ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIMJ(P)1857/19 DATE: 20200603

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

• and -

Marc Issa El-Khoury Applicant

COUNSEL: B. McGuire and D. D’Iorio, for the Crown G. Grill, for the Applicant

HEARD: May 25 & 26, 2020

APPLICATION FOR BAIL

RESTRICTION ON PUBLICATION

Pursuant to s. 517(1) and 522(5) of the Criminal Code, these reasons shall not be published in any document, or broadcast or transmitted in any way before such time as: (a) if a preliminary inquiry is held, the accused is discharged; or (b) if the accused is tried or committed for trial, the trial is ended. This prohibition is subject to an exception that permits a lawyer to circulate these reasons to another lawyer or to rely on them before any court.

Baltman J.

Introduction

[1] This case involves a highly organized, gangland-style execution of a full patch member of the Hell’s Angels motorcycle club.

[2] On March 11, 2019, the victim, Mr. Deabaitua-Schulde (known as “Diaz”) was gunned down by two assailants as he was leaving the gym which he habitually attended each morning. The two men fled the scene in a blue Honda, driven by a third man. At the time of the takedown, Diaz was under surveillance by the Ontario Provincial Police (“OPP”), who, covertly stationed outside the gym, immediately became aware of the shooting. They followed the three perpetrators to a nearby second location, where a fourth man was waiting in a black Sante Fe. There, the first getaway car was set on fire, and the four cohorts then left in the second getaway car.

[3] The police believe the second getaway car was driven by the applicant. Along with the other three men, he faces a charge of first-degree murder. He has not had a preliminary inquiry. On November 9, 2019, the Crown preferred an indictment against all four accused. Their joint trial is set to begin on January 18, 2021.

[4] The applicant applies pursuant to s. 522 of the Criminal Code to show cause why he should be released. He is now 27 years old, and is currently detained at the Hamilton Wentworth Detention Centre (“HWDC”). Due to the COVID-19 pandemic and the temporary closure of the Superior Court of Justice courthouses, this bail application proceeded by way of a recorded tele-conference, which I conducted on May 25 and 26, 2020. The applicant participated by telephone from the HWDC. He was present on the phone call throughout, facilitated by prison staff. Also on the phone for a portion of the hearing was the applicant’s father, Gerrad Issa El-Khoury, who is the sole proposed surety, and Detective Morash, the officer in charge of the case. Both underwent cross-examination.

[5] In support of the application, counsel filed numerous documents electronically. On behalf of the applicant, Mr. Grill filed the following: a Notice of Application for bail; affidavits of the applicant and his father; supporting case law; documentation from Recovery Science (for a GPS bracelet); and an affidavit from Dr. Aaron Orkin, dated May 20, 2020.

[6] While Dr. Orkin updates and expands upon his previous affidavit of April 7, 2020, his ultimate conclusion remains the same: any current interventions to combat COVID-19 within prisons have minimal effect. To truly safeguard the health of the prisoners and prison staff, and also avoid the spread of COVID-19 within the public in general, the best approach is “decongregation” (i.e. releasing prisoners).

[7] Crown counsel also filed numerous materials, including: a detailed case summary; transcripts of statements by the applicant and his father; the applicant’s youth and adult criminal record; [1] relevant jurisprudence; and a “Response to COVID-19” Information Note from the Ministry of the Solicitor General, dated May 12, 2020. The latter sets out the institutional strategy for dealing with the pandemic for inmates, statistics respecting testing, and testing results for staff and inmates for COVID-19. It indicates that:

• As of May 20, 2020, one inmate and one staff member from HWDC had tested positive for COVID-19. The inmate’s condition has already resolved;
• The inmate count at HWDC has dropped from 568 (as of March 16, 2020) to 381 (as of May 21, 2020), a reduction of 33%.

Factual Allegations

[8] In the mid-morning of March 11, 2019, two shooters positioned themselves outside of the Huff Gym in Mississauga. They were waiting for their victim, a full patched Hell’s Angels member known as Diaz, to emerge. When he did, they fired several shots at him in the parking lot. Injured and bleeding, Diaz ran back into the gym. The shooters followed him inside, where they continued to fire at him. After Diaz collapsed, the shooters ran back into the parking lot and entered an awaiting blue Honda, with a third individual at the wheel, and sped away. They soon met up with the second getaway vehicle, a black Sante Fe, allegedly driven by the applicant. The Honda was set on fire and all four men then drove away in the Sante Fe.

[9] Unbeknownst to the four men, Diaz was under surveillance by the OPP at the time of the shooting. The OPP team that was positioned outside the Huff Gym was alerted by the gunshots, and followed the Honda to its meet up with the Sante Fe. The accused parties were captured on surveillance footage and later identified as:

• Marckens Vilme and Brandon Reyes (the two shooters);
• Joseph Pallotta (driver of the Honda getaway car); and
• The applicant, Marc Issa El-Khoury (driver of the Sante Fe getaway car).

[10] All four men were based in Montreal. The police believe they came to Toronto a few days before the murder to prepare. Mr. Vilme and Mr. Issa El-Khoury stayed in a downtown apartment. Mr. Reyes and Mr. Pallotta were in a Brampton motel. After the shooting, all four men returned to Montreal.

[11] On March 13, 2019, two days after the shooting, the police arrested Mr. Vilme and Mr. Reyes together in the second getaway car in Montreal. Mr. Pallotta turned himself in on March 18, 2019, after media coverage announced that he was wanted for the murder.

[12] The following day, March 19, 2019, the applicant attempted to cross the border into the United States but was denied entry. He returned to the border with his father on the next day (March 20, 2019), and was arrested during that second attempt to cross the border.

[13] For the purposes of this application, the applicant concedes that the Crown could establish that he was the driver of the second getaway vehicle.

Legal Framework

[14] Because the applicant faces a charge of murder, by virtue of statute this is a reverse onus situation, meaning that he must prove that he is eligible for release under s. 515(10) of the Criminal Code. The Crown opposes his release under all three grounds, arguing his detention is necessary because: a) he is a flight risk; b) he is a danger to the public; and c) public confidence in the justice system would be eroded by his release.

[15] To address those issues, the applicant proposes that if released, he would return to his home city, Montreal, and live with his father, Gerrad Issa El-Khoury, the sole surety being advanced. He further proposes 24-7 monitoring by an electronic ankle bracelet (GPS), with the cost to be borne by him.

Submissions and Analysis

The Primary Ground

[16] This ground examines whether detention is necessary to ensure the accused’s attendance in court. In his text “The Law of Bail in Canada”, Trotter J.A. sets out six factors that may be relevant to this inquiry. Here, I have re-ordered those factors somewhat, to parallel their relevance to this particular case.

i. The Applicant’s Behaviour Prior to Apprehension: Flight or Surrender

[17] First and foremost, the applicant’s behaviour prior to his apprehension is alarming. Not only did he travel to Ontario to commit this crime, the evidence strongly suggests that afterwards he made two separate attempts to flee from his home province (Quebec) into the United States. On the first occasion, he was accompanied by two other individuals, and on the second - only one day later and at a different border crossing than the first – he travelled with his friend (Sasa) and with his father, the proposed surety.

[18] Mr. Grill argued there is evidence showing that neither trip demonstrates an attempt to flee. On the first attempt, it was Sasa who was rejected at the border. On the second occasion, the trip was prompted by his father’s desire to visit his girlfriend, who resides in West Virginia. His father did not wish to drive alone, so the applicant and Sasa came along, intending to take some holiday time in the United States (Sasa drove as the applicant’s license was under suspension due to an outstanding impaired driving charge).

[19] Both arguments are weak. Irrespective of whether it was the applicant’s friend or both men who were rejected on the first attempted crossing, it is undisputed that the applicant was heading to the United States. He was not simply transporting his friend to the border; he was also trying to leave Canada. Given the media coverage of this crime, he must have known that he was wanted by the police here.

[20] As for the second attempted crossing on the following day, I find the surrounding circumstances very implausible. The applicant’s father testified he was unaware that police were searching for his son. He explained that his girlfriend was unwell and ingesting “too much salt”, and he hoped that by visiting he could persuade her to see a doctor. Although he had been in a long-distance online relationship with this woman for many years, and she had been sick for some time, he apparently decided to visit her in person for the first time just days after his son was implicated in a high-profile murder. Given those circumstances, I find both the timing and the alleged purpose of the second trip suspicious. Coupled with the first failed attempt, the applicant’s behaviour prior to apprehension causes grave concern.

ii. Nature of the Offence and the Potential Penalty

[21] This was a well-organized murder of a member of a prominent criminal organization. The evidence suggests it was carefully planned and executed: surveillance on the victim (from a tracking device found in his car) revealed his habitual attendance at the Huff Gym every weekday morning; four men traveled into Ontario several days in advance of the murder; two getaway cars were employed to ensure the assailants could not be connected to any car spotted at the scene; the first getaway car was torched to further weaken any link to the accused; and immediately after the murder, all four accused quickly removed themselves from the province.

[22] These are sophisticated gangsters who have the means to flee. Moreover, given the mandatory life sentence without parole for 25 years, there is a strong motivation to do so.

iii. Strength of the Evidence Against the Accused

[23] The Crown has a strong case. There is video evidence of all the men checking into their respective hotel and apartment accommodations a few days before the shooting. On the day of the shooting, Mr. Pallotta is seen on video purchasing and filling two large gas containers, which he then puts into the second getaway vehicle. All four men are seen together inside the Brampton motel, and then leaving the motel together in the two getaway vehicles. The two shooters (Mr. Vilme and Mr. Reyes) are captured on video at the scene. Mr. Pallotta has admitted to driving the first getaway car with the two shooters inside. After the shooting, video shows the three occupants of the first getaway vehicle setting it on fire and then jumping into the awaiting vehicle, driven by the applicant.

[24] Mr. Grill argues that while the Crown may have a strong case against the other three men, there are triable issues in relation to the applicant. They include whether he had knowledge of the plan to murder the victim, whether he did anything that caused the victim’s death, and whether he could have possessed the necessary mens rea due to intoxication.

[25] However, that submission relies greatly on the statement police obtained from Mr. Pallotta, his co-accused, in which he describes the applicant as “drunk” before and during the takedown, and portrays the applicant as a mere secondary driver who may have been unaware of the plan to murder.

[26] On that point, there are two obstacles the applicant must overcome. First, in a joint trial (as this is), that statement would not be admissible for (or against) the applicant.

[27] Second, even if the applicant succeeded in obtaining a severance, and Mr. Pallotta testified in accordance with his statement, it does not accord with the rest of the evidence or with common sense. The applicant travelled from Montreal with one of the shooters (Mr. Vilme) two days in advance of the murder, lodged with Mr. Vilme in an apartment here for two nights, gathered with the three other assailants at the motel in the morning hours before the murder, drove the secondary car to a separate location where he waited for the others, and then watched the first getaway car go up in flames before he drove all four of them away. Impaired or not, he managed to be intricately involved in the operation. The idea that he was unaware of the plan or his role within it lacks credence. What did he think was going on?

[28] In sum, while the applicant was not one of the shooters, there is compelling evidence that he knowingly participated in the planning and execution of this murder.

iv. Ties to the Community

[29] The applicant has no known ties within Ontario. The plan of release is for him to reside in Montreal. There he has two parents (who are separated but on amicable terms) and three siblings. But only his father has volunteered to supervise his release. And beyond family, there is nothing binding him to remain in Canada. He is not attending school (he did not complete high school), and in his affidavit, he states he has not been gainfully employed for the past three years.

[30] The applicant’s father testified that the applicant has a girlfriend in Quebec whom he plans to marry. However, the applicant makes no mention of her in his affidavit. That may be because his intentions toward her are not entirely romantic. During cross-examination, the applicant’s father stated that his son is financially supported by his girlfriend’s earnings as an exotic dancer, and that he has been trying to persuade her to work in Toronto because he believes she will earn more money there.

v. The Plan of Release

[31] As noted, the applicant’s father is the sole proposed surety. The plan is for the applicant to reside 24-7 within his father’s home and be permitted to leave only in his company. His father has pledged $75,000 to secure his son’s release, which is all the savings he has. In addition, the applicant will wear a GPS ankle monitoring system.

[32] In the circumstances of this case, that plan offers little, if any, reassurance. I have already identified concerns about the applicant’s father’s reliability. Even if he unwittingly helped his son in a previous attempt to get across the border, it is clear that the applicant has so little regard for his father that he was prepared to implicate him in an attempt to escape.

[33] There are other examples of the father’s apparent lack of control over or familiarity with the applicant. He does not know his son’s cellphone number. The applicant comes and goes from his apartment without notice. He is not happy that his son is being supported by an exotic dancer, but seems to have no influence over the situation. In his affidavit, he makes no reference to his son earning any income, but in his testimony, he stated that he and his son are running a bitcoin operation out of his apartment that generates approximately $600 per month.

[34] Finally, the addition of a GPS bracelet offers little reassurance here. In the right case, monitoring can be a powerful deterrent. But monitoring cannot prevent conduct breaches or geographical breaches. And should a breach occur, police will only be notified after the fact. The inevitable delay in their ability to respond means the damage may already be done: R. v. Jesso, 2020 ONCA 280, at paras. 23-28. In this case, in particular, there is nothing to prevent the applicant from cutting off the bracelet and fleeing over the border, a very realistic concern here given: a) the applicant’s two previous attempts to flee; b) his limited ties to Canada; and c) his strong motivation to avoid a life sentence arising from a compelling Crown case.

[35] Courts in similar cases have observed that where the accused is implicated in a carefully planned gangland-style execution, the proposal to wear a bracelet does not assuage the inherent flight risk: R. v. Douse, 2020 ONSC 2811, at para. 77; R. v. Smith, 2020 ONSC 1889, at paras. 65-76.

vi. The Accused’s Criminal Record and Compliance with Previous Court Orders

[36] The applicant has a dated but significant record as a young offender. It includes convictions for assault with a weapon, obstructing a police officer, and possession of forged credit cards.

[37] More troubling for this application, it also contains six convictions for failure to comply with court orders, three while he was a young offender and another three shortly after he reached 18 years of age. While many years have passed since then, when combined with the two attempts to flee Canada shortly after this murder, the impression is of someone who will have little regard for any court-imposed restrictions.

Conclusion on Primary Ground

[38] In this case, I find all six factors demonstrate that detention is necessary to ensure the applicant’s attendance in court. His behaviour before apprehension is alarming; the offence charged and the potential penalty are grave; the Crown’s case is compelling; the applicant has minimal ties to the community; the plan of release is very weak; and he has a history of non-compliance with court orders.

[39] On that basis alone, I would decline this application. However, for the sake of completeness, I will briefly address the remaining two grounds.

The Secondary Ground

[40] This ground examines whether detention is “necessary” to ensure public safety, and considers, in particular, any “substantial likelihood” that the applicant would, if released, commit a criminal offence.

[41] Mr. Grill submits it is difficult to imagine how the applicant could commit a further crime given the proposed house arrest and ankle monitoring, all under his father’s supervision. As I have already explained, even if the applicant’s father would not actively help his son break the law, he is easily swayed by him and appears deeply conflicted over his role.

[42] Added to that is the compelling evidence that the applicant has already been part of an organized, sophisticated plot to eliminate a member of a notorious criminal organization. These are the very sort of people who pose a substantial likelihood to re-offend. Importantly, their behaviour is not confined to private homes or clubhouses. The victim in this case was shot to death in a public place in the middle of the day. The first volley was delivered in the parking lot outside the gym. When the victim retreated back into the gym, the shooters followed him inside, where staff and other patrons were present. The receptionist dove for cover. The assailants continued firing, delivering the fatal shot into the victim’s back as he was running away.

[43] It is pure luck that no one else was caught up in the ambush. As it happens, only one hour earlier, the victim had walked his young child out of the gym – presumably into the care of another adult – and then returned inside. One shudders to think what might have ensued then.

[44] In short, this was a brazen attack that greatly endangered not just the intended victim but the public at large. And the location was not an accident, nor fortuitous. It was carefully selected by the assailants after months of tracking the victim’s vehicle and learning his movement patterns, which included his regular morning attendance at this gym. They carefully planned to ambush him in this public locale without any regard for the many innocent people who might be affected.

[45] I recognize that the applicant is not alleged to be one of the shooters here. Even so, as in Smith, his participation in a “planned and deliberate daytime execution”, demonstrates his ability to support another such violent crime if not detained: para. 62. Similarly, in R. v. Ibrahim, 2020 ONSC 2000, where the accused was not the shooter but was actively involved in surveillance of the victim, the court concluded that if released, the accused posed a significant danger to the public: paras. 45-47.

The Tertiary Ground

[46] This ground is focused on the public perception of the justice system, and in particular, whether detention is “necessary” in order to “maintain confidence” in the administration of justice.

[47] In answering that question, the Criminal Code requires, at a minimum, that the court consider: the apparent strength of the Crown’s case; the seriousness of the offence; the circumstances surrounding the offence, including whether a firearm was used; and the potential for a lengthy term of imprisonment if convicted. It is undisputed that the latter three factors favour detention here. And I have already explained why, in my view, the Crown has a strong case here.

[48] But that does not end the inquiry. In addressing public expectations, the court must have regard to “all the circumstances”. In this era, that includes the impact of COVID-19, not just on the prison population but its consequent effect on the public at large. Although the applicant does not have any pre-existing medical conditions that increase his vulnerability to the effects of COVID-19, it is undisputed that he is significantly impacted by it. Visits from family have been eliminated. Access to courses and outside exercise have been halted. There are rotating lockdowns. Sanitary conditions are questionable. All in all, the harsh conditions of detention have become even harsher.

[49] That said, the public rightly expects that even in a pandemic, persons who pose a significant danger to the community will remain in custody. I believe a reasonable, well-informed member of the public, cognizant of the relevant legal principles, the specific allegations in this case, and the dangers posed by COVID-19, would expect the ongoing detention of the applicant.

[50] For all of those reasons, the application is dismissed.

Baltman J.

Released: June 3, 2020

Footnote

[1] Following a motion with respect to the Youth Justice Court entries on the applicant’s criminal record, Caponecchia J. ruled that the justice presiding over his bail hearing shall have access to both the CPIC entries dated October 27, 2011, and the corresponding Winnipeg occurrence report, which otherwise remain governed by the Youth Criminal Justice Act.