COURT FILE NO.: 28/22 DATE: 2022-04-01
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – DYLAN SCHAAP Applicant
Counsel: Jennifer Moser and Kristina Mildred, for the Crown Robert D. Farrington and Jennifer Prosser, for the Applicant
HEARD: February 7, 10, 11 and 15, 2022; March 21 and 22, 2022.
THOMAS, RSJ.:
[1] The applicant, Dylan Schaap, (“Schaap”), is charged with second degree murder and a number of firearms offences related to the same investigation. He applies for release pursuant to s. 522 and 515(10) of the Criminal Code. The applicant bears the onus to show his release is justified after consideration of the three grounds delineated in s. 515(10). Schaap is 20 years of age. He has a record of convictions under the Youth Criminal Justice Act, (“YCJA”), which will be discussed later. The Crown contests release on the secondary and tertiary grounds.
Background
[2] On Saturday, July 30, 2021, a “bush party” was organized by teenagers’ intent on celebrating a birthday. It took place in a woodlot at 7220 Pack Road in London. Surveillance footage shows approximately 156 attendees. The party continued into the morning of July 31, 2021 when this incident occurred.
[3] The offence of Schaap’s alleged involvement into the shooting death of Josue Silva comes to me from Detective Constable Blair Gould and from the package of materials presented by the Crown, which includes witness statements from the group and text messages between those intimately involved in the events.
[4] Emily Altmann, (“Altmann”), and Carlos Guerra Guerra, (“Guerra Geurra”), are also charged with murder and other related offences.
[5] At the bush party a large bonfire was started in a clearing down a path from the road. The deceased, 18-year-old Josue Silva, attended this party with his friends. Included in this group of the deceased’s friends were Logan Marshall, Matt Swan, Isabella Restrepo and Rachel Johnson. This group of friends with Josue Silva will be referred to as “the Silva group”.
[6] Other attendees at this bush party included Altmann. Also in the car were Lina Emin, Jamie Falardeau, Jessica Falardeau, Maya Pluchowski and Mackenna Bain. A little later, Lina Emin’s boyfriend, Mackenzie Tulloch arrived. This group of seven will be referred to as “the Altmann group”.
[7] At some point during this gathering a drink was either spilt or thrown by Isabella Restrepo towards the Altmann group. Some of the contents of this drink landed on some members of the Altmann group. These incidents infuriated Altmann and Lina Emin. Both women were heard yelling at Isa Restrepo and at the Silva group in general. It is alleged that Altmann was yelling “you’re gonna get shot”.
[8] Members of the Silva group were telling the Altmann group to go home. At this time, Mackenzie Tulloch picked up Lina Emin (his girlfriend), put her over his shoulder and walked out of the bush party. The rest of the Altmann group followed. Altmann continued yelling as she was leaving the party. Members of the Silva group clapped slowly as the Altmann group exited the party.
[9] Members of the Altmann group heard Altmann say they were “screwed”, “going to regret what they were saying”, and “they are gonna get shot”, as she was leaving. Meanwhile, Altmann called her friend, Guerra Guerra to come and help her. She also messaged Guerra Guerra and asked him to attend. Guerra Guerra responded by text saying he would be there in 15 minutes.
[10] Guerra Guerra was with his friends Schaap, Candace Jamieson (Schaap’s girlfriend) and Kaiah Edmonds. All four attended at 7220 Pack Road in Guerra Guerra’s motor vehicle, a white Dodge Journey. Surveillance video shows the Dodge Journey on Pack Road. He is met by Altmann and Jamie Falardeau who were waiting.
[11] Altmann also texted and called Candace Jameison, Schaap’s girlfriend, while she was waiting for Guerra Guerra to arrive.
[12] This message exchange between the two women starts at 12:25:11 a.m. Candace Jamieson tells Altmann “We’re coming rn”. Altmann writes, “this is fuvked” [sic] and Candace responds, “It’s bout to get worse for den”. Altmann then texts, “I’ve never gotten into a fight” and Candace responds, “Just pull your hair up”. Altmann texts “I wanna fuvk [sic] this bitch up”… “she has so much attitude”. Candace Jamieson responds, “Then let’s do it together”.
[13] Several witnesses saw Guerra Guerra exit the driver’s front door and Schaap exit the passenger front door of the vehicle. There are varying accounts of weapons seen. Schaap was seen with “a large knife”, a “machete” or a “sword”. Guerra Geurra had a fanny pack style bag with a shoulder strap across his body. The bag was seen by witnesses and can be seen in the surveillance video. Gerra Guerra leads the way into the forest and the path that lead to the bush party.
[14] On the pathway into the bush party a witness (Liam Ryan) overhears one of the two males say to the other, “the stick is in the bag”. I have evidence that the slang term “stick” means a gun.
[15] Upon arriving at the fire, the Altmann group were clearly looking for someone. Attendees at the fire messaged members of the Silva group to hide because masked and armed men were coming into the forest. Logan Marshall, Josue Silva, Matt Swan, Rachel Johnson, and Isabella Restrepo listened to this warning and went to hide in the forest, away from the bonfire.
[16] Of note, all four occupants of Guerra Guerra’s car entered the forest. They entered with Altmann, Jamie Falardeau and Jessica Falardeau. A short while later McKenzie Tulloch and Lina Emin entered the forest.
[17] At the bonfire, Altmann was overheard by witnesses specifically asking for Logan Marshall and Isabella Restrepo. She was also overheard saying she had a gun.
[18] Mackenzie Tulloch said he saw a gun at this point in Guerra Guerra’s waistband. Others described a knife in the possession of Schaap.
[19] After being unsuccessful in locating Logan Marshall or Restrepo, the Altmann group and the Guerra/Schaap group decided to leave and went back down the path heading out towards Pack Road. At the same time, the members of the Silva group hiding in the forest decided that the threat was gone, and the young men (Swan, Silva and Marshall) started to walk back. Restrepo and Rachel Johnson remained hidden. When Logan Marshall entered onto the path a female voice said, “that’s him”.
[20] Logan Marshall was hit on the head with a blunt object. Schaap was seen with a machete in his hand. It is the Crown’s theory that Schaap attacked Logan Marshall. Schaap, stated in his police interview, that a male ran at him, possibly trying to run away, and he grabbed him and fell to ground with this male. He does not admit to having a weapon of any sort in his hands, nor does he admit he hit that male in the head with anything. However, he does recall that as soon as he got up, the man he was wrestling with was gone. Logan Marshall confirms he fled immediately after being hit on the head. Logan Marshall was found lying face down on the ground near a roadway. He was later treated at the hospital for a concussion.
[21] Josue Silva had come out of the path just behind Logan Marshall. It was dark and the scene chaotic at this point, but it is alleged Guerra Geurra jumped on Silva. They wrestled on the ground for only a few seconds before a shot was heard. Carlos Guerra Guerra is alleged to have shot Josue Silva, while he was on top of him, in the abdomen. Burn marks could be seen on Josue Silva’s skin indicating very close contact.
[22] As soon as the shot occurred, members of the Altmann group and the Guerra/Schaap group ran back down the path to their respective cars and quickly drove away. The young people present seemed unsure of what had just happened. There was mention of a firework. Friends of Josue tried to help him, but he collapsed after standing with assistance.
[23] Emergency medical service (EMS), police, and fire personnel attended. Eventually, Silva became unresponsive and life saving measures were initiated by emergency responders. Silva was then transported to Victoria Hospital by EMS personnel. At 2:11 a.m. Silva was pronounced deceased.
[24] Through extensive ground searching, police found a 9mm cartridge casing from the scene as well as a machete. Dr. Edward Tweedie (Pathologist) conducted a post-mortem examination on Josue Silva. Dr. Tweedie identified the preliminary cause of death as being “a gunshot wound to the abdomen”.
[25] The machete was sent to CFS for testing. It has three separate DNA samples on it. One of these samples cannot be excluded as coming from Josue Silva. The remaining DNA samples are still a part of the ongoing investigation.
[26] After the shooting Emily Altmann and Guerra Guerra had an exchange of messages. Guerra Guerra told Altmann to make sure everyone kept their mouths shut or they know what will happen to them. He tells her to delete their chats.
[27] In addition to these messages, Guerra Guerra had conversations with Schaap, Kaiah Edmonds, and Candace Jamieson in his car, and in Schaap’s and Candace Jamieson’s apartment on Hamilton Road. The group discussed what they should all say to police if they were questioned. Based on all of their initial interviews, that included: there was a big fight with bottles flying when the shot was heard.
[28] Guerra Guerra later told Kaiah Edmonds that the gun had been left at Schaap’s and it was “gonna be dealt with”.
[29] Guerra Guerra also called Lina Emin and Mackenzie Tulloch via Instagram around 2 a.m. on the morning of the homicide. Both Lina Emin and Mackenzie Tulloch heard Guerra Guerra admit that he was the shooter during this phone call.
[30] Candace Jamieson, Schaap’s girlfriend, also provided a statement to the police. She ultimately acknowledged that Carlos Guerra Guerra was the shooter.
[31] Approximately one week prior to the fatal shooting, Guerra Guerra brought Kaiah Edmonds over to his father, Carlos Guerra Sr.’s apartment on Richmond Street in London, Ontario. In one of the bedrooms, Ms. Edmonds saw 3 - 4 handguns laying out. Guerra Guerra gave one of these guns to Ms. Edmonds to hold. As she held it and moved it about, Guerra Guerra told her not to press the trigger as it was loaded.
[32] By text, Guerra Guerra invited Schaap to go to Toronto with him on July 16th to buy a stick.
[33] Guerra Guerra and Schaap had a text exchange around that same time in which they discussed who would use that gun first.
[34] As part of the investigation, phones were seized, and more evidence became known to the police about what had been discussed between Carlos and Dylan prior to the shooting. This also involved talk of trafficking in cocaine. Further, there were group chats after the shooting where Dylan Schaap and Tyrece Dacres swore their loyalty to Guerra Guerra, should he be arrested for this shooting.
[35] Videos were found on Schaap’s phone, Emily Altmann’s phone, Guerra Guerra’s phone and another phone found several weeks after the arrest of Guerra Guerra and Schaap at a shooting at The Paranyde Bar and Grill on in London, Ontario. All of these phones have videos of the three accused having access to and possession of firearms. Tyrece Dacres, (“Dacres”), is one of the co-accused in this shooting at Club Paranyde. On this phone was a video of Guerra Guerra, Schaap and an unknown person in possession of a total of five handguns in Schaap’s apartment. There is another video of Guerra Guerra and Dacres with three handguns also in Schaap’s apartment.
[36] The videos on Schaap’s phone include one where he is loading a small brown handgun with 9mm ammunition, and also a video of five handguns in what appears to be a pillowcase.
[37] Guerra Guerra has the same video on his phone as on the phone seized at Paranyde, showing him and Dacres dancing around with three handguns.
[38] On August 3, 2021, there is a Snapchat group chat between Guerra Guerra, Schaap and Dacres discussing the murder of Josue Silva. This chat includes voice clips and screen shots of a London Free Press article containing a photo of Josue Silva and conversation between the three parties. Dacres posted the article and Guerra Guerra responded with, “Fireworks Ahlie Mod”. Dacres posts multiple laughing emojis. After they finished discussing the murder, Schaap says in a voice clip, “enough of this hot talk”. These discussions continue and Dacres says he will do anything to support Guerra Guerra especially if things go bad. Guerra Guerra explains that he is organizing his music, implying that he may be arrested. Guerra Guerra also states, “I love ya’ll my brothers” and “I know if shit go left y’all got me”.
[39] The Centre of Forensic Sciences delivered a report on the examination of the handgun seized at the Club Paranyde shooting, along with two other shell casings found at that shooting, and the casing found at the scene of the bush party homicide. The report indicates that the gun is not linked to any of the casings, nor were the casings linked to the same firearm. The conclusion to be drawn is that there are at least four working firearms possessed by this group, and only one has been recovered.
[40] A report was filed by the Crown authored by Detective Constable Nieuwland of the Guns and Gangs Section of the London Police Service. He concludes that while there is no evidence that Schaap was a gang member at the time of this homicide, he was a member of a gang known as the Hot Block Boyz when he acquired his criminal convictions under the YCJA.
[41] In response to evidence in Schaap’s affidavit regarding the difficult conditions at EMDC, the Crown offered the evidence of Joshua Ferguson, (“Ferguson”). Ferguson has been the Operational Manager at the Security Department of EMDC since January 17, 2022.
[42] There is no doubt that EMDC is a difficult place for a prisoner to be housed. Especially as a result of the Covid pandemic. It has one yard closed (a main yard) for construction. It is overcrowded. It is short-staffed for a variety of reasons. Cells originally constructed for one prisoner may now house three or four. For at least short periods of time, Schaap has had to sleep on a mattress on the floor with two other inmates in his cell. I accept that this pre-sentence custody has caused him issues related to his physical and mental health. I accept that in his evidence, Security Sergeant Ferguson was forthright and doing the best he could with his knowledge of the facility and the records he could refer to. Particularly, with regard to the OTIS records for prisoner tracking, I simply cannot rely on its accuracy.
[43] As an example, it became clear that while the facility records did, for a time, show Schaap in a cell alone. In actuality, it meant that he was the only one sleeping on a mattress on the floor with at least two other prisoners being in the cell.
The Release Plan
[44] Counsel for the applicant proposes the following plan for his release:
- The applicant will reside with his parents, Cheryl and Anthony Schaap, in their home at 27 Wenlock Crescent in London.
- His parents, his sister Elissa Schaap, his aunts Stacey Warburton and Rebecca Needham, and his mother’s best friend, Teresa Madore, would act as sureties pledging in excess of $43,000.
- The applicant would remain on the premises of the residence at all times unless with one of his sureties.
- The applicant would abide by the rules of the residence directed by one of his sureties.
- The applicant would be subject to electronic monitoring as provided by SafeTracks GPS Canada. As such, he would wear a GPS tracking ankle bracelet at all times. The sureties would pay for the cost of this service.
[45] All the sureties and the applicant have provided affidavits. They have been examined and cross-examined. It is clear that the defence relies upon a comprehensive supervision plan that utilizes all sureties from time to time to supervise the applicant. I will review each proposed surety individually.
Rebecca Needham
[46] Rebecca Needham is the applicant’s aunt. She feels she is almost like a sibling. She is 11 years older than Schaap. She is a single mother with two children ages 11 and 13, and she cleans homes to support her family.
[47] Ms. Needham lives across the City of London from the Schaap home. She has no car and would rely upon buses or friends to drive her to Schaap’s residence. To her credit, she has been able to save $1,000. and would pledge it.
[48] It is clear though that Ms. Needham has only had very limited contact with the applicant. In the past, she saw him at family events perhaps once a month; has never been to his apartment; has never met his fiancée and did not know he was engaged. She had no idea of the piece of his life portrayed in the videos found on the phones seized in this investigation.
Elissa Schaap
[49] Elissa Schaap is the 18-year-old sister of the applicant. She resides with her parents on Wenlock. She has her bedroom in the basement of the residence and where it is anticipated the applicant would sleep as well. Elissa Schaap has just completed high school and is, at this point, unemployed. Despite that, she is prepared to pledge $500. When her mother and father are not at home, it is suggested that Elissa Schaap would monitor and supervise her brother.
[50] Ms. Schaap is truly well-meaning and obviously cares for her brother. I find, however, that it is naïve to expect that she can control his activities and report back. I do not see her as a suitable surety.
Teresa Madore
[51] Teresa Madore is Cheryl Schaap’s best friend. She told me that she is close to the applicant and believes he is a good kid. This witness was intent on minimizing any concern I might have about Dylan or the Schaap family as a whole. She provided excuses for every negative event brought to her attention. I set out below only a few examples:
(a) The police came often concerned about domestic incidents between the Schaap parents only because they had nosey neighbours. (b) Videos and messages about drugs and guns were “just kid talk”. She suggests these were just toy guns. (c) She does not trust the police officer’s interpretation of the street slang used in conversations by the applicant about drugs. (d) Dylan Schaap wasn’t the one who committed any offence, he was just there for a friend.
[52] I am convinced that Ms. Madore would continue to excuse unacceptable conduct by the applicant. I do not find her to be an appropriate surety.
Stacey Warburton
[53] Stacey Warburton is an aunt of the applicant. She is 36 years of age. She resides only 10 to 15 minutes away from the Schaap home. Ms. Warburton has a full-time job and three children to care for. She is well-meaning but concedes she only has so much available time to give to supervise the applicant. In addition, it is clear she has very little knowledge of the applicant’s lifestyle, friends, criminal record or concerns of conflict in the Schaap home between the applicant’s parents. She offers that since Dylan has been incarcerated, he has “grown up” and recognizes this is not the life he wanted.
Cheryl Schaap
[54] Cheryl Schaap is the applicant’s mother and really the lynchpin of the release plan. Her commitment to her son is clear. She wants him home. Her evidence was emotionally delivered from start to finish. She was often crying.
[55] Cheryl Schaap is off work now to be available to assist the applicant on release, but understandably, money is tight and at some point she will need to return to work. She is prepared to pledge $20,000.
[56] Cheryl Schaap has acted as a surety for her son in the past for his earlier offences. Her record in that regard is not promising. While on a curfew to remain in the home, Dylan took the family car in the middle of the night and returned home the next morning. Ms. Schaap did not call police.
[57] On another occasion, she gave him permission to stay overnight at a friends despite the requirement that he be in his own home. When the police came during a routine check on his location, she lied to police and then refused to give them the address where he was actually located. Her evidence at this hearing was in conflict with what I find she told police on that occasion.
[58] Because of her desperate need to have her son released pending trial, she was careless with the truth throughout her evidence. In addition, it is clear that she and Anthony have had numerous domestic arguments that have caused police to respond. Those have continued at least up to October 2020. Ms. Schaap did her best to minimize those concerns and now believes they have “straightened things out”.
[59] In the applicant’s previous trial for robbery offences, Cheryl Schaap provided alibi evidence that her son was home all night. It is clear that the trial judge did not find her evidence credible as Dylan was convicted of two counts of robbery. At this hearing she attempted to explain away her untruthful evidence at the robbery trial. Ms. Schaap believes that the present charges are so serious that her son will now comply with all conditions.
[60] Cheryl Schaap would be the person most in charge of the applicant if he were to be released. As I will set out below, her husband is often away working long hours. Her ability to properly monitor and supervise her son is the key to his release.
Anthony Schaap
[61] Anthony Schaap is the applicant’s father. He was clearly and perhaps understandably “on edge” during his testimony. He is a hard-working truck driver and is out of the home for work from 5:00 a.m. to 7:00 p.m., five days per week. As such, he must rely upon his wife to carry much of the day-to-day supervision.
[62] Anthony Schaap has dated convictions for production of cannabis and possession of a firearm. In addition, he was convicted of assaulting the applicant when Dylan was 14. He struck him in the face leaving a welt and a bruise. Anthony Schaap maintains it was an accident and that he only entered a guilty plea because the police had threatened him. It is conceded that he was never threatened by police.
[63] He believes the police have not supported him enough in the concerns he has had about his son and the domestic strife in the home, but it is unclear what he believes they should have done.
[64] It is clear that, at least in the past, there has been conflict between himself and his wife over Dylan. He believes if Cheryl Schaap had listened to him then all of them would not be going through this situation now.
[65] Evidence reveals that one of the calls from Cheryl Schaap to police reported what she believed was her husband’s stated intention to commit suicide. Anthony Schaap says she misinterpreted what he said. Another call was occasioned when Cheryl believed he had stolen some of her personal property. Another police attendance was a result of a female in the home shouting “call 911”.
[66] While Anthony Schaap admits to these numerous incidents in the home and the regular police responses, he confirmed that both he and his wife are taking medication for anxiety and depression and that the are both doing much better. I accept that to be true and I accept his evidence that there will be zero tolerance should the applicant break any of his conditions, but I question what effect returning of Dylan to this home, under strict conditions, would have on the continued stability of this environment.
Dylan Schaap
[67] Dylan Schaap conceded his previous criminal conduct as a youth and his conflict at home with his father. He believes he has matured. He stated that his relationship with his father is much better. He recognizes that his recent associates are bad for him and testified that all he wants to do is be with his family, his girlfriend and his dog. It is abundantly clear that he desperately wants to be released on bail and get out of EMDC. He maintains he will follow whatever conditions are imposed upon him. He was grateful for the sacrifices offered by his family. He understands if he breaks bail conditions, everyone has a lot to lose.
[68] Dylan Schaap was cross-examined on the contents of his affidavit and his evidence about his time at EMDC. While there can be no doubt that his life in this facility is difficult, he provided sworn details about his difficulties that were exposed as, at best, significant exaggerations, no doubt provided to make his situation as sympathetic as possible.
[69] The production of his phone records from the facility showed that he could not have been locked in his cell all day on many of the dates he indicated. He said he had difficulty getting access to the phone and his lack of contact with his family affected him greatly. Despite that claim, the records indicate 75 calls to his mother in the period August 9 to September 7, 2021. As an example, in his affidavit he swore that on August 19, 2021, he was in his cell all day, and yet the records reveal he made six consecutive twenty-minute calls to his mother.
[70] He maintained that he was unable to acquire pain medication for his back, but then conceded he asked for Tylenol, received it promptly, and this satisfied his concern. His affidavit describes having pain in his ear and a loss of hearing until he could have it treated. He stated he could not hear during his court appearances. He then conceded he did not have court appearances in the time period he described experiencing these symptoms, but then suggested it had been troubling him for longer than he had previously stated.
[71] When questioned about his last robbery conviction which came after a trial, he agreed that despite his trial testimony to the contrary, he later disclosed to the author of the pre-sentence report, that he in fact had committed the offence alleged.
[72] Schaap has accumulated the following youth record pursuant to the YCJA:
2018-03-12 1 x ASSAULT SEC 266 CC (2) PROBATION 12 MO(S) CONC. (*S) 2018-08-13 1 x ASSAULT SEC 266 CC (1) PROBATION 12 MO(S) CONC. (*S) 2019-04-01 1 x FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC (1) COMMUNITY SERVICE WORK 20 HR(S) (*S) 2020-01-24 1 x ROBBERY/THEFT FROM PERSON WITH VIOLENCE SEC 343 (B) CC (1) PROBATION 9 MO(S) & MANDATORY PROHIBITION ORDER SEC 51 (1) YCJ ACT 2 YR(S) (*1) 2020-01-24 1 x ROBBERY WITH VIOLENCE OR THREATS SEC 343 (A) CC (2) PROBATION 9 MO(S) CONC. WITH SENTENCE SERVING & MANDATORY PROHIBITION ORDER SEC 51 (1) YCJ ACT 2 YR(S) (*I) 2020-01-24 1 x FAIL TO COMPLY WITH RECOGNIZANCE SEC 145 (3) CC (3) PROBATION 9 MO(S) CONC. WITH SENTENCE SERVING (*I)
[73] The assault and robbery convictions emanate from the period of time when the applicant was a member of the Hot Block Boyz. Counsel for the applicant advises despite the dates of conviction, the last of these charged occurrences took place in 2018, and he has been on probation since without incident. Of course, that is but for the videos we see of the applicant possessing firearms and the allegations here.
Analysis
[74] Dylan Schaap is presumed innocent. It is important to remember at the outset that even for s. 469 offences, the accused has a right to reasonable bail, (s. 11(e) of the Charter of Rights and Freedoms), and that in Canada, pre-trial release is the cardinal rule and detention, the exception. (R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 at para. 70; R. v. Morales, [1992] 3 S.C.R. 711 at p. 728). That being said, sometimes, as here, the onus of demonstrating release is shifted to an accused who is required to demonstrate that detention is not necessary on the primary, secondary, or tertiary ground. (R. v. Manasseri, 2017 ONCA 226, [2017] O.J. No. 1460, para. 96).
The Secondary Ground
[75] In considering the secondary ground, the direction of Justice Watt in Manasseri at paras. 84-88 is instructive:
[84] The secondary ground in s. 515(10)(b) focuses on and seeks to ensure against recidivistic conduct on release. The statutory reversal of onus for persons charged with second degree murder means that an accused must show that his or her detention is not necessary:
- for the protection of the public; or
- for the safety of the public
including victims, witnesses and persons under 18. This determination is to be made on the basis of all the circumstances, including any substantial likelihood that the accused will, if released,
- commit a criminal offence; or
- interfere with the administration of justice.
[85] Three brief points should be made about the secondary ground.
[86] First, to determine whether the secondary ground controls the release/detention decision, requires a consideration of all the circumstances. A relevant circumstance, neither exclusive, nor dispositive, is the substantial likelihood of recidivistic conduct (“commit a criminal offence”) or an interference with the administration of justice.
[87] Second, in connection with the specified circumstances encompassed by the clause “including any substantial likelihood that the accused will, if released from custody, commit…”, the italicized words refer to a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely.
[88] Third, where, as here, the onus of showing cause for release falls on an accused, that accused must demonstrate not only that his or her detention is not necessary for the protection of the public, but also that it is not necessary for the safety of the public.
[76] The Quebec Court of Appeal in R. v. Rondeau (1996), 108 C.C.C. (3d) 474 at p. 478, offered several factors to be taken into account in assessing he likelihood of future dangerousness in the context of the secondary ground:
In the case at bar, the issue concerns the assessment of the likelihood of dangerousness. In my view, several factors must be taken into account in deciding this question, including (1) the nature of the offence, (2) the relevant circumstances of the offence, which may put in issue events prior to and subsequent to the offence, (3) the likelihood of a conviction, (4) the degree of participation of the accused, (5) the relationship between the accused and the victim, (6) the profile of the accused, i.e., his occupation, his lifestyle, his criminal record, his family situation, his mental state, (7) his conduct prior to the commission of the alleged offence, (8) the danger which the interim release of the accused represents for the community specifically affected by the matter.
[77] I would suggest that once the level of dangerousness has been assessed, part of the concerns the Court must consider on the secondary ground is the effectiveness of the proposed plan of release.
[78] Let me consider some of the factors as applied to the matter of Dylan Schaap. Schaap is charged with the serious offence of second degree murder and firearms offences. The investigation has revealed videos prior to the charged event depicting Schaap in possession of as many as five handguns. The video and messaging place him in a tight group of associates with Carlos Guerra Guerra and Tyrece Dacres. Guerra Guerra, in the Crown’s theory, is the shooter in the murder before this Court. Dacres is charged in another shooting incident in London at Club Paranyde. Retrieved messages show discussions of Guerra Guerra and Schaap travelling to Toronto to purchase a gun, as well as a discussion on who might use it first. They, as well, reveal participation in the trafficking of cocaine.
[79] Schaap has a youth record for violent offences, including robberies, while a member of a recognized gang.
[80] On the evidence before me, it is clear that Guerra Guerra and Schaap knew that they were going to the bush party to seek retribution for the perceived slight to Altmann. There is ample evidence that Schaap left the vehicle with a bladed weapon, and it is a reasonable inference on the evidence here that he knew Guerra Guerra had a handgun in the bag or satchel he carried. It is a reasonable inference that everyone in this group, male and female alike, were spoiling for a fight.
[81] It would be unfair to suggest that with teenage witnesses consuming alcohol, the witness statements were consistent as to details. The forest was dark. There was much confusion. There is, however, good evidence that Guerra Guerra ended up on top of Josue Silva, firing one round into his abdomen with a 9mm handgun, and that Schaap struck Logan Marshall in the head with an object.
[82] Guerra Guerra later confirms to witnesses that he was the shooter. Messages between Guerra Guerra and Altmann contain threats to those who might cooperate with police. Schaap and Dacres pledge their loyalty to Guerra Guerra if things go badly.
[83] There are firearms still in the community. There is no reason to believe they are not accessible to Dylan Schaap. There are teenage witnesses in the community important to the prosecution, important to the proper administration of justice, and who are vulnerable to intimidation. That threat has been made by Guerra Guerra. The applicant has pledged his allegiance to Guerra Guerra.
[84] There is, in the words of Justice Watt in Manasseri, a need to detain Dylan Schaap for the protection or safety of the public. I find there is a substantial likelihood that he will, if released, commit a criminal offence or interfere with the administration of justice.
[85] As part of my determination on the secondary ground, I must consider the proposed plan of release. The position of the defence can be captured by the phrase “there is safety in numbers”. In other words, the six proposed sureties will work as a supervising team to ensure Dylan Schaap does not breach his conditions. As mentioned previously, the strength of Cheryl Schaap as a surety is the key. All others, while helpful, do not individually or collectively, make up for her frailties.
[86] I draw upon the words of Justice Harris in R. v. Syed, 2000 ONSC 2195 at paras. 43-47:
43 In light of my assessment of the risk in releasing the applicant, even an exemplary plan and exemplary surety would probably not be enough. But in this case, we have neither. Mrs. Syed loves her son and is, I am sure, heartbroken with what has happened. Any mother would be. It is tragic. But that is not enough to make her a dependable surety.
44 There is a paradox in the theory of surety supervision. There must be the “pull” of bail upon the accused for a surety to be an effective deterrent on the accused. The accused does not want to cost their surety the consideration that has been pledged: Canada (Attorney General) v. Horvath and Mirza, 2009 ONCA 732, [2009] O.J. No. 4308, at paras. 40-54.
45 But this very closeness between surety and accused can pose a conundrum. It may lead the surety to be reluctant to perform their responsibility and notify the authorities if the accused is not complying with the bail. A surety may not want their family member to go back to jail and get charged with failure to comply with their bail. In short, the surety may suffer from divided loyalty between the accused and the justice system. So while closeness between the surety and the accused is necessary and important, at the same time, it can lead to flawed and inadequate supervision.
46 That is precisely the issue in this case. Mrs. Syed’s denial that the applicant threatened her, when he admitted that he did and she made a previous statement that he did, all but disqualifies her for the surety role. She is likely to be co-opted by the love of her son in the same way she was when she testified that he did not threaten her. For this reason, although she has pledged much of the equity in her house, I do not believe that Mrs. Syed would be an appropriate surety for her son.
47 Furthermore, the applicant has twice been found guilty of fail to comply with bail and is in breach of court orders not to be in possession of weapons. There is real doubt whether he would abide by a strict house arrest bail order.
[87] Just as in Syed, the past is often the best predictor of the future. Cheryl Schaap has, in the past, lied and obstructed police as a surety. She continued to do so at her son’s trial, and she was untruthful here when confronted with her previous conduct. She will do anything to get her son home. I accept that to be true. For that reason, she cannot be trusted to enforce full house arrest, including no access to the internet, which could provide an effective vehicle for the applicant’s continued impugned conduct.
[88] I recognize that GPS electronic monitoring is part of the proposed plan. In R. v. Hassan, 2021 ONSC 1385, paras. 35 and 36, the Court said the following:
35 These concerns are not allayed by the fact that Mr. Hassan will wear an electronic monitoring bracelet. As noted by Trotter J. in United States v. Khadr (2008), 234 CCC (3d) 129, a monitoring device does not prevent an accused from abscondence. It merely alerts the authorities if the accused flees. Similarly, a monitoring device does not prevent criminal activity by the accused, it simply alerts the authorities as to the whereabouts of the accused.
36 As noted by Trotter J. in The Law of Bail in Canada, 3rd ed. (Toronto: Thomson Reuters 2017) at page 6-37: When electronic monitoring is requested or ordered, it is important to remember its proper function. The responsibility for enforcement of the conditions of release, including house arrest, still resides with the sureties. Electronic monitoring is merely a form of technology that may augment the powers of human supervision.
[89] I have already expressed my concerns about the sureties.
The Tertiary Ground
[90] Section 515(10)(c) of the Criminal Code states the following:
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
(i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
[91] In R. v. St-Cloud, 2015 SCC 27, the Supreme Court of Canada made it clear that the tertiary ground was a distinct ground that itself provides a basis for the detention of an accused.
[92] Moldaver J., in R. v. Oland, 2017 SCC 17, [2017] 1 SCR 250 at para. 37, reflected on the tertiary ground as it relates to the nature of the offence:
[37] In assessing whether public confidence concerns support a pre-trial detention order under s. 515(10)(c), the seriousness of the crime plays an important role. The more serious the crime, the greater the risk that public confidence in the administration of justice will be undermined if the accused is released on bail pending trial. ...
[93] In the case of first or second degree murder, the second and fourth factors impacting the tertiary ground are always met. (Hassan, para. 24).
[94] Justice Wagner, in St-Cloud at paras. 55, 56 and 68, set out below, cautions against losing sight of the broader thrust of the bail provisions by focussing only on the four factors in s. 515(10)(c):
[55] Section 515(10)(c) expressly refers to four circumstances that must be considered by a justice in determining whether the detention of an accused is necessary to maintain confidence in the administration of justice. The justice must assess each of these circumstances — or factors — and consider their combined effect. This is a balancing exercise that will enable the justice to decide whether detention is justified.
[56] It must be kept in mind that, at this stage of criminal proceedings, the accused is still presumed innocent regardless of the gravity of the offence, the strength of the prosecution’s case or the possibility of a lengthy term of imprisonment.
[68] Section 515(10)(c) could not be worded more clearly: it refers to “all the circumstances, including . . .”. In my opinion, Parliament would have worded this provision differently (although I will not comment on the validity of such a wording) if it had intended a detention order to be automatic where the four listed circumstances weigh in favour of such an order. In fact, Parliament intended the opposite. As the Chief Justice stated in Hall, a justice dealing with an application for detention based on s. 515(10)(c) must consider all the relevant circumstances, but must focus particularly on the factors Parliament has specified: para. 41. The automatic detention argument also seems to be inconsistent with the following statement by the Chief Justice, at para. 41: At the end of the day, the judge can only deny bail if satisfied that in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice. [Emphasis added.]
[95] When considering the strength of the Crown’s case against Dylan Schaap as a party to the offence of second degree murder, and as a principal in the charge of assault with a weapon, there are admitted frailties simply based on the circumstances confronted by young witnesses. However, the electronic evidence both before and after the murder assist the Crown’s case. The Crown does not have a weak case and I must consider as well the seriousness, strength and potential sentence for lesser and lesser included offences.
[96] The circumstances surrounding the commission of the alleged offence have been detailed by me in my earlier comments. The death was occasioned by the use of a firearm. The public would be deeply concerned about the shooting death of a young university student in these circumstances.
[97] Consistent with the position of the Supreme Court of Canada, I must consider “all the circumstances” as part of my weighing analysis on the tertiary ground. I believe the strength of the plan of release would, as well, be important to a reasonable member of the public.
[98] As Justice Trotter pointed out in R. v. Dang, 2015 ONSC 4254 at para. 58, the release plan must also be considered:
[58] An accused person’s plan of release may be relevant to whether public confidence in the administration of justice can be maintained when an accused person is released: see R v. B.(A.) (2006), 204 C.C.C. (3d) 490 (Ont. S.C.J.), at p. 501. ... A reasonable and knowledgeable member of the community may take a different view of a case in which an accused person charged with a violent offence is released into the community with virtually no supervision, compared to a situation where a strict plan has been put in place to monitor the accused. The plan goes to the core of s. 515(10)(b), but it may also impact on the application of s. 515(10)(c). The bail decision does not involve a stark choice between absolute freedom on one hand, and detention on the other. Realistically, it is a choice between release on conditions and detention. I see nothing wrong with this reality being reflected in s. 515(10)(c).
[99] I have already expressed my concerns about the plan of release.
[100] As well, I must consider the conditions of detention of the applicant, including the ongoing threat of the Covid-19 pandemic. Public confidence in the administration of justice is enhanced when the Courts take into account public health measures designed to protect everyone in the community. Covid-19 protocols have, even now, made conditions in which inmates live more difficult. The pandemic has backlogged cases, which means it will likely take the applicant’s case longer to get to trial. (R. v. N.Y., 2021 ONSC 917, paras. 52-54). In addition, there are the difficulties for inmates at EMDC that I have mentioned previously.
[101] The evidence does not disclose that the applicant possesses any underlying conditions or other vulnerabilities that place him at greater risk from the pandemic. I accept that the cell occupancy and repeated lockdowns, even if time-limited, should be considered by me as part of this ground.
[102] Finally, in para. 21 of Hassan, the Court pulled together the considerations of the tertiary ground:
Although the case of R. v. E.W.M., [2006] O.J. No. 3654 pre-dates the St-Cloud decision, the comments of the Ontario Court of Appeal are helpful in considering the tertiary ground in section 515(c). at paragraph 25 of that decision the court stated that it must consider the effect the release of the respondent would have more broadly on public confidence in the administration of justice. At paragraph 31 of that decision, the Ontario Court of Appeal indicated that “No one factor is determinative. The four factors should be analysed together, not separately. Consideration of their combined effect in the context of all the circumstances enables the court to determine whether it is necessary to deny bail in order to maintain public confidence in the administration of Justice.”
[103] Considering all of the above and drawing upon the language of Justice Wagner in St-Cloud, a reasonable person’s confidence in the administration of justice would be undermined should I release Dylan Schaap in those circumstances. That reasonable person being properly informed about the philosophy of the legislative provisions, Charter values, and the actual circumstances of the case. (St-Cloud, para. 87)
Conclusion
[104] For the above reasons, the applicant has not met his onus on the secondary or tertiary grounds and his application for release will be dismissed.
Regional Senior Justice B. G. Thomas Released: April 1, 2022.