ONTARIO COURT OF JUSTICE
CITATION: R. v. Daley, 2026 ONCJ 511
DATE: 2026 08 24
COURT FILE No.: Toronto Region
24-50002774
BETWEEN:
HIS MAJESTY THE KING
— AND —
Demarc Orlando DALEY
Before Justice Cidalia C. G. Faria
Heard on July 24, 2026
Reasons for Sentence released on August 24, 2026
Shannon Darby................................................................................... counsel for the Crown
Nora Fathalipour........................... counsel for the defendant Demar Orlando DALEY
[1] I found Demarc Daley guilty of assault causing bodily harm after trial on April 29, 2026. I heard sentencing submissions on July 24, 2026. These are my reasons for sentence.
I. Facts
[2] On December 30, 2024, Mr. Daley was a resident of the Maxwell Meighan Centre located at 135 Sherbourne Street in Toronto. This is a mens shelter for vulnerable and marginalized men with no housing. The victim, Kalaiselvan Namasivayam, also a resident at the Centre was milling about the courtyard with other men, when Mr. Daley ran across the courtyard at a high rate of speed in a straight line right into Mr. Namasivayam and knocked him to the ground from behind. Mr. Daley continued running past Mr. Namasivayam, then returned to briefly lean over him as he lay on the concrete, then just left there as others looked on.
[3] Mr. Namasivayam hit his head on the concrete flower curb and left two pools of blood on the concrete floor of the courtyard, and a patch of hair tangled on a crack in the concrete. He lost consciousness. He sustained trauma to the head and face including 13 stitches to the top of his forehead, 4 stitches on his left eyebrow and observable injuries captured on video of one eye swollen shut, blood on his face, his nose red and swollen, and a bloody and swollen mouth. He also had to wear a neck brace for 6 weeks.
II. Demar Daley
[4] Mr. Daley is a 38-year-old Canadian citizen who came to Canada when he was 2 years old.
[5] He grew up looking after himself as his mother worked two jobs which was difficult. He did not finish high school and started working early to support himself and help his mother. He has worked in restaurants, he was a non-patient emergency driver, fork lifter for 10 years, and a doorman for events. He re-focused on education and completed his Canadian Adult Education Credential and started a firefighter program at Centennial College but did not complete it.
[6] While he was in college, he experienced overt racism. When he brought it to the institution’s attention, they were unsuccessful in addressing the issue which further traumatized him.
[7] He has 3 children ages 17 to 9 with whom he is not involved.
[8] Mr. Daley did not endure the pandemic well. He experienced suicidal ideation and was hospitalized. He lost his job and became homeless in 2024. He was diagnosed with borderline personality disorder and depression. He entered the shelter system and did not feel safe enough to take his medication while in a shelter because of the medication’s side effects which made him less alert. As he was surrounded by drug use, he felt threatened. It was during this time of non-compliance, high stress, and lack of sleep that Mr. Daley committed the offence.
[9] Since then, he has obtained secure permanent housing and is now receiving Ontario Disability Support Program (ODSP) assistance stabilizing his finances. He has diligently reported to Bail Program for almost 2 years.
[10] In addition, Mr. Daley has participated in counselling at Sound Times, and Inner-City Health Associates, Fred Victor, and obtained medical treatment at Reconnect Health Services.
[11] Each of these organizations provided letters to the court verifying Mr. Daley’s participation, accomplishments, and describing him in positive, even glowing terms.
III. Impact on Victim
[12] Mr. Namasivayam did not provide a victim impact statement; however, he testified as to the impact of his injuries during the trial. He specifically described having to wear a neck brace for 6 weeks, having to return for medical attention, having difficulty with sleep and experiencing headaches.
[13] The photos of the pools of blood on the concrete where he hit the curb showed a not insignificant loss of blood. The body-worn camera video of Mr. Namasivayam in hospital after the assault also depict a considerably injured man under serious medical care with numerous injuries to his face and head.
IV. Position of the Parties
[14] The Crown submits a 4-month jail sentence minus pre-sentence custody, a 12-month probation, two ancillary orders is the appropriate sentence. She emphasized the significant injuries the victim sustained and the fact Mr. Daley did not attempt to render aid to be aggravating. She filed to support her position.
[15] The Defence submits a 5-month conditional sentence is appropriate and the rehabilitative objectives of a probation can be met during such conditional sentence, so that a probation order is not necessary. Counsel takes no issue with the two ancillary orders recommended by the Crown. She emphasizes Mr. Daley’s lack of a criminal record, his rehabilitative efforts, and his mental issues to argue that a conditional sentence is a fit one.
V. Sentencing Principles
[16] Every sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This court is guided by ss. 718 to 718.2 of the Criminal Code.
[17] The sanction that the court imposes should have one or more of the following objectives:
- to denounce unlawful conduct
- to deter the offender and other persons from committing offences
- to separate offenders from society, where necessary
- to assist in rehabilitating offenders
- to provide reparations for harm done to victims or to the community
- to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.
A. Aggravating Factors
[18] The impact of the bodily harm on Mr. Namasivayam is aggravating. Mr. Daley is clearly larger, taller, and heavier than Mr. Namasivayam. His full force hit caused significant bodily harm both at the time of the offence, and harm that has been long-lasting and, including experiencing trouble with sleep and headaches at the time of trial.
[19] This assault was a purposeful, unprovoked attack from behind on an utterly unsuspecting and vulnerable victim.
[20] In addition, Mr. Daley callously leaned over Mr. Namasivayam while he was lying unconscious and bleeding on the concrete and just left Mr. Namasivayam there.
B. Mitigating Factors
[21] There are numerous mitigating factors to consider as well, including:
i. Mr. Daley has no criminal record.
ii. He has a positive diverse work history.
iii. He has upgraded his education.
iv. He has engaged in both medical treatment and rehabilitative counselling to deal with his mental health conditions since the offence, and is now mentally stable.
v. He has stabilized himself in the community by obtaining permanent and secure housing.
vi. He is a Black man who has experienced racism, both systemic and personal overt targeting.
C. Discussion
[22] The sanction for an unprovoked assault from behind on an unsuspecting, vulnerable victim must reflect the gravity of the offence. An assault that has such a significant physical impact and caused the injuries that Mr. Daley is responsible for, further accentuates the requirement the sanction must primarily reflect denunciation and deterrence.
[23] Both parties agree a period of custody is warranted; the issue is whether it should be served in jail or in the community.
[24] The cases the Crown provided[1] although helpful illustrations of simple assaults that cause tragic injuries, are distinguishable from the case at bar, as can be expected when every sentencing must be an individualize task that addresses the specific offender and the specific offence at bar.[2]
[25] In each case, the intentionality of the offender, the extent of the injuries, and/or the circumstances of the offence are sufficiently different from the moral blameworthiness and injuries sustained in this case.
[26] Denunciation and deterrence are attenuated by the principles of rehabilitation and restraint in these circumstances.
[27] Mr. Daley has demonstrably addressed several of the contributing factors to his offending. He is now taking mental health treatment, he has obtained housing, he has acquired financial support, and he is stable.
[28] In addition, as a Black man who has experienced limited education, financial strain, lived in challenging environments, and was raised by a single mother, all of which are well established socio-economic indicators of the effects of anti-black racism in Toronto, as well as having experienced direct racist behaviour in an adult educational setting for which there was no accountability, the Morris[3] factors are applicable to Mr. Daley’s sentencing.
[29] Mr. Daley as a first-time offender also benefits from the principle of restraint per s.718.2(d).
[30] Pursuant to s. 742.1, a conditional sentence order may be made if 5 pre-conditions are met. In this case, 4 of the 5 pre-conditions are easily met:
i. Assault bodily harm is not an excluded offence.
ii. There is no minimum sentence for the offence of assault bodily harm.
iii. Neither a suspended sentence nor a penitentiary sentence is appropriate in this case.
iv. Having no criminal record and having abided by his release conditions for almost 2 years, Mr. Daley poses no danger to the community that conditions of a conditional sentence order cannot address.
[31] The focus then is on the fifth prong: is a conditional sentence order consistent with the fundamental purpose and principles of sentencing?
[32] A conditional sentence is intended to address both punitive and rehabilitative objectives as stated by the Supreme Court in R. v. Proulx, 2000 SCC 5 at para. 22.
[33] Given Mr. Daley’s antecedents, his rehabilitative efforts and success, and the applicable Morris factors, I find that in this case a conditional sentence can and does reflect the required principles of denunciation and deterrence, rehabilitation and restraint, and is consistent with the principles of fundamental justice.
[34] I consider that it must be of sufficient length to reflect the gravity of the offence, and the unique blameworthiness of Mr. Daley’s uncharacteristic momentary burst of violence that caused considerable bodily harm.
VI. Sentence
[35] Nine days of pre-sentence custody, enhanced to 14 days will be noted. I sentence Mr. Daley to a further 8 months custody to be served in the community and 12 months probation. The terms of the conditional sentence are attached, as are the terms of probation.
[36] I also order Mr. Daley provide a sample of his DNA and be prohibited from possessing weapons pursuant to a s. 110 order for 5 years.
Released: August 24, 2026
Signed: Justice Cidalia C. G. Faria
Terms of 8-month CSO:
While you are serving the conditional sentence, you will:
i. Abide by all the statutory terms and conditions.
ii. Report within 24 hours of this order.
iii. Co-operate with your Conditional Sentence Supervisor (CSS) and sign all releases to permit your CSS to monitor your compliance with all terms of this CSO.
iv. Reside at your current address.
v. Remain in Ontario.
vi. Have no contact with the complainant directly or indirectly except through legal counsel and/or for the purposes of legal proceedings.
vii. Not be within 100 meters of the complainant except for the purpose of legal proceedings.
viii. Remain on the property of your residence during the duration of the CSO except:
a. From 12 noon to 4:00 p.m. on Saturday and Sunday for the necessaries of life.
b. During medical emergencies.
c. When travelling directly to, while at, and returning from:
i. Your place of employment as confirmed by your CSS and during the hours approved by your CSS.
ii. Attending a job interview as confirmed by your CSS and during the hours approved by your CSS.
iii. Pre-scheduled medical, counselling, dental, legal, court and religious commitments as confirmed by your CSS during the hours approved by your CSS.
iv. Attending programming as directed by your CSS.
v. Attending a gym, or recreational centre for a period of no more than 2 hours at a time, and for no more than 3 times a week as confirmed by your CSS and during the hours approved by your CSS.
vi. Walking for a period of 30 minutes, within Jarvis St. to the west, Gerrard St. to the south, Parliament St. to the east, and Wellesley to the north, as pre-scheduled and confirmed by your CSS, the permission with which you will carry on your person.
vii. With the prior written approval of your CSS to be carried on your person.
Terms of 12 month probation:
During the probation, Mr. Daley you are not to have contact the victim, nor be within 100 metres of him. You are to take counselling as directed by your probation officer, sign releases so that such counselling is monitored by the probation officer. You are to report within 2 business days of the end of your conditional sentence order and thereafter as directed.
1R. v. Berry, 2015 ONSC 2560, affirmed 2018 ONCA 86, R. v. Dinney, 2012 ONCA 497, R. v. Huh, 2015 ONCA 356, R. v. Meltz, 910 November 2025), Toronto (ONCJ)
2R. v. Lacasse, 2015 SCC 64 at para. 58
3R. v. Morris, 2021 ONCA 680 at para. 86.