention nor the continued investigation made the arrest unlawful. The circumstances of the arrest of the appellant did not constitute an infringement of s. 9 of the Charter.

see also R. v. Stillman, [1997] 1 S.C.R. 607, pp. 634-636; R. v. Jarvis, 1995 CarswellQue 1008 (C.A.); R. v. Grotheim (2002), 161 C.C.C. (3d) 49 (Sask. C.A.), pp. 63-64, leave to appeal dismissed, [2002] 2 S.C.R. vi.

CONCLUSIONS

[77]        Evidence shows that the accused was a part of the criminal drug milieu before his arrest. He was also involved in a criminal organization. The Court is not convinced that if released, facing a lengthy term of imprisonment, this accused would not abscond in order to avoid his trial and the potential consequences. Therefore, the Court is of the view that the accused’s continued detention is required in order to ensure his attendance in Court as per s. 515(10)(a) Cr. C.

[78]        The Court has found the accused’s brother, Lucio D’Addario, to be unacceptable as a surety. Even if a suitable surety were presented, the Court’s conclusion with respect to the first ground under s, 515(10)(a) Cr. C. would not change.

[79]        Considering the evidence and the accused’s lifestyle and acquaintances, he has failed to establish that, if released, there is presently no risk for the protection or safety of the public and no substantial likelihood that he will commit an offence or interfere with the administration of justice (s. 515(10)(b) Cr. C.).   

[80]        Considering all the circumstances, the accused has not discharged his burden of proof in showing cause why his continued detention is not justified under s. 522 Cr. C.

[81]         Although the Court holds that the accused’s detention is justified on the first and second grounds, the Court examines the application of the third ground.

[82]        Among the circumstances that the Court must consider and balance are the four factors enumerated in s. 515(10)(c) Cr. C.:

(i) the apparent strength of the Crown’s case - the evidence is highly circumstantial and potentially problematic. The Crown intends to rely on very complex but crucial evidence (Pin to Pin messages), the admissibility of which has not, as of yet, been decided and involves several hurdles for the Crown. However, if admitted at trial, evidence of Pin to Pin messages - and proof of authorship and receipt of these messages - is highly incriminating.

(ii)  the gravity of the offence - as mentioned, first degree murder is the most serious offence in the Criminal Code. The circumstances of the present offence demonstrate a planned and deliberate assassination in the context of organized crime.

(iii) the circumstances surrounding the commission of the offence (including whether a firearm was used) are serious as they involve a killing with a firearm. Although the accused had no direct contact with the deceased Montagna and was not linked to the murder weapon or the crime scene, his role was to locate and monitor his whereabouts at all times. In order to accomplish this, the accused, at the very least, intentionally transmitted illegally intercepted private communications to individuals whom he knew were involved in planning to kill Montagna. The accused would have maintained contact with the alleged co-conspirators who were members of a criminal organization, over a lengthy period of time. Evidence shows that he knew what was planned and that he played an important role leading up to the execution of the plan.

 (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment. The sentence for first degree murder under s. 235(1) Cr. C. is life imprisonment without eligibility for parole until 25 years of the sentence has been served. The sentence for conspiracy to murder per s. 465(1)(a) Cr. C. is life imprisonment.

see R. v. St-Cloud, 2015 SCC 27; R. v. Hall, [2002] 3 S.C.R 309; R. v. A.A.C., 2015 ONCA 483.

[83]        The Court concludes that, having regard to all the circumstances, the accused’s detention is necessary to maintain confidence in the administration of justice (s. 515(10)(c) Cr. C.).

[84]        Considering these circumstances, the Court is further convinced that the accused has not discharged his burden of proof in showing cause why his continued detention is not justified under s. 522 Cr. C.

FOR THESE REASONS, THE COURT:

[85]        DISMISSES the motion;

[86]        ORDERS that the accused be detained in custody.

	__________________________________ MICHAEL STOBER, J.S.C.

 

Me Alexis Gauthier Me Marie-Christine Godbout Crown Counsel
Me Jacques Larochelle
Me Annie Émond
Me Maxime Hébrard Counsel for Steven D'Addario
Dates of hearing: December 10, 11, 14, 15, 22, 23, 2015, January 18, February 26, 2016.   Transcribed and revised: March 15, 2016.