ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 22-393

DATE: 20241217

BETWEEN:

HIS MAJESTY THE KING

– and –

DYLAN SCHAAP

Defendant

J. Moser, K. Mildred, for the Crown

A. Prevost, for the Defendant

HEARD: May 31, September 18, 2024

Judgment on sentence

Carnegie J. (orally)

[1] Josue Silva was 18 years old when he attended a “bush bash” party with his friend, Logan Marshall, to celebrate a friend’s birthday. The event was primarily organized by high school students with a large bonfire burning in a forested area most of the night. Over 150 people had attended this gathering. Mr. Schaap was eventually one of them. He later attended with his friends to redress a perceived slight. He knew none of the party goers, he had no direct interest in the reported conflict. While there, he attacked Logan Marshall with a machete and aided a friend in finding and attacking Josue Silva, who was ultimately shot when confronted in the bush.

[2] Mr. Schaap was 19 years of age when this attack took place. He and his friend came armed bent upon intimidation and confrontation because one in their group suffered a bruised ego. They got what they came for leaving Josue Silva to die and Logan Marshall concussed but having escaped with his life. He has pled guilty to being a party to manslaughter and assault with a weapon.

[3] I must now impose a just sanction upon Mr. Schaap that will contribute to respect for the law and the maintenance of community safety. This sentencing must express our community’s revulsion for such senseless violence while tempering societal retribution to a disposition that is no more than is necessary to deter Mr. Schaap and others of a like mind. The death of Josue Silva and related attack upon Logan Marshall were meaningless acts of violence upon strangers with tragic results. Their families are now forever changed because of the decisions made by Mr. Schaap and his colleagues.

[4] Of course, no sentence I can impose will bring back Josue Silva, or assuage the loss and distressing guilt felt by Logan Marshall. That is not the purpose of sentencing. Instead, I balance the need to deter and denounce this and like behaviour with appropriate restraint that is grounded in Mr. Schaap’s prospects for eventual rehabilitation.

Circumstances of the Offence

[5] Josue Silva had just completed his first year at Western University in London, Ontario. Logan Marshall was his close friend. They attended the “bush bash” party with a group of friends and ultimately were attacked in the early morning hours of July 31, 2021.

[6] Emily Altmann also attended this party. She attended with a group of friends.

[7] At some point in the evening, a drink was spilled or thrown by a member of the Silva group towards members of the Altmann group. Ms. Altmann took offence which was highlighted by the perception that she was being photographed by a member(s) of the Silva group. A verbal argument ensued, and threats were exchanged. Ms. Altmann and her group were told to leave the party and they eventually complied. Ms. Altmann then called and texted a friend, asking him to attend and assist her. She told her friend that she was being attacked by a group of males and needed his help. This friend left a separate party to attend the bush bash location. He brought his friend, Mr. Schaap, and several others.

[8] Upon arrival at the bush bash, Mr. Schaap, then almost 20 years of age, was armed with a machete, his friend was armed with a handgun inside his over the shoulder bag. As they arrived, several departing partygoers became concerned and called the Silva group to warn them that Ms. Altmann had returned with males who had weapons. Fearing confrontation, these warnings led Josue Silva, Logan Marshall and others to hide in the forest away from the bonfire location.

[9] While they were walking towards the bonfire area, Ms. Schaap was told by his friend “the stick is in the bag”. In this context, “stick” was known by Mr. Schaap to mean a handgun. Ms. Altmann began asking for Logan Marshall and announcing that “I have a gun”. She then began calling Logan Marshall and another member of his group on Instagram at approximately 1:00 a.m. The Altmann group continued searching the forest area and Ms. Altmann’s friend was seen with a gun in his waistband. Despite their efforts, they were unable to locate the Silva group.

[10] The Altmann group then decided to leave the bush walking down the path back to the roadway. At this point, Silva group members had received premature information that their pursuers had already left and that it was safe to come out. Josue Silva, Logan Marshall and others came out of the bushes and were then spotted by the Altmann group. Logan Marshall was identified as the target. Mr. Schaap then attacked Logan Marshall, striking him on the head with the blunt end of the machete. They both fell onto the ground. Logan Marshall was able to free himself and run away, deep into the bushes. He was located some time later and transported to hospital to treat his resulting concussion.

[11] Just as Logan Marshall was being assaulted by Mr. Schaap, Josue Silva also emerged from hiding. He was then attacked by Ms. Altmann’s male friend. They wrestled on the ground and the friend managed to get on top of Josue Silva. He then retrieved his handgun and shot Josue Silva in the stomach.

[12] Once the shot was fired, members of the Altmann group immediately retreated, fleeing down the pathway. They returned to their vehicles and fled the scene. In the vehicle, in response to questions, Mr. Schaap commented that his friend, the shooter, had done what he said he would do. They retreated back to Mr. Schaap’s apartment and discussed what they should tell the police if they were spoken to. Mr. Schaap was to “take care” of the gun. The handgun has not been recovered.

[13] Friends of Josue Silva tried to assist him. Uncertain about what happened, some believing he was hit by some firework, they tried to move him but he collapsed. 911 was called and Emergency Medical Services attended the scene. Josue Silva was transported from the scene but became unresponsive on the way to the hospital. At 2:11 a.m., Josue Silva died as a result of a “gunshot wound to the abdomen”.

[14] Police secured and searched the scene. They located a 9mm casing and the machete that had been carried by Mr. Schaap in the area where the shooting was believed to have occurred.

[15] Once police identified Mr. Schaap and members of the Altmann group, they secured Mr. Schaap’s cellphone as well as the phone believed to belong to the shooter, and searched it pursuant to warrants. On these devices, police made several relevant findings, including:

1. that two weeks prior, text messages between Mr. Schaap and the shooter included an invitation for Mr. Schaap to join the shooter in Toronto so that he could buy a “stick”, or handgun;

2. two videos were located on Mr. Schaap’s phone depicting handguns, including:

a) Mr. Schaap holding and unloading a small brown handgun on July 25, 2021;

b) five handguns were visible in what appears to be a pillowcase;

3. three videos were located on what was believed to be the shooter’s phone depicting handguns, and Mr. Schaap, the shooter and others interacting with the handguns, including:

a) the shooter and a third party dancing and singing in Mr. Schaap’s residence while holding and brandishing three handguns;

b) Mr. Schaap, the shooter and a third party each holding black handguns while a brown handgun in observable on a table, taken from within Mr. Schaap’s residence; and

c) five handguns laid out on a table in Mr. Schaap’s residence.

[16] Police also recovered self congratulatory social media communications between Mr. Schaap, the shooter and a third party from August 3, 2021. A London Free Press article containing a photo of Josue Silva was exchanged and prompted messages and voice clips. Mr. Schaap noted how much media attention the Josue Silva homicide was receiving. The shooter responded: “Fireworks Ahlie Mod”. Laughing emojis ensued. The third party then commented, “LO’s on the map”. The shooter responded, “LO Block”. Mr. Schaap responded, “LO is hot, dog – LO is out here…”. Eventually, Mr. Schaap commented in a voice clip “enough of this hot talk”. The third party then expressed support for the shooter identifying themselves as “brothers”. Mr. Schaap responded with the word “Family” and supportive emojis. He then commented: “…you don’t gotta tell any of us dawg we making it to the top no matter what.”

[17] “LO” is a reference to a street gang.

[18] Upon arrest, Mr. Schaap provided two lengthy incriminating statements to police. Therein, though guarded throughout the interview, he acknowledged being present at the time of the shooting, admitted being in a physical altercation with Logan Marshall, and he identified who the shooter was.

Victim Impact

[19] The loss experienced and expressed by members of Josue Silva’s family is understandably devastating and overwhelming. A young man with a world of opportunity before him was taken from them. His dreams of working in the finance world, at the stock exchange on Wall Street, and traveling the world have been inexplicably lost.

[20] His mother continues to struggle with acceptance. Years later, the family’s day-to-day remains a shell of what it once was. Sadly, she continues to blame herself for allowing him to attend this youthful gathering with his peers. She was entitled to feelings of security within this community but those have also now been taken.

[21] His uncle, who relishes in the strength of his extended family, obviously had a soft spot for his namesake nephew. He described a loving, hard working and talented young man who’s loss has left a familial void. In particular, he fears that Josue’s parents will never fully recover.

[22] Josue’s youngest brother lost his best friend and role model when he was 17 years old. Remarkably articulate, he expressed deep shame about his emotional and behavioural reactions to this loss. He fears the lasting impact of his family’s ongoing trauma as he struggles with resiliency.

[23] Logan Marshall’s mother expressed her family’s grief over the loss of Josue. Putting their own victimization aside, Logan’s loss of his close friend has left deep emotional scars. As a family their sense of security and normalcy has not yet returned. Their community of friends has been rocked by this tragedy.

[24] Suffice it to say, the overall impact to the Silva and Marshall families, and the community at large, has been profound. Understanding this senseless tragedy rightly eludes them, and frankly this court.

Circumstances of the Offender

[25] Mr. Schaap, now 23 years of age, was born in London, Ontario. His upbringing was unstable and characterized by familial domestic abuse at the hands of his father. He has maintained a positive relationship with his mother, who continues to support and communicate with him regularly. He relies upon this support. He is also close to his eldest sister. He does not, however, maintain a meaningful relationship with his father.

[26] Both his mother and his grandmother were the strongest influences in his life. Unfortunately, both struggled with health conditions and his grandmother passed away in 2021 which was difficult for him to accept. Mr. Schaap’s mother fears that she “babied” her eldest child and enabled his behaviours too much. His incarceration has negatively impacted his younger siblings who looked up to him and have lost an influence and connection in their lives.

[27] Mr. Schaap’s education was sporadic. He attended several elementary schools due to several relocations and complains of a history of bullying. He characterized his attendance at school as poor, restricting himself to hanging out in the “smoking pit” whenever possible. He received suspensions due to violent confrontations with his peers. While he was in the 11th grade, Mr. Schaap was charged with several criminal offences leading to a brief placement within a youth custodial facility. He dropped out of school shortly thereafter.

[28] Mr. Schaap’s employment history was equally spotty. It included building roof trusses for a brief period. Prior, he had worked “cash jobs” as a labourer. Once the Covid-19 pandemic began, he stayed home and received government assistance until his arrest.

[29] Mr. Schaap describes himself as having an addictive personality which impacted his regular use of marijuana and other prescription medications. However, he does not identify drugs or alcohol as a concern.

[30] Curiously, Mr. Schaap describes himself as “mature”, calm and humble. This evidentiary record conflicts substantially with that assessment, which is explained by distinction between his personal presentation and that when he is with his admittedly negative peer group. He characterizes himself as a follower, looking for acceptance. His mother describes him as a “sincere, loving man” whose behaviours around his peers are “a show”. Since his incarceration, she reports seeing positive change and that he is a “completely different person”.

[31] When the pre-sentence report author raised the offence, his response was described as “empathetic and remorseful”. He expressed regret about his actions which produced results that were “not my intentions”. It is difficult, on this evidentiary record, to credit him with candor for this assessment. This event was fueled by a joint intention with a foreseeable violent result.

[32] Mr. Schaap’s future goals include completing his high school education, gaining employment and changing his peer group.

Positions of the Parties

[33] Counsel for Mr. Schaap submits that he has now served sufficient time to satisfy the principles of sentencing. A totality sentence of 5 years would achieve this targeted result. He has over 3 years in custody which have been difficult and an “eye-opener”. The custodial conditions he has experienced have been particularly harsh and punitive. As a youthful first-time adult offender, he believes that he presents as a suitable subject for rehabilitation.

[34] To meet the predominant sentencing objectives, the Crown suggests a range of between 8 to 13 years incarceration. Here, the gravity of the offence is extreme and Mr. Schaap’s moral blameworthiness is considered high. That Mr. Schaap and the shooter attended this party uninvited, for the purpose of redressing a complainant that was not their own, having armed themselves with a firearm and machete, leading to foreseeable risk of bodily harm or worse, a significant custodial sentence should follow. Balancing all the available factors, the Crown recommends a totality of 12 years incarceration, minus credit for pre-sentence custody.

Legal Framework

[35] Section 718 of the Criminal Code defines the fundamental purpose of sentencing: “to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

1. to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

2. to deter the offender and other persons from committing offences;

3. to separate offenders from society, where necessary;

4. to assist in rehabilitating offenders;

5. to provide reparations for harm done to victims or to the community; and

6. to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.”

[36] Section 718.1 of the Code identifies the fundamental principle of sentencing as proportionality. It is commonly referred to as the cardinal principal of sentencing and requires that the court consider the gravity of the offence and the moral blameworthiness of the offender. It is determined both on an individual basis, that is in relation to the accused and the offence they committed, and by comparison to sentences imposed on other offenders for offences committed in similar circumstances, also known as parity. The Supreme Court in R v Lacasse,[^1] emphasized that a proportionate sentence is one that is individualized. In other words, it is one that is deserved by the offender. Simply put, the Lacasse court noted that “the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be.”[^2]

[37] The proportionality principle is central to the maintenance of public confidence in the criminal justice system. It demands that the punishment speak out against the offence and punish the offender, but no more than is necessary. In so doing, it seeks to balance the principle of restraint with the importance of holding offenders accountable for their actions. A helpful tool in this analysis is the consideration of a particular case’s aggravating and mitigating factors.

[38] Of course, the moral blameworthiness of the offender is important. Offenders who intentionally cause harm should be subjected to a greater punishment than those who did not intend the harm that flowed from their conduct. But, as our common law has made clear, when one elects to use violence to resolve conflict the consequences of that choice can be extreme whether intended or not. And the consequence of that violent conduct and an offender’s indifference towards it often plays a significant role when determining the gravity of the offence and, therefore, impacts upon the balance that proportionality envisions.

[39] Section 718.2(b) of the Code highlights the importance of “parity”. Subject to the particular circumstances of the offence and offender, similar offenders for similar offences in similar circumstances should receive similar sentences. Sentencing judges must seriously consider the importance of parity because, otherwise, simple reliance upon the particular will or idiosyncrasies of whichever sentencing judge walks into the courtroom would diminish the public’s confidence in the administration of justice.

[40] In manslaughter cases, the statutory range of sentence is necessarily broad. For manslaughter offences involving the use of a firearm, the statutory range extends from a mandatory minimum sentence of four years incarceration to a maximum sentence of life imprisonment. This speaks to the wide range of possible unlawful conduct which may cause death, and the lack of intent to cause that outcome. However, a common feature of manslaughter sentencing is the prioritization of the sentencing principles of denunciation and deterrence (both general and specific). Denunciation refers to the communication, through the imposition of a sentence, of society’s condemnation of the offending conduct. General deterrence contemplates sending a message to the community at large, and, in particular, to those of like mind, to discourage similar conduct in the future. Specific deterrence involves sending a message to the offender before the court, to dissuade him from committing similar acts in the future.

[41] Finally, section 718(d) of the Criminal Code compels me to be mindful of the importance of rehabilitation, particularly when dealing, as here, with a youthful adult offender. Restraint is required, as noted in section 718.2(d) and (e), to ensure that an offender is not deprived of liberty if less restrictive sanctions may be reasonable and appropriate and, if custody is required, the least amount of custody necessary to satisfy other principles of sentencing should be imposed.

Range of sentence

[42] Manslaughter attracts a broad range for sentencing purposes dependant upon the circumstances of the offence and offender and the moral blameworthiness of the offender. As noted by the British Columba Court of Appeal in R v E.H., this offence captures “the well-established spectrum of culpability in manslaughter cases ranging from ‘near accident’ to ‘near murder’.”[^3] As such, manslaughter sentencing has been described as “quintessentially case specific”.[^4]

[43] I have reminded myself of the Court of Appeal’s commentary in R v Danvers, which was there applicable to Toronto but I find, twenty years on, has travelled down the Hwy 401 corridor and become a pressing local concern in London:

Death by firearms in public places in Toronto plagues this city and must be deterred, denounced and stopped. Only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns. … Society must be protected from criminals armed with deadly handguns.

There is no question that out courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the community and must be addressed.[^5]

[44] My review of the sentencing common law for firearms related manslaughter offences informs a generalized range of, at least, 8 – 12 years. This suggested range was noted and not disturbed 10 years ago by our Court of Appeal in R v Jones-Solomon.[^6] Given the ongoing prevalence of gun violence, both locally and across the province, I find that this range of sentence has certainly not been diminished.

[45] The defence provided three authorities to assist with my assessment of an appropriate range of sentence for manslaughter: R v Fan,[^7] R v Ahmed,[^8] and R v Zamora-Doxtator.[^9] The first two decisions involved, in essence, one punch unlawful acts in response to varying degrees of provocation and a momentary lack of judgment. The third involved a retaliatory fatal stabbing after the offender was first stabbed by the victim. The sentences ranged from 3 to 5 years. Unfortunately, those factual circumstances are quite distinguishable from that before me, and I find that they offer little case-specific guidance for parity assessment purposes.

[46] The Crown presented a number of manslaughter sentencing authorities for offences largely involving firearm related violence, including: R v Almarales,[^10] R v Barreira,[^11] R v Cleyndert,[^12] R v Dirie,[^13] Jones-Solomon, R v Smith,[^14] and R v Warner.[^15] It is noteworthy that only one of these matters involved a guilty plea and, helpfully, many of them related to manslaughter party liability. The range of sentence for these matters ranged from between 9 - 15 years.

[47] Of particular assistance relating to this factual narrative, in Cleyndert, the offender attended a “field party” after a high school graduation. “Looking for trouble”, he initiated two confrontations during the course of the party. After insulting and spitting on the victim’s girlfriend, a fistfight ensued. The offender then stabbed the unarmed victim 8 times in the torso with a prohibited weapon, resulting in the victim’s death. The offender was charged with second degree murder but convicted after a jury trial of manslaughter. Finding that his moral blameworthiness was “very high”, the case being much closer to murder than an accident, he was sentenced to 12 years incarceration, a sentence that was sustained on appeal.

[48] In Barreira, the offender pled guilty to manslaughter as a party to a fatal shooting. The offender was called by his brother to attend at an expected physical fight with the victim. The two had previously fought, and retribution was sought. The offender called a third party to attend, who knowingly brought a gun. The offender led the search for the victim and when he was located, the third party shot the unarmed victim in the chest, causing his death. The range of sentence for like conduct was identified by that court as between 13 – 17 years. The trial judge sentenced him to 15 years imprisonment, which was not disturbed on appeal.

[49] With the assistance of these authorities, I am satisfied that the traditional 8 – 12 year range for firearm related manslaughter is supportable under these circumstances. Indeed, it is arguable that this range can be extended to include regular dispositions of up to 15 years.

[50] The range of sentence for assault with a weapon can be equally permissive and case-specific. Section 267(a) of the Code allows for a sentence of imprisonment for not more than 10 years. Given the threat posed by his Logan Marshall attack, including the nature of the weapon involved, the potential for gratuitous violence, and the resulting injury caused, a range of sentence in the upper reformatory to low single digit penitentiary range is within an appropriate range of sentence.

[51] I must now turn my attention to a fit and proportional sentence for Mr. Schaap.

Analysis

[52] An individualized sentence necessitates active consideration of what proportionality demands.

[53] In this vein, by way of aggravating factors, I have considered the following:

1. the consequence of this violence was grave, resulting in the death of a young man, and injury to another;

2. the events involved two victims;

3. the impact upon the victim’s family and loved ones is nothing short of devastating. A beloved young man was lost, and another was injured both physically and psychologically. Both families have had their lives indelibly changed;

4. this was not a spontaneous event, as this offender attended to another’s grievance while armed and intent upon violence. He knew his colleague had a handgun with him and was intent upon using it. He was eager to assist, did so, and was armed for that purpose;

5. this was a brazen attack upon two youthful strangers, in public, with the intention to send an intimidating message;

6. Mr. Schaap fled the scene after these attacks, offering no assistance to the victims;

7. after the fact, Mr. Schaap and his colleagues celebrated their newfound notoriety and that of their purported ‘gang’;

8. this was not Mr. Schaap’s first involvement with the criminal justice system. As a young person, he has been before the court for prior acts of violence including multiple separate assaults and robberies. As a corollary to those convictions, Mr. Schaap was on a mandatory YCJA weapons prohibition which he was deliberately breaching prior to and during this event; and

9. at the time of these offences, Mr. Schaap was immersed in a criminogenic lifestyle, glorifying a handgun culture centred upon perceived power and lawlessness. This engrained attitude weighs negatively upon his prospects of rehabilitation.

[54] By way of balance, I have also considered the following mitigating factors:

1. Mr. Schaap has pled guilty. This is a formal acknowledgement of responsibility and expression of remorse. Determining whether his tearful allocution was a genuine expression of remorse to the Silva and Marshall families, a byproduct of the realization of the consequences of his actions or was merely a performance in keeping with his demonstrated post-offence bravado is a difficult needle to thread. Given his youth and what I will optimistically grant is demonstrated immaturity, I will lean towards genuine remorse and fear over callous self-interest;

2. it is noteworthy that when interviewed by police, he co-operated to some extent and provided an incriminating statement;

3. while Mr. Schaap has a prior youth court record, this is his first adult sentence. He remains a young adult, now merely 23 years of age, which I find enhances his prospects of rehabilitation assuming he can overcome his brash “immature” attitudinal liabilities;

4. as reported in the pre-sentence report, he has accepted and not deflected responsibility for his role in these circumstances;

5. given his youth and goal to reconnect with family, there remains a prospect at rehabilitation. However, confounding his rehabilitative prospects are four apparent custodial institution misconduct findings, including 3 assaults and drug use;

6. as evident by his affidavit, Mr. Schaap has experienced particularly harsh and punitive custodial conditions over the course of his extended pre-trial incarceration; and

7. over the course of his extended stay at the Centre North Correctional Centre, he has been isolated from familial supports who have been unable to travel to see him.

[55] As noted, Mr. Schaap requests that I grant him consideration for the harsh conditions he has endured in pre-sentence custody. Our court of appeal in R v Duncan[^16] grants me the authority to consider the manner of custodial service when determining an offender’s ultimate disposition, when that custody time is particularly harsh. “Duncan credit” is meant to address “exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody.” However, as the Court of Appeal noted in R v Marshall, “Duncan credit” is not a deduction from an otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account.”[^17] It is improper, therefore, to treat “Duncan credit” as a deduction from the appropriate sentence in the same way as the “Summers credit” is applied.

[56] Here, Mr. Schaap’s uncontested affidavit evidence established that he spent time in both the Elgin Middlesex Detention Centre and the Central North Correctional Centre. While this evidence is unfortunately generalized and unsupported by institutional records, he references triple and quadruple bunking and repetitive lockdowns for administrative and Covid-19 remediation purposes. These conditions are no surprise to this court, indeed they have become regrettably expected. As a result, I will grant “Duncan credit” as an additional mitigating circumstance short of it rendering the totality sentence unfit.

A fit sentence for this offence and this offender

[57] While I must appreciate that Mr. Schaap did not pull the trigger leading to Mr. Silva’s death, that in regard to the homicide he was a secondary participant, his participation nonetheless enabled Josue Silva’s death and further caused significant concussive harm to Logan Marshall. Mr. Schaap and his friend were all too eager to involve themselves in another’s petty teenaged conflict. They attended this bush party intent upon intimidation and violence. To affect their joint intention, they came armed with a handgun and machete. Each knew the others intention. They hunted out their prey and, when presented with the opportunity, carried out their premeditated goal.

[58] By Mr. Schaap’s plea, he acknowledges that he aided in an unlawful killing where bodily harm, at least, was objectively and reasonably foreseeable. He caused direct physical harm to Mr. Marshall, who was lucky to escape with his life. He then fled with his colleagues, cowardly leaving Mr. Silva to die. Then, he bragged about their newfound notoriety in the press, highlighting their gang affiliation.

[59] On this narrative, all that Mr. Schaap has going for him is that he did not pull the trigger. Short of that, it is difficult to find much that redeems his respective conduct. His activities in the early morning hours of July 31, 2021, were a manifestation of his earlier demonstrated gun culture bravado. That he was not also armed with a handgun is my only surprise, given the extent of his demonstrated access to firearms. On the spectrum of manslaughter depravity, these circumstances fall far closer to murder than they do to mere accident. The gravity of this offending conduct is extreme, and his moral blameworthiness is very high.

[60] This form of gratuitous violence involving a dangerous weapon and firearm must be condemned in the strongest possible way. My principle sentencing consideration is, and must be, the maintenance of public safety. Both denunciation and deterrence must be prioritized. A significant penitentiary custodial sentence is required.

[61] Grounding the importance of a general deterrent message is the recognition that young adult violence has been a recent source of concern in this community. In this calendar year alone, Josue Silva represents the second 18-year-old university student who was killed and whose offender has appeared before me for sentencing. Indeed, both incidents stem from the summer of 2021. These matters received significant public attention for the tragic and senseless loss of life. A general deterrent message is required to address this local concern.

[62] Further, the proliferation of gun violence has been an ongoing and increasing local concern. Reports of increasing numbers of shootings are made, and now more than ever our courts are facing this reality. Further, remarkably, in the past few years, I have seen multiple machete related weapons offences for reasons that are not entirely clear. What is clear is the dangerousness posed by this form of weapon. While I appreciate that this is anecdotal evidence, this manifesting local concern has been made real and is regularly on our court dockets all too often justifying general deterrence consideration.

[63] That said, Mr. Schaap’s guilty plea, his youth, his police co-operation, and the represented wake up call that 3 years in custody has had upon him alongside the particularly harsh conditions he has experienced while in custody all represent meaningful mitigating factors.

[64] Counsel for Mr. Schaap recommends, in essence, an effective time served disposition. It is suggested that a 5-year custodial sentence can meet the ends of justice. However, as I have noted, this recommendation for weapons and firearms related manslaughter does not fall within an accepted and established range of sentence.

[65] In contrast, I concede the logic of the Crown’s 12-year sentencing recommendation. To some extent, it represents a middle course to what might have been expected had this matter not proceeded by guilty plea. However, appreciating Mr. Schaap’s party status alongside the other mitigating features outlined, including “Duncan credit” consideration, I find that the most appropriate sentence for this still youthful adult offender is 10 years on the manslaughter count.

[66] With respect to the assault with a weapon offence, while the degree of harm was comparatively minor, the risk of harm was nevertheless extreme. But for Mr. Marshall’s ability to escape, it is not difficult to imagine the extent of further, perhaps even fatal, harm that awaited. Mr. Schaap was armed with an extremely dangerous weapon capable of grievous harm and he was prepared, willing and did use it. He did so as part of a joint intention to intimidate and harm those who had offended a friend. On a concurrent basis, based upon the overall transaction involved, I find that the appropriate sentence on the assault charge is 2 years incarceration.

[67] I must now consider the application of Mr. Schaap’s pre-sentence custody. By my calculation, he has been in-custody for 1230 days from August 5, 2021 to the present. Pursuant to s. 719(3.1) of the Code, I grant enhanced Summers[^18] credit upon a ratio of 1.5 to 1, totalling 1,845 days. As a result, on the sentence of 10 years for the manslaughter conviction, Mr. Schaap will serve a remaining 1,805 days, or approximately 55 months, which equals just over 4 ½ more years in prison.

Ancillary Orders

[68] In addition to the custodial term imposed, and in keeping with the firearms and weapons presented context, Mr. Schaap will be prohibited from possessing any weapon or firearm for life, pursuant to s. 109(3) of the Code.

[69] Further, on the basis of primary designated offence findings, pursuant to s. 487.051, he will provide a sample of bodily substance in accordance with the DNA Identification Act.

[70] Finally, pursuant to s. 743.21, while in custody I will prohibit Mr. Schaap from communicating with those parties identified by the Crown, to include all members of the Marshall and Silva immediate families.

Conclusion

[71] Please stand, Mr. Schaap. For the reasons I have provided, I sentence you to a totality sentence of 10 years incarceration. The sentence is 10 years for the manslaughter conviction, with a concurrent sentence of 2 years on the assault with a weapon matter. With credit for time served, you have 1,805 days, or approximately 4 ½ years remaining to serve in-custody.

[72] I thank counsel for their assistance in this obviously difficult matter.

Justice M. B. Carnegie

Released: December 17, 2024

COURT FILE NO.: 22-393

DATE: 20241217

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

DYLAN SCHAAP

JUDGMENT ON SENTENCE

Mr. Justice Michael Carnegie

Released: December 17, 2024

[^1]: R v Lacasse, 2015 SCC 64, [2015] 3 SCR 1089

[^2]: Ibid, at para 12

[^3]: R v E.H., 2005 BCCA 3, [2005] BCJ No 4 at para 20

[^4]: R v Fan, 2019 ONSC 6403 at para 59

[^5]: R v Danvers, 2005 30044 (ON CA), [2005] OJ No 3532 (CA) at paras 77-78

[^6]: R v Jones-Solomon, 2015 ONCA 654

[^7]: R v Fan, 2019 ONSC 6403

[^8]: R v Ahmed, 2024 ONCJ 568

[^9]: R v Zamora-Doxtator, 2021 ONSC 546

[^10]: R v Almarales, 2008 ONCA 692

[^11]: R v Barreira, 2020 ONSC 6558; R v Barreira, 2021 ONCA 455

[^12]: R v Cleyndert, 2006 33851 (ON CA), [2006] OJ No 4038 (CA)

[^13]: R v Dirie, 2018 ONSC 5536

[^14]: R v Smith, 2022 ONSC 3800

[^15]: R v Warner, 2019 ONCA 1014

[^16]: R v Duncan, [2016] ONCA 754

[^17]: R v Marshall, 2021 ONCA 344 at paras 50-53

[^18]: R v Summers, 2014 SCC 26, [2014] 1 SCR 575