R. v. Piccinini, 2011 ONCJ 247

Citation: R. v. Piccinini , 2011 ONCJ 247 In the Matter of Bail Accused: Domenico PICCININI, 2955 Kingsway Drive, Oakville, Ontario For the Crown: Mr. J. Coppolino For the Defence: Mr. W. Fox For the Court: Justice of the Peace Richard Kivell Date of Hearing: Monday, March 7, 2011, and Wednesday, March 9, 2011 Date of Decision: Tuesday, March 15, 2011, Milton Court Room #16 Mr.

Piccinini is one of seven co-accused facing a number of criminal allegations of defrauding the public of a sum of money exceeding $5,000., participating in a criminal organization, conspiracy to defraud the public and other related offences. During the course of these proceedings new charges were placed before the Court relating to the period between May 14, 2010 and February 20, 2011. They relate to the possession of currency exceeding five thousand dollars and the transfer of proceeds of crime.

The allegation of Participating in a Criminal Organization place him in a Reverse Onus situation wherein he bears the responsibility of demonstrating to the Court why he should be released while his matters are dealt with in a Criminal Court. The Crown has concerns under the Primary and Tertiary Grounds. To summarize, the Crown has concerns the accused should be detained to ensure his attendance in court: s. 515(10) (

a) Criminal Code . He has further concerns that to release him today, the community would lose confidence in the administration of justice pursuant to s. 515 (10) (

c) of the Criminal Code . Although not initially indicated if Mr. Piccinini was release today, the Crown also has concern there is a substantial likelihood he will commit further offences or interfere with the administration of Justice referred to as the Secondary Ground. The Allegations: The Court has heard that for a period of time between 2009 and February 2011, the accused and his six other co-accused in one capacity or another entered into a detailed and co-ordinated scheme to target the older members of communities in the United States.

The perpetrators would make telephone contact with potential victims in the hope of eliciting payments necessary to secure bail for their grandchildren who were allegedly incarcerated in some distant Canadian location. The caller, once confident a relationship was established and a measure of trust secured would be aided in their venture by a co-accused on the premises that would represent themselves as a peace officer to provide a standard of legitimacy to the story.

A convincing scenario would be played out in the hopes the unsuspecting victim would electronically transfer an amount of money to gain the release of the loved one, often in excess of three- thousand dollars. These funds were directed to various and wide-spread Western Union outlets in the United States and it are alleged person(

s) yet to be determined would retrieve the monies from these various outlets. Steps were taken on a daily basis to avoid detection by changing telephone numbers. Although the investigation is still in its initial stages, the amount of the alleged scheme could involve three or more millions of dollars. The Crown alleges Mr. Piccinini and his common-law partner, Ms. Fiona Badran are the masterminds behind the venture who had recruited the other members and secured a base from which to put their plans into play.

In October, 2010, members of the Halton Regional Police began an investigation into public complaints of a fraudulent nature. Although there is some information before the Court the residence on Kingsway Dr, Oakville had earlier been used as the source of their criminal operation, the police investigation of the period between October 1, 2010 and February 20, 2011, focused on the address of 3349 Wilmar Crescent, Mississauga from which this alleged activity was originating. This home is owned by Mr. Sam Badran, father of the co- accused.

On February 11, 2011 judicial authorization was received from the Honourable Justice S. Bruce Durno to intercept conversations with the insertion of room probes and other monitoring devices to access telephone and some text conversation for the period of February 15 to February 18, 2011. The legal authorization also included a cellular telephone (Blackberry) registered to Sam Badran but used

exclusively by Mr. Piccinini. Over the four-day period, it was calculated that if all potential complainants were to send funds as the potential victims had promised, the total amount of money involved would be estimated at ninety-four thousand dollars. During the period of time police were keeping visual surveillance on the Wilmar property, it is alleged four of the co-accused were there almost on a daily basis, having attended with a use of a vehicle supplied by Mr. Piccinini. The Defence conceded police surveillance photographs identified his client at the Wilmar Cr. residence.

On February 20, 2011, police executed a search warrant on the Wilmar Crescent address and seized laptops, a cellular telephone, SIM cards, prepaid credit cards, victim lists of approximately seventeen thousand United States residents, voice headsets, scripts and police phonetics (police jargon and commonly used terms). The names of the intended victims were contained in two separate binders. One titled “East” and the other “West” having regard to the difference in time zones across the United States. Also in the residence was a paper shredder, note pads of telephone calls made and office supplies.

Visual surveillance noted the presence of a number of bags containing recyclable paper products on the appropriate waste collection days. The Court was also advised that Mr. Piccinini and Ms. Badran were arrested on February 20, 2011 at Montreal’s Trudeau airport after having passed through the Security stage while awaiting their flight with another couple to Paris, France. The Court was advised by the Defence the airline tickets included the return flight. Mr. Piccinini was in the possession of approximately four thousand, seven hundred dollars and Ms. Badran carried six thousand, two hundred Euros.

A search warrant was executed at their Kingsway Dr. Oakville residence and among other items seized from a safe in the basement was fourteen thousand, one hundred and sixty dollars in United States currency. Some information resulting from the interception of conversation shows a concern the authorities were becoming increasingly aware of their illegal activities. There is a further indication that a similar illegal operation would be resumed in Barcelona, Spain. The Court has heard Mr. Piccinini is forty-one years of age, was born in Montreal and is fluent in Italian, French and English.

He moved to the Oakville area sometime in 2008 to manage a restaurant in which his parents had a partnership. There had been a business dispute involving the restaurant and the matter is now before the civil courts. Mr. Piccinini has had no income from the restaurant for approximately two years and did not file an income tax return for last year. It is reported he has been living off his savings of between fifty and one hundred thousand dollars for that period of time. Record of Accused: The Crown submits the accused has no criminal. The Plan: The Defence presented Mrs.

Carmelina Piccinini, mother of the accused as a potential Surety. She resides with her husband at 4894 St. Suzanne St., Pierrefone, Quebec. In addition to Domenico, they have another son, Fabrizio, a bank manager who resides outside of the family home. She has worked as a travel agent on a full-time basis since 1992 and she had arranged the travel arrangements for her son, the co-accused and the other couple to fly to Europe. She had also made the arrangements for her son and Ms.

Badran to travel to the Bahamas and Aruba earlier in the year but is not able to recall the names of the other guests she made the arrangements for. In cross examination she testified Domenico does not possess any credit cards. She reports the Accused had studied to become an automobile mechanic but at some point in time he gave up his mechanic venture and returned home to help his father with the family snow removal and landscaping business. In 2007 or 2008 he moved to Oakville to manage a restaurant she and her husband had invested in.

She had never heard of the Wilmar Cr. residence and didn’t know what her son was doing for a job. She and her husband have sufficient equity in a number of income earning properties and the Plan of Release would require the Accused reside with his parents and be under their full control. The Defence also presented Mr. Giovanni Piccinini, 71 years. He administers the family business with occasional assistance from his two sons. Through the assistance of an Italian interpreter he offered short responses to questions. He reported he and his wife invested money in an Oakville restaurant for the Accused to manage.

He had met the co-accused on previous occasions and believed they were going to Europe to visit some of his son’s family relations. Mr. Fox for the Defence reminded the Court Mr. Piccinini is a Canadian born citizen with no passport other than his Canadian one. He suggested the current civil litigation involving the restaurant ensures he remains in or near this jurisdiction. He had earlier advised the Court the airline tickets included the return trip back to Canada and believes his client had only packed enough clothing for the fifteen day trip.

He submitted any concerns on the Secondary Grounds could be addressed through a strong Plan of Supervision. He was unable to find any higher court decisions related to allegations of fraud as they pertain to the Tertiary Grounds but reminded the Court these grounds are seldom used and almost always in the serious matters involving weapons, drugs and violence. The Crown addressed the Court with its concerns on the Primary Ground. Mr. Coppolino reminded the Court the Accused and co- Accused had been arrested at the airport on their way to Europe.

Earlier intercepted communication included conversation and text messages that should cause the Court to believe the Accused had concerns the police were listening and monitoring their messages. Mr. Piccinini had cautioned another co-accused to take indirect routes to the Wilmar Cr. address and to park the vehicle around the corner. He informed the Court that no property or other assets were in the name of the Accused and he was always intent of being one-step ahead of the authorities.

Intercepted communication suggested he was handing over the enterprise to another of the co-accused and the Accused had told others (not his parents, the proposed Sureties) that his trip to Europe was sixty-five percent business and thirty-five percent pleasure and that there had been discussion among the parties about “the other place” inferring additional plans to renew or implement another operation elsewhere. The Crown suggested the mere notion of him re-instituting a similar venture elsewhere is sufficient cause for concern under the Secondary Ground.

He submitted the level of the Accused’s involvement in the criminal organization would make it extremely difficult to extricate himself from further criminal activity. On the Tertiary Ground the Crown highlighted the significant level of detailed planning, co-ordination and execution of the criminal plan. The strength of the Crown’s case, the likelihood of a lengthly period of incarceration and the gravity of the offence with proceeds

that could exceed three million dollars should cause the Court concern the community would lose faith in the administration of justice if the accused was granted his release. The Decision: The strength of the crown’s case is relevant to the concerns on the Primary Grounds. The police investigation was significant and credible enough to obtain legal authorization for the use of room probes that captured conversation between the co-accused and mechanisms to monitor telephone calls to their intended victims. There was further authorization to monitor the use of a cell phone in possession of Mr.

Piccinini although the account was in the name of Mr. Sam Badran. Information presented to this Court involved the presence of an organization that required planning, organizing, co-ordination, a span of control and a hierarchy of command with subordinates who followed orders in order to produce the desired results. It is alleged the accused and Ms. Fiona Badran were the two in command. The command centre was and had been for some months centred in the home on Wilmar Cr. owned by Ms. Badran’s father.

There are a number of observations the Court has made that support the concerns of the Crown: • An intercepted communication between a co-accused and his sister on February 15, 2011 indicating he would be moving to Barcelona, Spain to take charge of the operation where his boss (Mr. Piccinini) would be purchasing “a mansion”. • Exhibit #10, a conversation via a text message on February 19, 2011 between a co-accused and a female believed to be Ms. Dana Deneny-Smith where he informs her he thinks his boss has left the country, that he has the co-accused’s money and believes the boss had been followed.

The co-accused further states he too is thinking of fleeing that he is currently in Montreal and has to “get out of here”. He didn’t know if they would be going back to the house any time soon. He also maked comments that his boss was trying to get out of Canada, that his boss felt they were being followed but “lost them” and they “should have went with our gut feeling weeks ago”. Another comment mentioned “stashing all of the laptops, washing down the house and getting out”.

The co-accused makes reference to his boss who keeps nothing on him or at home and the boss apparently had “trashed his Blackberry” and had left them the entire business. • Exhibit #7, an authorized communication interception between Mr. Piccinini and another co-accused on February 20, 2011 in which the Accused reminds the co-accused to keep his “eyeballs open” as they had earlier discussed.

There is further discussion relating to avoiding detection by avoiding having any assets in their names. • Exhibit #11, an interception of a telephone call from an unknown female to a co-accused dated February 19, 2011 at 8:49pm. The female is concerned the authorities are taping and monitoring her conversations and questions how the police would be able to carry out the technicalities. The co-accused tries to satisfy her that he knows how it can or can not be done and tries to minimize the extent of the conversation. The female is currently facing twenty three charges of fraud in Alberta.

The co-accused tells her he is “looking at twenty years in jail, not a few months” in the States because “that’s where we’re dealing it”. • Exhibit #9, an interception between a male and the Accused where they discuss the travel plans in Europe specifically from Rome “to the other place”. If the accused had made travel arrangements through this mother why would there be a reluctance to mention the name of the “other place” on the telephone? • Exhibit #6, an enlargement of an image retrieved from the cell phone used by Mr.

Piccinini believed to have been taken in the early months of 2009 in the residence on Kingsway Dr, Oakville. The photo is of stacks of paper currency resting on a table with an estimated value between fifty and one hundred thousand dollars. This exhibit supports the allegation the Oakville residence may have been used for illegal activity prior to the move to the Wilmar Cr., Mississauga centre. • A check of the Accused’s bank records show an electronic transfer on May 14, 2010 in the amount of $18,589.60 from Marens Sultani in Australia. • On October 4, 2010, Mr. Mahmoud Sultan sent a deposit to Mr.

Piccinini in the amount of fifty thousand, nine and fifty (U.S.) dollars which was retrieved from an Exchange in Toronto. • On February 2, 2010 a deposit from a co-accused, Ms. Fiona Badran to Mr. Piccinini in the amount of ten thousand dollars. This Court is required to consider the Crown’s concerns on the Secondary Ground. The Accused has no criminal record therefore any history of failing to abide by terms and conditions of a Court. The Defence submitted that a Plan of Supervision with tight restrictions could minimize the possibility of him committing further criminal offences.

The Court is also required to consider the Crown’s concerns on the Tertiary Ground. In the opinion of this Court, this is the most difficult to address. It is recognized the Tertiary Ground is seldom used and decisions from higher courts have spent considerable time and effort in an attempt create a set of standards, with varying levels of success. Section 510 (10) (

c) of the Criminal Code permits the detention of an accused person based upon the public’s reaction to the decision to release, free from any concern about the accused person absconding, re-offending or interfering with the administration of justice.

The Court is required to consider: (

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 lengthly term of imprisonment or, in the case of an offence thatinvolves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. The Defence reminded the Court the four factors mentioned above must be considered together.

Clauses (iii) and (iv) deal with thecircumstances surrounding the commission of the offence and primarily deal with firearms and the possibility of a lengthly term ofimprisonment. Clearly in this matter, there are no allegations of the use of a firearm and the Court is left to deal with the issues of thestrength of the Crown’s case, the gravity of the offence and the likelihood of a lengthly term of imprisonment. In the case of (2005), (ON CA), 203 C.C.C. (3s) 492 (Ont. C. A., per Cronk J. A. {in chambers}), in the matter of R.v.

LaFramboise (2005) at page 499, the learned Justice relied on the proposition that the law required something more than the fact thecharge was grave, potential punishment may be lengthly and the Crown had a strong case in the context of the circumstancessurrounding the commission of the offence. Cronk J. A. held that the offence features had to be considered along with the accused’slimited involvement and the questionable strength of the Crown’ case and LaFramboise was released.

In the matter before this Court, the case of the Crown is significantly enhanced with the judicially authorized interception ofcommunications, regardless of any potential Charter challenges. The evidence before the Court lends strong support for the assertion theaccused is significantly involved in the allegations and in fact is the command and control person behind the enterprise. In the case of (2007), 2007 ONCA 560 , 49 C.R. (6th) 397 (Ont.

C.A.), per Winkler C.J.O., upheld the bail judge’s decision onboth the Secondary and Tertiary ground and commented in paragraphs eight to ten “ The tertiary ground continues to apply to all personsseeking judicial interim release, whether charged with relatively minor, non violent offences or whether charged with murder. In apractical sense, it will not often be a factor in most cases, but as the nature of the offence and surrounding circumstances become moreserious, the consideration of the tertiary ground will become more relevant.

That is not to say that the tertiary ground operates toeffectively dictate the detention of all persons charged with murder. Rather, the judge must analyze the combined effect of the fourfactors set out in the subsection as explained in E. W. M. in coming to a determination on the tertiary ground”. The Bail Justice is not trying an accused and should not put himself in the place of the Judge or of the Judge and jury who willeventually try the matter. If an accused is found guilty at trial, then he may be punished according to law.

It is not the function of thisCourt to consider punishment or incarcerating an accused on the basis solely that the accused will probably be convicted. This Courthowever must be cognizant of its responsibilities under section 510 (10) of the Criminal Code. While this Court is mindful the Accused is presumed to be innocent until proven guilty and he has the right not to be denied unreasonablebail, the Court must consider the allegations and the circumstances in which they were committed. The accusations involve thesolicitation of the older and often most vulnerable members of communities.

Once a relationship with the caller was established, victimswere encouraged to make an immediate decision or commitment without divulging the extent of the “grandchild’s” in-custody matter tothird parties, which effectively limits the opportunity for consultation with others. The prevailing stereotype of elderly fraud victimsmay be that they are poorly informed socially isolated individuals who cling to old-fashioned ideas of politeness and manners thatinterfere with their ability to detect fraud. The repercussions of these contacts with the intended victims may be under-appreciated andgo unrecognized.

Little is known about the financial, psychological or emotional stability of any of these victims as they respond to theplea from a loved one for assistance. The magnitude of these allegations involve approximately seventeen thousand victims and amonetary amount in the neighbourhood of three million dollars. This only represents the financial loss to the alleged victims andsubsequent gain for the perpetrators. The psychological, financial and emotional repercussions in both short and long termconsiderations of health and wellbeing may never be fully appreciated.

The Court was advised of one matter where the elderly victimpassed away the day after she forwarded the money as directed. This Court is not in a position to infer the death was a direct result of thetrauma inflicted by the actions of the Accused but the emotional and financial implications cannot be trivialized. Mr. Fox for the Defence made the analogy the rental property on Wilmar Cr. was nothing other than a call centre commenting that “wehad all experienced them”. This Court disagrees with that comparison.

As annoying and interfering as call centres may be, these callstargeted specific members of communities with the sole purpose of relieving them of finances for the criminal gain with no product orservices provided in return. The Defence also alluded to the Toronto matter of Mr. Garth Drabinski who had defrauded a number ofinvestors out of significant monies. Again, this Court does not agree with the analogy. Mr. Drabinski defrauded investors who believethey would be generating a financial benefit and they entered into the project willingly.

The alleged victims in this scheme wereunsuspecting in nature with no prior knowledge of the events that would unfold until the phone rang and very little opportunity to plan,investigate, and seek independent knowledge or opinions. There are bail matters wherein a Court has the confidence that the Plan of Supervision will address its concerns. Any successful planrequires the efforts of both the Sureties and the Accused to respect the conditions of release set by a court. The need to monitor and bemonitored as it relates to behaviour is paramount to the successful administration of Justice.

There are some occasions where in spite ofthe willingness and sincerity of proposed Sureties to carry out their responsibilities, the Court has concerns about the willingness orability of the accused to abide by terms set by the Court. Any approved Plan could easily be in effect for a period greater than one year. This Court is required to consider whether the accused would abide by strict conditions or leave the jurisdiction and fail to attend court.

The Crown has submitted a number of exhibits that project the Accused as the mastermind of the scheme and had made plans toeventually leave the area in spite of a return airfare ticket. The intent to continue or initiate another illegal venture elsewhere has been

supported by intercepted communications. The effort undertaken to gain advantage of one of our more vulnerable segments of society causes this Court great concern. The Court has considered the totality of the evidence before it. The magnitude of the scheme, the extent of their resources and the indiscriminate targeting of one of the more vulnerable age groups in society are an issue.

The plan to continue or renew the criminal behaviour on another continent, the secrecy employed to avoid detection, the misinformation and lack of information portrayed to his family members, and the arrest while at the airport intent upon leaving for Rome and what the Accused referred to “the other place” cause this Court concern. Considering the scope of this venture and the unpredictable impact upon its victims the Court believes a member of the public would lose confidence in the administration of justice if Mr. Piccinini was granted his release.

This Court does not have the confidence in the Plan put before it. The Accused has not reversed his onus on the Primary, Secondary or Tertiary Grounds and his detention is ordered.