Ontario judge rules on admissibility of evidence in online criminal gambling prosecution

By Christine Duhaime | November 30th, 2016

An Ontario court has ruled that evidence seized from the car of a person alleged to be connected to the Hell’s Angels can be admitted at trial even when that evidence was taken ostensibly under one piece of legislation, but was intended to be admitted for an investigation under other legislation.

In November 2012, Andrew Bielli was stopped en route to London after his weekly gambling collections in Toronto purportedly under the Highway Traffic Act and his car was searched. The object of the search was to obtain evidence relevant to an investigation of an illegal online gambling enterprise in Toronto called Platinum SB. The search resulted in the police seizing cash, cell phones, a laptop computer, contact numbers and nicknames of targets, names of others involved, and possibly, accounting sheets documenting bets placed with the Platinum SB organization.

The police pre-planned the detention of Bielli on the day he was stopped. And while they had reasonable grounds to arrest Bielli for criminal organization-related gambling offenses, they agreed this was not to be disclosed to Bielli in order to protect the confidentiality of the ongoing police and wiretap investigation. The plan was that the police would stop the car under the HTA if an offence was observed, or in the alternative, to advise Bielli that they wanted to check his driver’s licence. After the licence check, the police were to advise Bielli that they intended to search his car for contraband because the licence check revealed OPP information of his association with a transnational criminal organization, namely the Hell’s Angels.

As planned, Bielli was stopped for speeding, and was put under “investigative detention” arising from his affiliation with the Hell’s Angels while the police searched his car for contraband and weapons. The police located $74,000 cash in the car and seized it, as well as phones and a laptop,

Bielli’s lawyer argued for exclusion of the evidence on the basis that he was arbitrarily detained when his car was stopped, illegally searched, and because he was never “arrested”, the search was not incident to a lawful search, and therefore was contrary to the Charter.

The Court held that Bielli was told exactly what he was under investigation for, and held that the police did not have to give him any further information about the true nature and scope of the investigation. They were entitled to continue with a ruse used to stop him to protect the integrity of the ongoing investigation. If the police had informed Bielli of the true reason for stopping him, namely possession of proceeds of crime, future evidence would have disappeared because he would know that the police were aware of his activity in the Platinum SB online gambling enterprise. At that time, an undercover officer had infiltrated the organization and disclosure of the true reason for Belli’s detention would have jeopardized the undercover officer and the orderly completion of the investigation, and the Super Bowl take down planned for February 3, 2013.

The Court held that the administration of justice would fall into disrepute if the evidence was excluded because the public has an interest in seeing serious crime tried with all the evidence that supports it. If the evidence were not admitted, it would gut the Crown’s case and undermine the truth-seeking function of the trial.

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