R. v. Foianesi, 2011 MBPC 70

CITE# 2011 MBPC 70 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Libby Standil, ) for the Crown - and - ) ) Saverio Colosimo and Spyras Lefas, ) ) ) Richard Wolson, Q.C., for the Accused Accused ) ) Reasons for Sentence delivered: ) October 24, 2011. R.L. POLLACK P.J. [ 1 ] On May 24, 2007 the Winnipeg Police Service executed a search warrant at the site of a Corydon Avenue poker game facilitated in part by Saverio Colosimo and Spyras Lefas.

Four years, three months and twenty days later they appeared before me and entered pleas of guilty to one count of keeping a common gaming house. [ 2 ] After hearing submissions and reviewing a series of character testimonials concerning each offender, I chose to discharge each, absolutely, and to assess a victim surcharge of $2,000. In addition to forfeiture of moveable property that was seized, I ordered the sum of $1,185 seized from Mr. Colosimo and $670 seized from Mr. Lefas to be forfeited as proceeds of the unlawful poker game.

What follows are my reasons for granting an absolute discharge. [ 3 ] The poker game was advertised on the internet; its existence was not hidden. During an eleven-week police surveillance, it is estimated that the three men earned a total of between $8,000 and $12,000. The May 24, 2007 execution of the search warrant was, I am told, a dramatic conclusion to Project Kaleidoscope, an investigation of unauthorized Texas Hold’em poker by the Winnipeg Police Service. [ 4 ] Not surprisingly, it took some time for the charging, disclosure obligation and lawyering processes to be completed. In January of 2009 Mr.

Foianesi entered a guilty plea to one count of keeping a common gaming house. On August 11, 2010 he was sentenced to a fine of $14,000 which was the subject of an appeal. His appeal was heard on March 8, 2011 and Chartier J.A. delivered a unanimous judgment allowing the appeal on April 11, 2011( R. v. Foianesi, [2011] M.J. No. 115 ). Mr. Foianesi was given a conditional discharge with a one-year term which included 150 hours of community service.

The panel indicated that, had the Provincial Court proceedings not taken so long, it would have imposed a two-year conditional discharge. [ 5 ] Counsel involved in the matter before me decided to treat Mr. Foianesi’s case as a yardstick for measurement of an appropriate disposition in their case. The defence agreed not to use the inherent delay as a basis for Charter relief and the prosecution agreed to await the outcome. Following the imposition of the fine a sentence appeal was filed. Counsel continued to agree to wait and use the Court of Appeal as a barometer for an appropriate disposition.

That must have seemed like a good idea because, as Chartier J.A. observed in his first paragraph, it was 1959 when his court last heard about illegal card games. [ 6 ] The 2011 Court of Appeal panel articulated clearly the justification for a discharge in the case of each of the offenders. The prosecutor urged me to impose discharge terms similar to those of the Court of Appeal but, given some unique circumstances, the defence sought an absolute discharge. In my opinion, an application of the Foianesi precedent to this case justifies an absolute discharge. [ 7 ] Not only did Mr. Colosimo and Mr.

Lefas demonstrate a willingness to perform community service but each contributed more than 150 hours prior to his sentencing hearing. Each offender, having been released by police on an appearance notice, kept the peace and conducted himself with good behaviour for almost four and one-half years. In my opinion, that good behaviour and community service articulated an even stronger justification of a discharge than in the case before the Court of Appeal. [ 8 ] The antecedents of each offender indicate individual accomplishment, trustworthiness and good citizenship. Mr.

Colosimo is involved in local restaurants and lounges as a proprietor and Mr. Lefas represents the second generation in a well known local family business. As their supporters’ letters indicate, each enjoys the respect of many who are willing to vouch publicly for his good character. [ 9 ] Given the amount of time that has passed (without prosecutorial objection) since the arrest and release of each offender, his good conduct in the interim and specific contribution of community service, the public interest calls for no more than an absolute

discharge. The substantial contribution to Manitoba’s fund for crime victims as mandated by the appeal panel represents a form of restorative justice. A forfeiture order confirms the Court’s denunciation of the offenders’prohibited poker pastime. [ 10 ] In pleading the merits of an absolute discharge, defence counsel made the point that it was a business requirement for each to travel to the United States and that border clearance would be easier if an absolute discharge was granted. I have not been provided with authority for that proposition.

I inquired whether either had applied for a border crossing card in the interim and was told that they have not done so. Even if evidence established that an absolute discharge constituted less of a barrier to United States immigration then a conditional discharge, that proposition would carry much less weight than the factors that I have previously outlined. “Original Signed by” R.L. POLLACK P.J.