R. v. Mackenzie
Ontario Court of Justice
Court Information
Between:
His Majesty the King
ā AND ā
Daniel Mackenzie
Before: Justice Fergus O'Donnell
Reasons for Sentence Delivered Orally on: 11 July, 2025
Written Reasons Released on: 11 August, 2025
Counsel:
- Alannah Grady, for the Crown
- Alexandra Valeri, for the defendant, Daniel Mackenzie
Overview
1Daniel Mackenzie has pleaded guilty to three charges arising out of two separate incidents exactly seven months apart. The two incidents were, first, a threat aimed at a corrections officer and, second, an assault with a weapon against his domestic partner that included a breach of his bail order not to possess weapons. As of today, Mr. Mackenzie has been in custody a total of seventy-six real days.
2Before Mr. Mackenzie entered his pleas, he addressed me directly and made a fairly impassioned plea that I keep an open mind before I heard his case and his background. At a later point he said, "whenever I say something, nobody listens." When he asked me to keep an open mind, it struck me as rather odd that he would feel the need to ask a judge to do that. Having heard and reviewed his history, I think I understand why he could feel it necessary to ask for something that should be taken as a given.
The Offences
3The threatening occurred on 6 October, 2024. Mr. Mackenzie was outside the Hamilton Wentworth Detention Centre when he called out to corrections officer Collison, who happened to be leaving work, telling Collison he was waiting to "pop off" the "tall blonde guy who can't keep his mouth shut". The synopsis detailed, as a presumably relevant fact, that Mr. Mackenzie was holding a lunch-bag mid-torso. The "tall blonde guy" was determined to be corrections officer Chaisson. At the time he made this threat, Mr. Mackenzie was bound by a peace bond to keep the peace. Mr. Mackenzie was released on bail with a surety, his partner Colleen Hunter.
4The Crown's original description of this event was that Mr. Mackenzie told the corrections officer Collison that he was waiting to "shoot" a corrections officer, but the detailed facts read out show that the word "shoot" was not used, but instead the phrase used was specifically "pop off", which Mr. Mackenzie said in court meant to fight. The words are obviously ambiguous in the abstract, but I have no reason to reject Mr. Mackenzie's expressed intention in using them as that assertion is logically consistent with his assertion that the guard he wanted to "pop off" had earlier challenged him to a fight. Mr. Mackenzie also said that his presence at the jail was purely coincidental; he was not lurking there, but rather passing by on his way home. As for any implication to be drawn from the fact that Mr. Mackenzie had a lunch bag mid-torso, there is no rational basis to read anything into that for the purpose of sentencing. Countless people going to or returning from work or school take their lunch with them. Sometimes a lunch bag is just a lunch bag.1
5Seven months later, on 6 May, 2025 Mr. Mackenzie and Ms. Hunter were at a property in Hamilton that he uses as a yard for his construction business. A neighbour called the police, reporting that he or she had overheard an argument between them and a threat by Mr. Mackenzie to Ms. Hunter. The neighbour said he had seen Mr. Mackenzie chase Ms. Hunter while holding a knife and that he had shoved her, which the neighbour had captured on CCTV. The CCTV footage was not played on the plea. Ms. Valeri and Mr. Mackenzie advised that the incident on 6 May, 2025 was at a work site and that the "knife" involved was a tool that Mr. Mackenzie was using to strip wire when he got in the confrontation with Ms. Hunter. The Crown said that on arrival the police tried to de-escalate/disengage a supposedly belligerent Mr. Mackenzie; Mr. Mackenzie's characterization of that interaction was not at all the same. I have no basis at all to favour one version or the other so any supposed belligerence or resistance on Mr. Mackenzie's part cannot play any role in my sentencing decision. Mr. Mackenzie said that he had been harassed by the police before at that location, his workshop, and that his Post-Traumatic Stress Disorder originates from being beaten by the police in the past. Ms. Hunter, the victim on the assault charge, said that she had witnessed Mr. Mackenzie being harassed by the police over the past two years (the length of their relationship) and she had been subjected to the police following her also.
Positions on Sentence
6The Crown seeks a seven-month sentence (less pre-sentence custody) plus three years of probation, along with the usual ancillary orders. The Crown takes the position that seven months is at the extreme low end of the sentencing range here.
7Mr. Mackenzie says that, in addition to his time in pre-sentence custody, he should be sentenced to ninety days in custody to be served intermittently, which would bring his custodial period close to the Crown's position. That outcome would also allow Mr. Mackenzie to return to his business and support himself and Ms. Hunter, who is in financial distress managing the household expenses plus Mr. Mackenzie's payments, such as for his truck, which is used for the business, with no income coming in from his side over the past two-and-a-half months. He agrees there should be a probation order.
Mr. Mackenzie's Record
8Mr. Mackenzie has a very troubling criminal record. At the age of twenty-nine, he has twenty-five criminal convictions, twenty-eight including his convictions before me. There are about ten failure-to-comply/failure-to-attend-court convictions. There are also about ten convictions for threatening, assault and weapons-type offences, including a conviction for aggravated assault in 2018, for which he received a six-month sentence. That number also includes a 2020 conviction for possession of a firearm contrary to a prohibition and related offences, for which his effective sentence was four-and-a-half years consisting of twenty-nine months of pre-sentence custody credit and a twenty-five-month penitentiary sentence. There is no doubt that this is the sort of record that causes one to sit up and take notice.
9By a rough calculation, Mr. Mackenzie would have been twenty-three years old when he committed the firearms offences that got him the equivalent of a four-and-a-half-year sentence in November, 2020.
10When I said Mr. Mackenzie's record is troubling, however, I did not mean that it was troubling only because of the number or types of entries on his record. There are at least two other reasons why the record is troubling and those reasons do not reflect poorly on Mr. Mackenzie, but rather poorly on the administration of justice.
11The first of these significant concerns is that, at the age of twenty-nine Mr. Mackenzie has never had the benefit of any of the following: a pre-sentence report or a Gladue report or a Gladue letter. To approach that from the other side, the people making significant decisions about Mr. Mackenzie, Mr. Mackenzie's moral culpability and Mr. Mackenzie's freedom have never had the benefit of a pre-sentence report or of a Gladue report or of a Gladue letter.
12The other significant concern is that, with the exception of Mr. Mackenzie's first criminal record entry (for failing to comply with a recognizance and failing to attend court when he was fifteen years old), all but two of his eleven sentencings have resulted in real jail sentences (He was given a thirty-day conditional sentence for possession for the purpose of a controlled substance in 2017 and a suspended sentence for an assault in Midland in 2019.)2
Mr. Mackenzie's Background
13With respect to Mr. Mackenzie's background, I am told that his father died when Mr. Mackenzie was only six months old. Mr. Mackenzie then did not learn about his indigenous roots until shortly before his grandfather died and he has since done sweats and pow-wows but has had limited exposure due to his upbringing. The Crown says he has shown limited engagement with the Hamilton Indian Centre, a contention that Mr. Mackenzie disputed, saying contact opportunities were limited.
14Mr. Mackenzie was raised as one of three children of a single mother, who had to work to support the family. As a result, she used her boyfriends and others as babysitters and Mr. Mackenzie was repeatedly physically abused by them and locked in his room, which led to him acting out in school and bullying. He was taken into care, but only briefly. He changed schools often. These are among the classic seeds of poor outcomes. As the American abolitionist Frederick Douglass is reputed to have said, "it is easier to raise strong children than it is to fix broken men." (It may be that Mr. Douglass is in the same category as Mark Twain, to whom many comments may have been attributed falsely, but the sentiment is both consistent with Mr. Douglass's perspective and, even more importantly, a brilliant encapsulation of an enormous social failing in this country and others).
15Around the time that Mr. Mackenzie was fifteen or sixteen years old (also around the time of his first interaction with the criminal courts), his mother left him behind in Cayuga because she was unable to cope with his behavioural issues. She left Mr. Mackenzie in the care of a person who taught him trades, which was good. That person, however, also sexually abused Mr. Mackenzie, which is another seed of future harm, both to Mr. Mackenzie and to others.
16Mr. Mackenzie has worked at various jobs including at Ford Motor Company and various roofing companies. He lost his most recent roofing employment as a result of a previous charge relating to Ms. Hunter. He has also run his own company doing roofing, demolitions, scrap removal and the like. He is also training as an electrician. He runs the business with Ms. Hunter and it has lost projects during his incarceration on these charges.
17He has been diagnosed from a young age as bipolar and suffering from Attention Deficit Hyperactivity Disorder, Attention Deficit Disorder, Post-Traumatic Stress Disorder, major depression and insomnia. Ms. Valeri advises that Mr. Mackenzie deals with these issues through medication, that he is fairly compliant with the medication regimen and that he has been making efforts to have those medications provided while in custody. She said that he had run out of medications at the time of the offences involving Ms. Hunter and acted out in their absence. She also said that Mr. Mackenzie's Post-Traumatic Stress Disorder sometimes causes him to lash out in anger in situations where he feels threatened.
Mr. Mackenzie's and Ms. Hunter's Comments to the Court
18I also heard from Mr. Mackenzie directly and from Ms. Hunter.
19Mr. Mackenzie spoke very well. He agreed that events sometimes trigger him, leading to anger and to him doing "dumb stuff". He said, "I try".
20Mr. Mackenzie pointed to a missing tooth and said that C.O. Chaisson, the corrections officer he threatened to "pop off", was responsible for that, but that he himself (Mr. Mackenzie) needs to learn to keep his mouth shut. He said that Chaisson had himself offered to meet Mr. Mackenzie across the street at the time he allegedly caused Mr. Mackenzie to lose his tooth.
21Mr. Mackenzie said he had a traumatic childhood, which he volunteered was "no excuse", adding, "I need to stop my shenanigans".
22Mr. Mackenzie presented a sheaf of certificates from the Hamilton-Wentworth Detention Centre demonstrating his completion of multiple programmes, workbooks and individual sessions focusing heavily on anger management, relapse prevention, relationships and life skills. He had also done five DBT group sessions as of a week-and-a-half ago. These have all been done in the course of a couple of months.
23Mr. Mackenzie said that in his time in custody he has been engaged as a bathroom cleaner and that he encounters black mold everywhere, including on food, the portions of which he describes as tiny. He did not see a doctor until after he had been in custody for a month and that only happened after a call to the ombudsman. Even at that, he said, he is only getting some of his required medications. He described conditions of serious overcrowding. Mr. Mackenzie's descriptions did not seem at all exaggerated; to the contrary they had the ring of truth to them. And his comments about overcrowding and access to medical care and medications have long been asserted by defendants and their counsel and triple-bunking at least has long been substantiated by institutional records. It all seems sadly reminiscent of Fyodor Dostoyevsky's plaintive comment over a century ago that: "A society should be judged not by how it treats its outstanding citizens but by how it treats its criminals." It is not that prison should be a luxury resort, or that offenders should be able to cast all blame for their behaviours on external factors, but rather that society should demonstrate by its own example and behaviour toward its inmates the kind of treatment that society expects inmates to show to other members of society, rather than disinterest, deprivation and neglect (and sometimes worse), of the kind that many inmates have already experienced elsewhere in their lives. Experience suggests that Dostoyevsky's enlightened perspective does not permeate the world of corrections. Indeed, recent scandalous events at Maplehurst Detention Centre and the provincial government's tepid response (to use a charitable word) to them lend real credence to inmate complaints about a broken correctional system that the powers-that-be care nothing about. The reality, of course, is that badly run prison systems are perpetuators of criminal behaviour, as are social conditions of poverty, child neglect, child abuse, housing insecurity and limited access to mental health care among other things. Society's entitlement to complain about much criminal behaviour is hypocritical so long as society does not bother to deal with that criminal behaviour's roots.
24Ms. Hunter, the victim of the assault, was present in court throughout Mr. Mackenzie's sentencing hearing. She said that the police refused to take a statement from her unless it incriminated Mr. Mackenzie. She said the Crown's office refused to accept a statement from her. She said she had spoken to the Victim Witness programme multiple times about her views. She confirmed Mr. Mackenzie's recent history and that he had reached out for help many times leading to dead ends. She has met with the Hamilton Region Indian Centre. She said that Mr. Mackenzie has volunteered his time to assist her with her work in inner-city education.
Sentencing Principles
25The Criminal Code defines the objective of sentencing as the protection of society and enhancement of respect for the law and of a just, peaceful and safe society. To do this, any sanction must focus on the denunciation of crime, deterrence of the individual defendant and other potential offenders, as well as allowing for reparations for harm done, the rehabilitation of the defendant and the creation of a sense of responsibility in the offender. It is worth noting that the "separation of an offender from society", is explicitly qualified as only "where necessary" and s. 718.2(d) specifically cautions against the use of jail where other options may suffice. In addition, s. 718.2(e) says that all reasonable options other than jail should be considered for all offenders, but especially for indigenous offenders. No such restraint in the use of imprisonment appears to have been exercised in most of Mr. Mackenzie's sentencings.
The Present Case
26There are obvious aggravating factors present here. A threat against a correctional officer arising from his work in that role cannot be condoned, even where there may be provocation, a factor that I am not in a position to accept or reject on the record before me.3
27The assault on Ms. Hunter occurred in the context of a domestic relationship, which is also an aggravating feature, although I note that Ms. Hunter clearly wants to maintain her relationship with Mr. Mackenzie, clearly perceives the police treatment of Mr. Mackenzie as a bigger problem than Mr McKenzie is and feels more victimized than protected by the process. As with Mr. Mackenzie's assertion that corrections officer Chaisson had injured him, I again cannot determine the real facts underlying Ms. Hunter's comments, but if the police declined to take her statement because it would not help in the prosecution of Mr. Mackenzie, that would be a fundamental and shameful breach of their duties as keepers of the peace; it is not the role of the police to determine the right and wrong of allegations or to filter out narratives that do not match their preferred outcome. With respect to the demonstrated facts on the plea, however, they are limited to the fact that Mr. Mackenzie chased Ms. Hunter and shoved her while holding a knife. That technically makes out the offence of assault with a weapon, but the record before me does not go beyond the idea that the assault happened while holding a knife as opposed to the knife specifically being used to cause injury. Mr. Mackenzie's version that he had been stripping wire with the knife before the confrontation cannot be ignored.
28Mr. Mackenzie's record is obviously alarming, as I have said before. Although there is limited violence on it, one of those violent offences is an aggravated assault and there are several weapons offences and a history of disobeying court orders. Sentences will tend to increase as an offender's criminal record expands.
29The "cardinal principle" of sentencing, however, is that it must be proportional; it must match the objective seriousness of the offences and the offender's moral responsibility. While Mr. Mackenzie, to his credit, is right that his conduct cannot be excused by his awful childhood (which is rather an understatement for chronic neglect, deprivation, parental abandonment and physical and sexual abuse by people entrusted with the care of a child), his moral responsibility cannot be properly measured without reference to that history and to the mental health consequences that, entirely unsurprisingly, ensued from that. To expect him to have emerged from that background and conducted himself flawlessly in society would be the height of delusional thinking.
30It is not my role to conduct a royal commission on Mr. Mackenzie's historic treatment by the criminal justice system. I was not there. I do not know what was said or unsaid in the past. However, some of the items I mentioned earlier are glaringly incomprehensible, so it is also not my role blindly to use those sentences as determinative of the outcome before me in light of what I have noted in these reasons. Mr. Mackenzie's second sentence as a youth (for breach of recognizance and threatening), which involved sixty-three days of pre-sentence custody as a seventeen-year old, did not happen under the dystopian, early twentieth-century Juvenile Delinquents Act, or even the intervening Young Offenders Act of 1984, but a whole decade after the introduction of the Youth Criminal Justice Act in 2003, which was supposed to herald a new age in the treatment of young offenders and a genuine understanding of the fundamental differences between young offenders and mature adults in relation to criminal behaviour. That sentence, as well as his first adult sentence, at age nineteen, of an equivalent eight months' imprisonment for simple possession of a controlled substance and possession of a prohibited or restricted weapon (most commonly switchblades, flick-knives, mace, brass knuckles and the like) are very hard to reconcile with the long-established proposition calling for real restraint in the use of prison for youths and for youngish adult offenders. That proposition was not established almost thirty years ago by the judgment of Rosenberg J.A. speaking for the Court of Appeal in R. v. Priest, 1996 CanLII 1381, although it was very clearly emphasized there; to the contrary, the Priest court was simply reaffirming what the Court of Appeal had said in a 1974 decision, twenty-one years before Mr. Mackenzie was born. These sentences, first two months as a young offender and then eight months as a nineteen-year-old, even if those courts knew nothing of Mr. Mackenzie's awful upbringing and nothing of his indigenous antecedents, are as hard to fathom and as hard to reconcile with established principles of sentencing as they are likely to have further damaged Mr. Mackenzie. The absence of a pre-sentence report is also hard to understand. Most recently, we have Mr. Mackenzie being sentenced to a mid-single-digits penitentiary equivalent, for offences committed as a twenty-three year old, again without a pre-sentence report.
31The absence of a Gladue report on these various historical sentencings is harder to measure as the chronology is not clear as to when Mr. Mackenzie became aware of his indigenous background. I stress, however, that his lack of knowledge of that background does not make the background irrelevant as a sentencing consideration now that it is known: it is the generational damage lurking in his history that deserves attention, not his personal knowledge of that history. (I note that a Gladue report was waived in this instance; I certainly understand that as: (a) the Crown's position on sentence, a remnant of perhaps three months would almost certainly have disqualified him for a Gladue report, and (b) the same would likely be true for a Gladue, and (c) the timelines required to do either would, in this case (but not in the 2020 firearms case) have been self-defeating.)
32In coming to what I consider to be a fit sentence for Mr. Mackenzie, I have taken into account the nature of his offences, including their aggravating circumstances and including his criminal record. I also take into account his guilty pleas, which are widely recognized as, at a minimum, saving court time, which continues to be of significant concern as the courts continue to try to achieve timely outcomes in a post-Covid and Jordan world. Quite apart from that, having listened to Mr. Mackenzie at substantial length, I take him to have meaningful insight into his issues and challenges, a real desire to stick to his medications and control his impulses and a desire to do better in the future. None of this will be easy because his challenges are great, because the damage done to him has been great and, with respect, I am not confident that the criminal justice system has done a very good job of improving his chances of success. This, of course, does not excuse Mr. Mackenzie of all responsibility and he has over the years paid a substantial cost for his offences, but it would be unjust to deny that which is glaringly obvious here: that Mr. Mackenzie's moral responsibility is shared with the society that created him. In the words of the poet W.H. Auden:
I and the public know
What all schoolchildren learn
Those to whom evil is done
Do evil in return.
33Mr. Mackenzie has an uphill battle to avoid future offences; indeed there is no guarantee that he will not re-offend, perhaps in a small way, perhaps in a greater way. But criminal sentences are not capable of guaranteeing safe outcomes unless we "warehouse" offenders, the very word of which is offensive. If society gives him the supports he needs and if he commits himself to engaging with that support, to picking himself up and starting again when he trips up, to complying with his medication needs and to learning to ignore every real or perceived provocation, which he seems to be trying to do, then this could turn out well.
34As for the appropriate sentence, I see no valid role for additional jail time here. I share with Ms. Hunter the view that whatever mechanism will assist Mr. Mackenzie to rehabilitation and thereby to make society safer, jail is not that mechanism.
35I am satisfied that the appropriate sentence to be imposed here is as follows:
a. On the charge of threatening, thirty days of pre-sentence custody will be noted as the equivalent of forty-five days.
b. On the charge of assault with a weapon, twenty days of pre-sentence custody consecutive will be noted as the equivalent of thirty days.
c. On the charge of failing to comply with a recognizance, four days of pre-sentence custody consecutive will be noted as the equivalent of six days. (This reflects the fact that the knife's brief status as a weapon was both brief and very much situational).
36This amounts to a total of fifty-four real days of pre-sentence custody, the equivalent of eighty-one days at the usual ratio of one-and-a-half to one day.
37In addition to the pre-sentence custody, I suspend the passage of sentence and place Mr. Mackenzie on probation for two years on the following conditions:
a. Report to probation within four days and thereafter as required.
b. Not to have any contact or communication with Mackenzie Chaisson unless required while in custody.
c. Not to be within twenty metres of Mackenzie Chaisson or any place he lives, works, attends school or is otherwise known to be unless required while in custody.
d. Attend for assessment and counselling as directed by probation, including but not limited to intimate partner violence, trauma, mental health and substance abuse. It is recommended that this incorporate indigenous-focused programming including in cooperation with the Hamilton Regional Indian Centre or similar indigenous organizations.
e. Sign releases and provide proof of compliance.
38There will be an order under s. 100 of the Criminal Code for five years.
39The assault with a weapon is a primary designated offence for the purposes of the DNA registry. Mr. Mackenzie will have thirty days to provide a DNA sample.
40In light of what I have heard from Ms. Hunter about the family's financial situation, I am satisfied that imposing the victim surcharge would cause a substantial hardship and so the victim surcharge is waived.
Released: 11 August, 2025
Footnotes
Footnotes
- I do not recall "lunch bag" as being among the "characteristics of an armed person", although obviously one has to be cognizant that any form of baggage "could" carry a weapon as easily as it carries legitimate items. That fact may be one relevant consideration for a public officer assessing his or her safety and public safety in dealing with an individual, but the establishment of reasonable suspicion or reasonable grounds is very, very different from proving a fact beyond a reasonable doubt, which is the standard for any aggravating fact on a criminal sentencing hearing.
- The record did not say whether or not there had been pre-sentence custody on either of these sentences.
- There was no victim-impact statement from C.O. Chaisson and no evidence led with respect to Mr. Mackenzie's allegation that C.O. Chaisson had injured him, so I cannot reach any conclusions, but I did notice throughout Mr. Mackenzie's comments that he was not shy about admitting his own shortcomings.