Court File and Parties
COURT FILE NO.: SCJ 71/17 DATE: 29/05/19 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Shultz
BEFORE: Ellies R.S.J.
COUNSEL: D. McCaig, for the Crown S. Sabourin, for the Accused
HEARD: May 29, 2019
Endorsement
Background
1Mr. Shultz applies under s. 520 of the Criminal Code for a review of the order of Justice of the Peace Mechefske made on March 15, 2019, in which she ordered that he be detained pending trial.
2The trial is scheduled to proceed in this court on July 29, 2019. Mr. Shultz is facing 16 charges, including aggravated assault, assault causing bodily harm, and threatening death.
3Most, if not all of the charges relate to a single victim and her mother.
4Justice of the Peace Mechefske detained Mr. Shultz on the secondary ground, namely that his detention was necessary for the protection or safety of the public, including the substantial likelihood that he would commit further criminal offences, if released.
5The justice of the peace was not satisfied that the plan for Mr. Shultz’s release was adequate in light of his lengthy criminal record. As the justice of the peace correctly summarized, Mr. Shultz’s record is replete with convictions for offences of violence, including uttering threats and assaults. The assaults were often perpetrated against female victims, at least nine of them according to the justice of the peace. As she pointed out, six of the convictions related to the complainant in the charges that underlie Mr. Shultz’s present detention order.
6The original plan for release called for Mr. Shultz to live with one of his victims. It also called for him to be supervised by the Elizabeth Fry Society, rather than by any particular surety.
7Mr. Shultz now has a new plan for release. He proposes to reside with and be supervised by Mr. Steve Godin. Mr. Godin is a childhood friend of Mr. Shultz’s. He resides in Notre Dame du Nord, Quebec, alone in a home he owns. Mr. Godin testified that the home is worth about $400,000 and he presently owes about $55,000 on it. In addition, he owns a number of older vehicles with a total value of about $40,000.
8Mr. Godin works seasonally with his uncle, lifting houses. He earns about $16,000 per year. Notwithstanding his rather low income, he is prepared to pledge the sum of $20,000 to secure Mr. Schulz’s release.
9It is proposed that, if released, Mr. Shultz be required to be with Mr. Godin at all times, except for the purposes of employment. I am told that Mr. Shultz would have a job with a company owned by a friend of Mr. Godin’s and an acquaintance of Mr. Shultz’s, Dany Gravelle. Mr. Gravelle was present in court during the hearing, but did not testify. Nor did he testify at the bail hearing.
Positions of the Parties
10The Crown concedes that the new plan constitutes a material change in circumstances sufficient to trigger a review of the detention order. However, it opposes Mr. Shultz’s release on all three grounds set out in s. 515(10) of the Code, namely: that if released Mr. Shultz will fail to attend court when required, the protection and safety of the public to which I referred earlier, and to maintain confidence in the administration of justice.
11On behalf of Mr. Shultz, Ms. Sabourin submits that there is no basis to detain on the primary ground. With respect to the remaining grounds, she submits that the proposed plan sufficiently addresses any concerns the court might have.
12While I agree with her first submission, I am unable to agree with her second.
Primary Ground
13There is no basis to detain on the primary ground. Notwithstanding a long record that dates back to 1993, there is only one conviction, in 2006, for failing to appear.
14However, while Mr. Shultz’s record includes only one conviction for failing to appear, it contains no less than 19 convictions for failing to comply with some form of court order, including recognizances and probation orders. Those convictions span the period from the start of Mr. Shultz’s record as a youth in 1993 to the time he was imprisoned for a period of five years plus time served in 2010. The charges he faces now include two counts of failing to comply with a court order, specifically: communicating with people with whom he was prohibited from communicating.
Secondary Ground
15The plan proposed is inadequate, in my view, to address what is clearly a well-entrenched disrespect for the justice system, in general, and court orders, in particular. I have two principle problems with it. The first relates to the proposed surety.
16I disagree with the Crown’s suggestion that Mr. Godin was evasive as a witness or that he is any way improperly motivated. Indeed, I was impressed by the quality of Mr. Godin’s evidence and his willingness to help an old friend. Nonetheless, I do agree that Mr. Godin has the wrong approach to taking on the job of surety, especially in Mr. Shultz’s case. I am troubled by the evidence that Mr. Godin did not discuss being a surety or the plan of release with Mr. Shultz.
17I am also troubled by Mr. Godin’s response to Ms. McCaig during cross-examination that nothing she could say would dissuade him from acting as a surety for Mr. Shultz. A surety should want to know the challenges he faces in living up to the significant undertaking he proposes to make to the court. Mr. Godin’s blind faith in the character of someone he has not really known since he was a child is not enough.
18I agree with Ms. Sabourin’s submission that, in effect, Mr. Godin might have spoken too soon when he said that nothing the Crown could say would change his mind about being a surety for Mr. Shultz. I am left wondering, however, if he would still want to fulfill that awesome responsibility if he knew the details of Mr. Shultz’s record, including those to which I have referred, and the fact that Mr. Shultz has been diagnosed as a psychopath.
19Even if Mr. Godin knew these things and still wished to act as a surety, I would not find the proposed plan to be adequate. As Ms. McCaig submits, the plan relies heavily on Mr. Gravelle, from whom I did not hear and who has a significant criminal record himself. Further, Mr. Gravelle “has no skin in the game”, so to speak. He stands to lose nothing if he fails to live up to Mr. Godin’s expectations.
20For these reasons, I am satisfied that Mr. Shultz should be detained on the secondary ground.
Tertiary Ground
21I am also satisfied that he should be detained on the tertiary ground. Section 515(10) requires the court to consider three factors relevant to the case at bar: the apparent strength of the Crown’s case, the gravity of the offence (or offences, in this case), and the fact that, if convicted, the accused is liable to a potentially lengthy term of imprisonment.
22The strength of the Crown’s case depends significantly on the testimony of one witness. I am told that none of the complainants provided cautioned KGB statements, although the two main complainants did testify at the preliminary inquiry. Thus, if the main complainants fail to testify, or fail to testify along the lines they did at the preliminary inquiry or to adopt their evidence from the preliminary inquiry, the Crown’s case would be significantly weakened. However, I am also told that there were eyewitnesses to some of the events. On this information, I am unable to say how strong the Crown’s case is.
23The gravity of the offences and the potential length of the prison term are clearer.
24The allegations are very serious. They include choking and attempted drowning.
25As to the potential penalty, the Crown has made it clear that, if Mr. Shultz is convicted of any of the offences he now faces, it will apply to have him declared a dangerous offender. If the Crown is successful, Mr. Shultz faces indefinite imprisonment. Based on his record and the psychiatric opinion I referred to earlier, that application stands a reasonable chance of success, depending on the specific charges with respect to which Mr. Shultz is convicted.
26In these circumstances, Mr. Shultz’s detention is also necessary to maintain public confidence in the administration of justice.
Disposition
27For all of these reasons, the application is dismissed.
Ellies R.S.J.
Date: May 29, 2019