



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Castellano, 2021 ONCA 272

DATE: 20210426

DOCKET: M52353 (C67190)

Paciocco J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Applicant/Respondent

(Respondent)

and

Daniel Castellano

Respondent/Applicant

(Appellant)

Molly Flanagan, for the applicant/respondent
    Crown

Nathan
    Gorham, for the respondent/applicant Daniel Castellano

Heard: April 23, 2021 by video
    conference

ENDORSEMENT

OVERVIEW

[1]

Pursuant to s. 679(6) of the
Criminal

Code
,
R.S.C. 1985, c. C-46, the Crown applies for an order
    revoking Coroza J.A.s bail release order, dated January 29, 2021, which
    extended the release of the respondent, Daniel Castellano. Mr. Castellano
    opposes the Crowns application.

[2]

In the event I grant the Crowns application,
    Mr. Castellano brings his own application for release pending appeal.

[3]

For reasons that follow, I am revoking the bail
    release order and denying Mr. Castellanos request for release pending appeal.

MATERIAL FACTS

[4]

On August 13, 2019, Harvison Young J.A. ordered Mr.
    Castellano released on bail pending his appeal of his April 30, 2019 convictions.
    Those convictions related to an explosion inside a pickup truck parked at a
    tractor repair business.

[5]

At the time of the explosion, Mr. Castellano was
    in a dispute with the owner of the tractor repair business. During the
    execution of a search warrant at Mr. Castellanos residence, the police found
    an arsenal of weapons, including pipe bombs in various states of manufacture,
    as well as loaded handguns.

[6]

In connection with the explosion in the pickup
    truck, Mr. Castellano was convicted of mischief to property, two counts of
    possessing a dangerous weapon, and placing an explosive device in the pickup
    truck. The discovery of the arsenal and the explosives led to his conviction
    of twelve counts of possession of substances intended to be used to cause an
    explosion, and three counts of careless storage of a firearm. He was also
    convicted of possessing stolen property found during the search, and possession
    of marijuana. Mr. Castellano received a sentence of 1,888 days in custody after
    credit for pre-trial custody of 142 days.

[7]

On May 3, 2019, while awaiting his sentencing,
    the trial judge revoked Mr. Castellanos bail. In doing so she relied on her
    finding that Mr. Castellano had made admissions that at the material time he
    was waging a war. She also relied on Mr. Castellanos beliefs about the
    police and a labour union attacking his property as indicative of some sort of
    instability on the part of Mr. Castellano, thereby increasing his risk to the
    public. Mr. Castellano remained in custody until released pending appeal by
    Harvison Young J.A.

[8]

On several occasions, Harvison Young J.A.s bail
    pending appeal order was amended on consent to extend Mr. Castellanos release,
    most recently by Coroza J.A. on January 29, 2021, who ordered his bail extended
    until May 1, 2021. Mr. Castellanos bail release was uneventful for more than
    18 months, until March 28, 2021.

[9]

On March 28, 2021, as the result of complaints
    from neighbours about explosions they believed had occurred in the direction of
    Mr. Castellanos property, police officers executed a search warrant on his
    property. The police discovered and seized ammunition. They also discovered and
    seized a container of acetone, pipes, and fittings, items police believed were capable
    of being used in bomb-making.

[10]

Mr. Castellano was not present at the time of
    the search. He later complained to a neighbour that items had been stolen from his
    property.

[11]

When police visited the property again on March
    30, 2021 and arrested Mr. Castellano, his vehicle was searched. Mail that did
    not belong to him and lock-picking kits were found in his possession.

[12]

Mr. Castellano has now been charged with: (1)
    disobeying Coroza J.A.s bail order by possessing ammunition in breach of the
    terms of that order, contrary to s. 127 of the
Criminal

Code
;
    (2) possession of break-in instruments, contrary to s. 351(1) of the
Criminal

Code

(relating to the lock-picking kits); (3) possession of stolen
    property, contrary to s. 354(1)(a) of the
Criminal

Code
(relating to the mail); (4) theft of mail, contrary to s. 356(1)(a)(i) of the
Criminal

Code
; and (5) possession of an explosive substance with intent,
    contrary to s. 81(1)(d) of the
Criminal

Code

(collectively,
    the new charges).

[13]

All the new charges are either for straight
    indictable offences, or hybrid offences that are deemed to be indictable
    offences pending Crown election.

[14]

Mr. Castellano has now been released on the new charges
    pursuant to an Ontario Court of Justice bail release order dated April 21, 2021.
    The parties agreed that the terms of that order are essentially identical to
    the terms imposed by Coroza J.A.

[15]

Mr. Castellano remains in custody pending the
    disposition of the applications now before me.

ISSUES

[16]

The Crown brings an application before me
    pursuant to s. 679(6) of the
Criminal

Code

to revoke
    Coroza J.A.s bail release order of January 29, 2021.

[17]

Mr. Castellano contests the Crowns application but
    applies for bail pending appeal in the event I do revoke Coroza J.A.s release
    order.

[18]

I will address the two applications in turn.

ANALYSIS

A.

The Bail Release Order of Coroza J.A. Is Revoked

[19]

By virtue of s. 679(6) of the
Criminal

Code
, s. 524(3) of the
Criminal

Code

is
    incorporated into the bail pending appeal regime. By virtue of s. 524(3)(b), I
    am required to cancel Mr. Castellanos release if I find there are reasonable
    grounds to believe that [Mr. Castellano] has committed an indictable offence
    while being subject to the  release order.

[20]

The Crown may face challenges, identified in
    the arguments before me, in establishing several, if not all, of the new
    charges. There are, however, reasonable grounds to believe Mr. Castellano has
    committed an indictable offence while subject to Coroza J.A.s release order. I
    need only refer to the items found in Mr. Castellanos truck to make the point.
    The proposed
Charter

challenge to the search that led to the
    discovery of those items may prove successful, or Mr. Castellanos explanations
    may be credited after trial, but those are trial matters. It is not contested
    before me that lock-picking kits and mail not belonging to Mr. Castellano, some
    of which has now been reported stolen, were found in a place that he apparently
    controlled.

[21]

This is enough to require that Coroza J.A.s
    order for release be revoked, and I do so.

B.

THE Application for Bail PENDING APPEAL is Denied

[22]

Although the onus is on Mr. Castellano to
    demonstrate that he should be released pending appeal, it is convenient to
    begin with the Crowns position.

The Crowns position

[23]

The Crown does not contest the finding of
    Harvison Young J.A. that Mr. Castellanos appeal is not frivolous. Nor does it
    dispute that, on the balance of probabilities, Mr. Castellano will surrender
    himself into custody in accordance with the terms of the order. The contest is
    about whether he has demonstrated on the balance of probabilities that his
    detention is not necessary in the public interest.

[24]

The Crown contends that, even prior to the new
    charges, Harvison Young J.A. found it was a close case as to whether Mr.
    Castellano had established that the reviewability interest outweighed the
    enforceability interest. The Crown argues there have been two material changes which
    now show that enforceability must predominate.

[25]

Most importantly, Mr. Castellano faces new and
    related charges, which heightens the need to protect the public.

[26]

Moreover, a driving consideration in Harvison Young
    J.A.s decision was concern that the inherent delay in moving appeals forward
    could result in Mr. Castellano serving most of his sentence before having had
    the opportunity to challenge the underlying convictions on appeal. Mr.
    Castellano acknowledges that he is days away from perfecting his appeal,
    assuring it can be heard without significant delay.

[27]

The Crown submits that the balance has now
    shifted, requiring Mr. Castellanos detention pending appeal.

[28]

The Crown also points out that the sureties Mr.
    Castellano proposes were his sureties when the new charges arose. The Crown
    submits the new charges now call into question the sureties ability to assure
    the public safety.

Mr. Castellanos position

[29]

In support of his application for release
    pending appeal, Mr. Castellano notes that public safety was the primary concern
    when he first applied for release pending appeal. He had just been convicted in
    connection with explosives offences allegedly related to a business dispute,
    and of being in possession of loaded handguns and bomb-making material at a
    time when the trial judge believed him to be mentally unstable with paranoid
    delusions. According to Mr. Castellano, events since then have not aggravated the
    concern about the risk he poses to public safety; they have lessened it.

[30]

Specifically, more than 18 months passed without
    incident before the new charges. By their nature, Mr. Castellano submits those new
    charges do not demonstrate an immediate threat of violence to anyone.

[31]

Indeed, further investigation has now shown the
    explosions allegedly heard on Mr. Castellanos property leading to the search
    warrant had not, in fact, occurred on his property, but on a neighbours land.
    More importantly, Mr. Castellano says the new charges he faces, especially the
    charges that might arguably appear to raise the risk of violence, are weak.

[32]

The ammunition was found in one of the three
    buildings on the property, and there are contradictions in the disclosure
    relating to which of the buildings it was. Mr. Castellano shares access to the
    property with the three sureties. The inference that he possessed the
    ammunition is no stronger than the inference that any one of them may have done
    so, an outcome that will lead to his acquittal unless the strength of the Crown
    case changes.

[33]

Although Mr. Castellanos post-search complaint
    about items missing from the property can be used to attempt to link him
    circumstantially to the acetone, pipes, and fittings, the Crown will be
    challenged in proving that those items were possessed for the purpose of
    bomb-making. The acetone was in a quantity suitable for domestic cleaning and
    was discovered stored with other cleaning products. The pipes are small and thin,
    and arguably less suitable for bomb-making than larger pipes would be. There are
    no apparent signs that the items were being used to build an explosive device. The
    investigating police force has now conceded that an expert witness cannot
    assert, based on the evidence, that the acetone, pipes, and fittings were
    possessed for the purpose of bomb-making.

[34]

Mr. Castellano has also offered what he submits to
    be credible, innocent explanations for his possession of the lock-picking kits
    and the mail that did not belong to him.

[35]

In the circumstances, Mr. Castellano submits he
    has discharged his onus of establishing that he should be released pending
    appeal on the terms contained in Coroza J.A.s bail release order. He suggests
    that if I credit the Crowns submission that the new charges weaken confidence
    in the sureties, the order can be augmented by preventing him from being
    outside his home unless accompanied by one of the sureties, and that an
    electronic monitoring order can be made.

The enforcement interest outweighs the
    reviewability interest in this case

[36]

Notwithstanding the thoughtful arguments Mr.
    Castellano advanced before me, in my view, a thoughtful, dispassionate person
    informed of the circumstances of the case and respectful of societys
    fundamental values would conclude that the enforcement interest outweighs the reviewability
    interest.

[37]

First, in my view, the deep concern about public
    safety arising from the nature of the charges under appeal is now heightened by
    the new charges. Mr. Castellanos original release was a close case because
    the nature of the offences, and the circumstances in which he was convicted of
    those offences, posed a risk to the public of calamitous harm. Mr. Castellano
    has now been arrested on related offences. I appreciate the weaknesses in the
    new charges, and that Mr. Castellano is presumed to be innocent of them, but
    ultimately a bail release determination is an exercise in risk assessment. The discovery
    of ammunition and potential bomb-making material on property Mr. Castellano has
    been accessing is a matter that would concern a reasonable member of the
    public, in all the circumstances. His re-release would imperil public
    confidence in the administration of justice.

[38]

Even leaving the ammunition and bomb-making
    charges aside, there are reasonable grounds to believe that while on bail
    release Mr. Castellano possessed break-in instruments in his vehicle, where
    they could be readily accessed while he was mobile, and stolen mail. I agree
    with the Crown that the commission of any indictable offence while on bail
    release for violent offences works to undermine confidence in the public safety
    by raising the risk that the bail order, which is expected to assure public
    safety, may not be respected.

[39]

Allowing for the fact that it was difficult to
    assess the strength of Mr. Castellanos grounds of appeal, Harvison Young J.A.
    expressed the preliminary view that the grounds of appeal presented before her were
    not strong. That observation has not been called into question before me. Accordingly,
    Mr. Castellano is not able to marshal the strength of his appeal as a basis for
    prioritizing the reviewability concern.

[40]

This is no longer a case where detaining Mr.
    Castellano presents the risk of making the appeal moot on the basis that he would
    likely serve his sentence pending appeal. The appeal can now be prosecuted
    without the same concern for delay that influenced Harvison Young J.A. to come
    down on the side of release.

[41]

I agree with the Crown that there are new
    concerns about the sufficiency of the proposed sureties, given the new charges.
    Moreover, part of Mr. Castellanos proposed defence to the ammunition charge as
    shared before me is that the Crown will be unable to prove whether the
    ammunition was possessed by him or rather by one of his sureties. This is a
    legitimate defence for him to advance at his trial, but it does not enhance
    confidence in his release that either he or his sureties possessed ammunition
    on property to which he has access.

[42]

In the circumstances, even bearing in mind his
    suggestion that additional conditions could be added, Mr. Castellano has not
    convinced me that the reviewability interest takes precedence over the enforceability
    interest.

CONCLUSION

[43]

Mr. Castellanos bail release is revoked and his
    application for release pending appeal is denied. The draft orders revoking Mr.
    Castellanos bail release and for his arrest that were submitted by the Crown
    with its application will issue.

David M. Paciocco J.A.


