ONTARIO COURT OF JUSTICE

CITATION: R. v. Campbell, 2018 ONCJ 736

DATE: 2018 10 23

COURT FILE No.: Brampton 16-247

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

STEPHEN CAMPBELL

Before Justice I. Jaffe

Sentencing Hearing Held on April 18, May 4, June 14, and July 26, 2018

Reasons for Sentence released on October 23, 2018

C. Waite................................................................................................. counsel for the Crown

The accused Stephen Campbell ............................................................ on his own behalf

JAFFE J.:

Introduction

[1] On January 6, 2016, Stephen Campbell stabbed his co-worker Andrew Maikoo multiple times in the neck and head, leaving Mr. Maikoo permanently, and severely, disabled. On August 3, 2017, I found Stephen Campbell guilty of attempting to murder Mr. Maikoo. His conviction followed a trial in which the sole issue was whether Mr. Campbell suffered from a mental disorder which rendered him incapable of knowing that what he was doing was wrong.

[2] I found that Mr. Campbell was probably suffering from a mental disorder which contributed to his belief that Mr. Maikoo was persistently harassing him at home and at work. I also found that Mr. Campbell was probably clinically depressed at the time of the offence.

[3] However, despite Mr. Campbell’s probable depression and delusions concerning Mr. Maikoo’s harassment, I found Mr. Campbell retained an ability to know right from wrong, and that he was capable of applying that knowledge in a rational way to the offence. I rejected Mr. Campbell’s NCR defence, and I found him guilty.

[4] Throughout the course of his trial, Mr. Campbell was represented by defence counsel Lorne Sabsay who he discharged shortly after he was found guilty. Mr. Campbell then retained Robert Chartier who, after filing some sentencing materials, was also discharged. Russell Browne was then retained, made submissions on Mr. Campbell’s behalf at the sentencing hearing, but he too was discharged. Thereafter, I permitted Mr. Campbell to make submissions on his own behalf.

[5] During his submissions, Mr. Campbell made several references to a report which detailed the results of an assessment he underwent while being held at the Maplehurst Detention Centre. The assessment was conducted by psychologist Dr. Gill for the purpose of creating a treatment plan in the event Mr. Campbell is transferred to a federal penitentiary. Dr. Gill’s report was made an exhibit on his sentencing.

[6] Upon reviewing the report, I was of the opinion that the Court could benefit from the viva voce evidence of Dr. Gill. The purpose Dr. Gill’s evidence was to simply decode some of the terminology used in her report and to clarify some of her conclusions. It was made clear to the witness, and to both parties, that Dr. Gill was not a witness for either side but was simply called to assist the Court. Both the Crown and Mr. Campbell were afforded opportunities to ask questions of Dr. Gill.

Positions of the Parties

[7] To say that the Crown and defence are far apart in their sentencing positions would be an understatement. For the Crown, Mr. Waite seeks a life sentence.

[8] During his brief representation of Mr. Campbell at his sentencing hearing, Mr. Browne argued that a sentence in the reformatory range would be appropriate and would possibly enable Mr. Campbell’s placement at the St. Lawrence Valley Correctional and Treatment Centre in Brockville, a treatment facility reserved for adult males who have received reformatory sentences and who have been diagnosed with mental illness. Since discharging his lawyer, Mr. Campbell has maintained this position, arguing that his mental illness justifies a much lower sentence than would otherwise be appropriate.

Circumstances of the Offence

[9] Mr. Campbell and the victim Andrew Maiko were both employed as weight and load agents at Air Canada. On the evening of January 6, 2016, Mr. Campbell decided he was going kill Andrew Maikoo. He got into his car at his home in Milton and drove to the Air Canada building 989 Ironbridge Road in Brampton. Mr. Campbell retrieved a knife from the glove compartment of his car, walked into the building, passed security, entered the washroom to wash his face, and walked straight to Mr. Maikoo, passing several other co-workers along the way. As Mr. Maikoo was seated at his work station, Mr. Campbell repeatedly stabbed Mr. Maikoo in the head and neck. Mr. Campbell then walked out of the room, leaving Mr. Maikoo, slumped in his chair, bloodied and lifeless.

[10] Mr. Campbell walked out of the premises, entered his car and drove directly to 12 Division of Halton Regional Police Service in Milton where he announced to the officers on duty that he had killed his co-worker.

The Victim, Andrew Maikoo

[11] Andrew Maikoo, Mr. Campbell’s 46-year old co-worker, suffered fourteen stab wounds in his neck and head. At trial, Mr. Maikoo’s medical records for the first two weeks of his hospitalization were admitted on consent. As well, and again with the consent of Mr. Campbell’s defence counsel, the Crown provided the Court with additional information concerning Mr. Maikoo’s injuries and current condition.

[12] Immediately following the incident, Mr. Maikoo was transported to Sunnybrook Hospital where he remained for seven weeks. For the first six weeks, Mr. Maikoo was on a ventilator unable to speak or breathe on his own. Mr. Maikoo was then transferred to the Lindhurst Rehabilitation Facility for four months of rehabilitation and then underwent a further five months of rehabilitation at the Bellwood Rehabilitation Centre. Upon his release from Bellwood, Mr. Maikoo moved into supportive housing in downtown Toronto where he has remained.

[13] Today, Mr. Maikoo is transported by Wheeltrans to physiotherapy five times a week, visits doctors and has regular visits by social workers and occupational therapists. Mr. Maikoo requires the assistance of a personal care worker (PSW) 24 hours a day, and a registered nurse attends to him for three hours every morning.

[14] Mr. Maikoo has regained 40% mobility in his left limbs yet he continues to have no feeling on his left side. With the exception of pain, Mr. Maikoo has no mobility or sensation on his right side. When food is placed in his hand, Mr. Maikoo can feed himself, however he cannot use a knife and fork. Mr. Maikoo can use laptop and telephone, but he cannot open up either.

[15] Mr. Maiko has no control over his bowels and is dependent on diapers, laxatives and catheters. Mr. Maikoo’s lung capacity is at 60% and he suffers from periodic spasms which his PSW describes as his whole body going into spasms.

[16] I have heard that with the assistance of his PSW, Mr. Maikoo applied for medically assisted suicide, however, on the basis that his condition was stable, his application was denied. Unless Mr. Maikoo’s condition deteriorates, future applications will be similarly denied.

[17] Mr. Maikoo’s victim impact statement was read into the record by the Crown. The statement disclosed the catastrophic impact the attack had on Mr. Maikoo’s physical health, his independence, and his will to live. Mr. Maikoo summed up this impact in the final sentence of his statement:

I am now physically, mentally, socially and financially handicapped. Not for 15 years, or 20 years, or 25 years, but for the rest of my life. My only chance of an early reprieve is death, which may come as a direct or indirect result of my injury.

[18] Mr. Campbell argued that Mr. Maikoo ought to have testified at his sentencing, and he urged me to reject his victim impact statement, which Mr. Campbell argued is dishonest and unreliable. The Crown advised me that much of the information concerning Mr. Maikoo’s condition, including information about Mr. Maikoo’s application for assisted suicide, was supplied by his caregivers and the hospital.

[19] Section 722(1) of the Criminal Code authorizes the reception of a VIS for the purpose of determining the sentence to be imposed. Section 723(5) authorizes the reception of hearsay evidence at a sentencing hearing. There is no automatic right to cross-examine the victim on the contents of his VIS: R. v. W.V. (2008), 2008 ONCA 55, 229 C.C.C. (3d) 344 (Ont. C.A). Cross-examination will only be permitted where the accused satisfies the sentencing judge that there is an air of reality to the claim of disputed facts, and that the request to cross-examine is not spurious or empty: W. (V.), at paras. 28 and 29. In these circumstances, Mr. Campbell has not met that threshold. I do not consider it to be in the interest of justice to compel Mr. Maikoo to testify and I accept as true the contents of his VIS and the information supplied by the Crown.

Circumstances of the Offender

[20] At the time of the offence, Mr. Campbell was 49 years old with no criminal record. Mr. Campbell was born in Scotland, moved to Canada in 1973, and is a permanent resident. I have been advised that as a result of his conviction, Mr. Campbell is on an immigration hold and he might be deported back to Scotland once his sentence has been served.

[21] Mr. Campbell’s parents are both deceased and he has two adult siblings, a brother and a sister, both of whom are married and live in Oakville. Mr. Campbell finished grade 12 and while he attended George Brown College, he did not graduate. Mr. Campbell began working at Air Canada in 1999 and he met the victim Andrew Maikoo at work the following year. Initially the two men got along, both at work and socially. Over the years however, Mr. Campbell began to complain about Mr. Maikoo’s harassment of him. In short, Mr. Campbell reported to his managers, his doctor, the police and his lawyer that Mr. Maikoo was engaging in a sustained, and progressively menacing campaign of harassment against him. It was agreed by all parties at trial that there was no substantiation for much, if not most, of Mr. Campbell’s claims of harassment.

[22] Mr. Campbell has been in custody since his arrest on January 6, 2016 and by the time of his sentencing, he will have spent 2 years 9 months in pre-sentence custody. With the “usual” enhanced credit, this amounts to the equivalent of 4 years and 3 months. According to Mr. Campbell however, as of May 4, 2018, he had been in segregation four times and had spent a total of 283 days in “lockdown” conditions. During his stay at Maplehurst he has received some psychiatric treatment which his former defence counsel Mr. Browne characterized as “spotty”. He has also participated in cognitive behaviour therapy, which is aimed at helping Mr. Campbell deal with stressors in his life and mood swings.

[23] Mr. Browne who briefly represented Mr. Campbell during the sentencing proceedings, advised the Court that Mr. Campbell is currently taking prescribed medications which include the antipsychotic medication Seroquel, and the antidepressant Wellbutrin.

Sentencing Principles

[24] The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives set out in s. 718 (a - f) of the Criminal Code.

[25] One of the fundamental purposes of any sentence is the protection of society: R. v. Simpson, [1981] O.J. No. 34. Where individuals pose a significant danger, separating them from the community takes on greater significance.

[26] Section 718.1 embodies the principle of proportionality requiring the sentence imposed “be proportionate to the gravity of the offence and the degree of responsibility of the offender." A sentencing court’s adherence to this fundamental principle requires an individualized approach to sentencing, which takes into consideration all relevant mitigating and aggravating circumstances relating to both the offence and the offender: s. 718.2(a). The sentencing court’s discretion is not however, unbridled. The principle of parity embodied in s. 718.2(b), requires the sentence imposed be similar to sentences imposed on similar offenders in similar situations.

[27] While the parity principle provides some limits to the sentencing court’s discretion, within those limits, the process remains inherently individualized, and there is no such thing as a one-size fits all sentence: R. v. C.A.M., [1996] 1 S.C.R. 500, at para. 92; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 58.

A Review of Other Cases

[28] The Crown, defence counsel and Mr. Campbell himself, referred to a number of cases in support of their respective positions. I have reviewed each case, and summarized many of them below. These cases illustrate the application of the above sentencing principles to the unique constellation of facts in each case, and the consequent wide range of sentences that have been imposed on those convicted of attempted murder. Recently, Watt J.A. commented on the range of sentence in R. v. Adamson, 2018 ONCA 678, at para. 19:

Sentences for attempted murder imposed at trial or after a plea of guilty and upheld by this court vary widely: R. v. Tan, 2008 ONCA 574, 268 O.A.C. 385, at para. 35. The variations reflect differing circumstances. Of offence. Of offender. And of the effects of the offence on their victims. The maximum sentence is imprisonment for life. And the offence includes the most morally blameworthy state of mind known to our law -- the intent to kill a fellow human being.

The Crown’s Cases

• R. v. Mann, 2016 ONSC 2675: The defendant was convicted after trial of attempting to murder his domestic partner by repeatedly smashing her head into the floor causing her permanent brain damage. The defendant was 53 years old with no prior criminal record. He had suffered bouts of depression in the past but there was no evidence of mental illness which predated the offence. After reviewing numerous attempt murder sentencing decisions, Healey J. imposed a life sentence and in so doing recognized at para. 79 that “issuing the maximum sentence for attempted murder is rare, particularly for a first time offender, and should be reserved for only those cases which call for the severest sanction…”

• R. v. Anderson, 2011 ONSC 5551: The defendant was found guilty after trial of attempted murder in the course of a stranger sexual assault. The defendant, who would not participate in a psychiatric assessment, was 26 years at the time of the offence and 30 years old at the time of his sentencing. Ducharme J. imposed a life sentence which was upheld on appeal by Anderson, 2012 ONCA 373.

• R. v. Klair (2004), 186 CCC (3d) 285 (Ont. CA): The defendant pled guilty to arson causing bodily harm after setting fire to his son’s house. The defendant’s grandson suffered significant burns and permanent disfigurement and disability. While the defendant admitted guilt he offered no explanation for his actions and he denied any intent to harm his grandson. The defendant was 70 years old, had no prior record and was a landed immigrant. The sentencing judge who assumed that the defendant must have been suffering from some form of undiagnosed mental illness, imposed a life sentence.

The Court of Appeal concluded the sentencing judge had erred by over-emphasizing the consequences of the offence and under-emphasizing the actual circumstances of the offence and the blameworthiness of the offender. On the evidence before it, a majority of the Court of Appeal found that the defendant did not deliberately cause the severe injuries to the young victim and substituted the life sentence for one of 12 years. -

• R. v. Lieug, [1995] O.J. No. 2424 (C.A.): The defendant was convicted after trial of attempted murder after striking the victim several times on the head with a hammer and covering her body with sulphuric acid. During the attack, the victim attempted to retreat to the bathroom but the defendant pursued her. The Court of Appeal upheld a life sentence.

• R. v. Horvath (1982), 2 CCC (3d) 196 (Ont. C.A.): The defendant was convicted after trial of attempted murder after attacking the victim while pretending to inspect a bedroom she had for rent. The defendant had held a knife to the victim’s throat and threatened to kill her and take her jewelry and money. He bound the victim’s wrists with electrical cord, pulled a cord around her neck and stabbed her in the back of her neck. The victim suffered permanent injuries. The defendant was 23 years old at the time of the offence. He had one previous conviction (for extortion) and had previously be acquitted of murdering his mother when he was 17 years old. There was conflicting psychiatric evidence before the court. One doctor opined that the defendant suffered from a personality disorder sociopathic type, while the other two disagreed. The life sentence upheld on appeal.

Defence Cases

• R. v. Charles, 2014 ONSC 211: Two defendants were convicted after trial with the attempted murder of a victim they struck repeatedly on the head with a baseball bat and stabbed 32 times. The victim suffered life threatening injuries. He was in a coma for several weeks and was not expected to live. Both defendants were under 30 years of age and both had criminal records. The trial judge imposed a sentence of 10 years on each defendant finding that they did not pose the unpredictable dangerous risk to the community as the accused in the sentences relied on by crown.

• R. v. Williams, [2012] O.J. No. 4667 (S.C.J.): The defendant was found guilty of attempted murder, utter threats, use of a firearm and unlawful confinement. The defendant had shot one victim in head while in the victim’s home. He also threatened to shoot another person but bound him instead and forced him at gunpoint to enter a bathroom. The victim of the gunshot suffered permanent disability. At the time of the offences, the defendant was 22 years old and had no criminal record. Campbell J. took into consideration the fact that the defendant would certainly be deported upon completion of his sentence and imposed a total sentence of 11 years, 10 years for the attempted murder.

• R. v. Nguyen, [2008] O.J. No. 2559 (S.C.J.): The defendant was found guilty by a jury of attempted murder after shooting the victim in the face, neck and chest with a semi-automatic gun while the victim was in a bar. The victim suffered permanent injuries. The trial judge acceded to the joint submission and imposed an effective sentence of 11 years.

• R. v. Oelkuch, [2006] O.J. No. 3172 (S.C.J.): the defendant pled guilty to attempted murder. On the day of offence, the accused’s head “filled with a bizarre thought” and he attended his employer’s home with the intention of killing him. The defendant lured the victim outside and stabbed him multiple times leaving him cosmetically and emotionally scarred. The defendant surrendered himself to the police later that day. The defendant had a history of depression, aggression and drug use and according to a psychiatrist whose report was before the Court, he suffered from borderline personality disorder, aggression and drug dependence. The Crown sought a sentence of 8 years less pre-trial custody and the defence sought a sentence of 5 years, 4 months. Noting the mitigating factors – namely the fact that when Mr. Oelkuch realized what he was doing he stopped, surrendered himself to police, confessed and pled guilty – Taliano J. imposed an effective sentence of 6 ½ years.

• R. v. D’Souza, [2004] O.J. No. 4277 (S.C.J.): The defendant pled guilty to attempted murder, forcible confinement and two counts of threatening death when he shot the victim at point blank in defence of a marihuana grow operation. With sheer luck the victim survived but incurred permanent injuries. The defendant was 29 years old with a previous drug conviction. The sentencing judge found little by way of mitigating factors and sentenced the defendant to an effective sentence of 10 years.

• R. v. Hagendorf, [2000] O.J. No. 6072 (S.C.J.): The defendant pled guilty to manslaughter and attempted murder after striking her friend in the back of the head at least six times with a small sledge hammer while the friend was in the defendant’s home. The defendant had told her husband it was “a killing day”, that one was dead and that he was next. She subsequently attacked her husband. In the psychiatrist’s opinion, the defendant suffered from a major psychiatric illness at the time of the offence, and also suffered from depression and dissociative amnesia. Her mental disorder did not however render her not criminally responsible. The sentencing judge nevertheless concluded that the offence would not have occurred but for the mental illness and sentenced the defendant to 5 ½ years for manslaughter and 3 years concurrent for the attempt murder.

• R. v. Turosky, 2013 ONSC 583: The defendant pled guilty to manslaughter having killed his common law wife with a baseball bat while she slept. When police arrived two days later, they found the defendant in the fetal position dazed and unresponsive. The defendant was 42 years old, had no prior criminal record, and had for years suffered from mental health problems which resulted in several suicide attempts and hospitalizations. Two psychiatrist expressed opinions that the defendant suffered from a delusional disorder of the persecutory type. The focus of his delusions was his former employer who he believed had wrongfully dismissed him and was in a conspiracy with CSIS. He began to believe everyone around him was involved in the conspiracy and his actions grew increasingly more erratic. The sentencing judge imposed an effective sentence of 8 years.

[29] After discharging his counsel Mr. Browne, Mr. Campbell made submissions on his own behalf and referred to three further cases. Specifically, Mr. Campbell argued that the offenders in the “California Sandwich” case, Adam McCabe and Joshua Burgess, all received lenient sentences relative to the crimes they committed.

• R. v. Scarcella, [2006] O.J. No. 1555 (S.C.J): Known as the “California Sandwich” case, multiple co-accused pled guilty to various charges including attempted murder. Louise Russo was hit by a bullet fragment in the men’s attempt to kill their rival, who happened to be in the same restaurant as Ms. Russo. Ms. Russo was left a paraplegic. The sentences imposed on then men involved in the shooting, which ranged from 11 to 12 years, were the end result of joint submissions which uniquely took into consideration restitution in the amount of $2,000,000 payable to Ms. Russo.

• R. v. Joshua Burgess: I was unable to find a reported decision on this case, but I learned from the CBC website that Joshua Burgess pled guilty in December 2017 to second degree murder four years after strangling his wife to death and burying her in their backyard. Mr. Burgess was sentenced to life in prison with parole eligibility set at 10 years.

• R. v. Adam McCabe, an unreported decision of Borghesan J. dated May 2, 2018: Adam McCabe pled guilty to manslaughter after having suffocated his father Morgan to death by stuffing a towel into his mouth. At the time of his death and as a result of an earlier fall, 56-year old Morgan McCabe was brain damaged, bedridden and partially paralyzed. He required round-the-clock medical care, could not verbally communicate and could not consume food orally. Morgan’s estranged wife, who still maintained regular contact with him, testified that he would not have wanted to live in that state, and in fact a “do not resuscitate” order was in effect. Morgan’s condition was not about to improve, but was expected to worsen over time.

Adam McCabe was 34 years old at the time of the offence. He had a previous record consistent with his long-standing addiction to alcohol. In imposing a sentence of 2 years less a day (for an effective sentence of 5 years 3 months) and 3 years’ probation, Borghesan J. made is clear that in her view, the mentally ill offender had acted out of a sense of compassion, believing that he was putting an end to his father’ suffering.

[30] One further and relatively recent case worth examining is R. v. Greg Simard, 2017 ONCA 690. Mr. Simard, a caregiver at a residential facility for developmentally challenged individuals, pled guilty to multiple offences including attempted murder. Mr. Simard had taken a non-verbal autistic resident into a nearby wooded area, beat him severely and left him naked from the waist down. The victim incurred serious and permanent injuries as a result of the attack. Following his plea of guilt, Mr. Simard advanced a NCR defence which the sentencing judge ultimately rejected.

[31] The two psychiatrists who testified at the NCR hearing differed in their diagnoses. One opined that Mr. Simard was “likely” a schizophrenic whereas the other doctor believed that an adjustment disorder or drug-induced psychosis was a more accurate diagnosis.

[32] Mr. Simard was 25 years old at the time of sentencing with no prior criminal record. He had completed college, was working towards his pilot’s license and had the strong support of his family. The Crown sought a life sentence and the defence sought a sentence in the range of 6-10 years in light of the defendant’s mental disorder.

[33] The sentencing judge sentenced Mr. Simard to 20 years less pre-trial custody. The Court of Appeal upheld the 20-year sentence and found the trial judge appropriately considered the defendant’s mental illness and its impact on his moral blameworthiness. The offence involved an egregious breach of trust, and a brutal attack on a defenseless victim: Simard, at para. 15. It is clear from the sentencing judge’s unreported reasons and the Court of Appeal’s decision, that but for Mr. Simard’s mental illness, a life sentence would have been appropriate.

The Imposition of Maximum Sentences

[34] In this case the Crown is seeking a life sentence which is, pursuant to s. 239(1)(b) the maximum penalty for attempted murder. A maximum sentence is to be imposed rarely, and only when the gravity of the offence and blameworthiness of the offender clearly call for it: R. v. Cheddesingh, 2004 SCC 16, [2004] 1 S.C.R. 433, at para. 1. Descriptors such as “stark horror” “worst offence” and “worst offender” have been retired in favour of an approach that simply considers all relevant factors and principles of sentencing: Cheddesingh, at para. 1.

[35] What degree of gravity is required in an offence to justify a life sentence? In R. v. Klair (2004), 186 C.C.C. (3d) 285 (Ont. C.A.), at para. 15, Sharpe J.A. noted that one or more the following factors are often present in cases where life sentences have been imposed:

• cruelty, brutality, unusual violence
• terrorizing and torturing victim over a period of time
• intentional, prolonged, repeated violence against victim
• acts needlessly repeated or lack of feeling suggesting sadistic intent to cause terror or even torture
• intentional infliction of pain, fright, panic that is tantamount to torture solely for gratification or other perverse reason
• cruelty and callousness not frequently encountered
• deliberate infliction of brutal, disfiguring, life threatening injuries

[36] The severity of the offence is only part of the equation in sentencing an offender. The ultimate sentence must also be tailored to the moral blameworthiness of the offender which can be reduced by such factors such as youth, cognitive impairment and mental illness. In other words, the brutal nature of an offence can not overwhelm the sentencing process to the point where individual culpability is obscured. Sentencing must always remain an individualized process regardless of the nature of the crime.

Mr. Campbell’s Mental Illness

[37] In this case, we are dealing with how, if at all, mental illness contributed to the attempted murder of Mr. Maikoo. Where the commission of the offence is driven, in part, part by mental illness, reduced moral blameworthiness and a diminished need to address deterrence will often result in a lower sentence than would ordinarily be imposed. In R. v. Hagendorf, [2000] O.J. No. 6072 (S.C.J.), at para. 54, Durno J. reviewed numerous cases and summarized the bottom-line message as follows:

“…a person who commits an offence while suffering from a major mental illness which is at least a contributing factor in the commission of the offence, receives a shorter term than those who commit the same offence unaffected by mental illness”

[38] As the above passage suggests, a sentence will not be reduced simply because an offender suffered from a mental illness at the time of the offence. The trial judge must determine whether there was a causal connection between the illness and the commission of the offence which reduced the offender’s culpability and which warrants a reduced punishment: R. v. Ellis , 2013 ONCA 739, 303 C.C.C. (3d) 228, at paras. 116 and 117; R. v. Batisse, 2009 ONCA 114, 241 C.C.C. (3d) 491, at para. 38.

[39] While I believe Mr. Campbell suffered (and suffers) from some form of mental illness, the nature and extent of that illness, and the role it played in the commission of the offence, is far from clear. The two psychiatrists who testified at Mr. Campbell’s trial disagreed on both the nature of Mr. Campbell’s illness and on how, if at all, it contributed to his attempted murder of Mr. Maikoo.

[40] Dr. Gojer, who conducted an extensive psychiatric assessment on Mr. Campbell at his request, was of the opinion at that at the time of the attempted murder, Mr. Campbell suffered from a delusional disorder, persecutory subtype and a major depressive disorder. Dr. Gojer opined that both conditions were “intimately involved” in the commission of the offence and rendered Mr. Campbell not criminally responsible for his actions.

[41] Dr. Gojer also noted that Mr. Campbell had “no insight into the delusional nature” of his condition or how it impacted on the commission of the offence. However, Dr. Gojer also noted that Mr. Campbell did not believe he was criminally responsible for the offence.

[42] Dr. Komer, who performed the court-ordered psychiatric assessment on Mr. Campbell, came to a different conclusion based, in part, on what he believed were inconsistencies in Mr. Campbell’s accounts. Dr. Komer believed some of the information supplied to him by Mr. Campbell was “self-serving”, minimized his liability and was designed for “impression management”, all in furtherance of what Mr. Campbell hoped would be a finding of not criminally responsible.

[43] Dr. Komer found that Mr. Campbell had experienced “depressive symptoms which appear to have been in response to perceived and/or actual harassment” by Mr. Maikoo. Dr. Komer also found that Mr. Campbell possessed “obsessive and narcissistic personality traits.” Though Dr. Komer allowed for the possibility that Mr. Campbell also had a delusional disorder, persecutory type, he rejected the idea that the disorder (if it existed) deprived Mr. Campbell of criminal responsibility.

[44] I reviewed the opinions of both psychiatrists in my trial ruling and ultimately, based on my own concerns about the reliability of Mr. Campbell’s self-reported, and at times inconsistent accounts, I was not persuaded that Mr. Campbell lacked criminal responsibility in his attempt to murder Mr. Maikoo.

[45] I was concerned, as I am now, by the fact that Dr. Gojer’s opinion was based almost entirely on self-reporting by Mr. Campbell, who seemingly from the start, was interested in a NCR finding. Absent from Dr. Gojer’s diagnostic foundation, is any historical diagnosis of significant mental disorder, previous hospitalization, or accounts from Mr. Campbell’s friends and/or family concerning any unusual thoughts or behaviour. This distinguishes Mr. Campbell’s situation from many other cases in which a finding of NCR was made, or in which a sentence was reduced on the basis of mental disorder, such as in Turosky, and Oelkuch.

[46] Until shortly before the attempted murder, Mr. Campbell was able to deal with his harassment complaints through proper channels, though it was clear he was becoming increasingly frustrated by what he felt was the inadequate response from his employer. Mr. Campbell reported to the psychiatrists and testified at trial, that auditory and visual hallucinations in the days leading up to January 6th encouraged him to take matters into his own hands and to kill Mr. Maikoo. However, for reasons explained in the trial ruling, I share Dr. Komer’s concerns about the legitimacy of those hallucinations.

[47] There was however, some indication from Air Canada that Mr. Campbell had for years been complaining of Mr. Maikoo’s harassment and that Mr. Campbell’s complaints far exceeded any actual harassment Mr. Maikoo may have perpetrated. In this way, there is some corroboration of a mental disorder.

[48] Dr. Rummy Gill, a clinical, forensic and school psychologist, conducted a further assessment on Mr. Campbell at Maplehurst Detention Centre in 2018 with the assistance of a doctoral level student, Natalie Kalb. The purpose of Dr. Gill’s assessment was not to determine Mr. Campbell’s criminal responsibility, but rather to facilitate optimum psychological treatment for Mr. Campbell upon his possible transfer to a federal prison.

[49] Dr. Gill and Ms. Kalb conducted psychometric testing on Mr. Campbell in February 2018 by administering the Personality Assessment Inventory (PAI). As explained in Dr. Gill’s report, the PAI is a test designed to “provide information on personality traits related to underlying clinical disorders.” The results of Mr. Campbell’s PAI “flagged the potential” for impression management, and raised a concern that he was exaggerating his symptoms for “secondary gain.” As a result of this concern, Dr. Gill administered a further series of tests designed determine whether Mr. Campbell was malingering.

[50] Though the results of PAI and one of the screening tools (the Miller Forensic Assessment of Symptoms Test) suggested malingering, based on the results of the other tests, Dr. Gill concluded that Mr. Campbell’s exaggeration of his symptoms was directly related to his mental disorders, and was not the result of malingering.

[51] Based on her assessment of Mr. Campbell, together with his “self-reported measures” and “previous psychiatric reports”, Dr. Gill noted a “clinical pattern that is consistent with a diagnosis of schizotypal personality disorder”. A Mayo Clinic information sheet provided to Mr. Campbell by Dr. Gill offers the following description of this disorder:

People with schizotypal personality disorder are often described as odd or eccentric and usually have few, if any, close relationships. They generally don’t understand how relationships form or the impact of their behavior on others. They may also misinterpret other’s motivations and behaviors and develop significant distrust of others.

These problems may lead to severe anxiety and a tendency to turn inward in social situations, as the person with schizotypal personality disorder responds inappropriately to social cues and holds peculiar beliefs.

Schizotypal personality disorder typically is diagnosed in early adulthood and is likely to endure, though treatment, such as medications and therapy, can improve symptoms.

[52] Mr. Campbell told the Court that he identified with the traits associated with schizotypal personality disorder and, based on the evidence I have heard, I find Mr. Campbell displayed many of those traits. Dr. Gill was also of the view that Dr. Gojer’s findings of a delusional disorder-persecutory subtype, and narcissistic personality disorder were supported by her own assessment. Though Dr. Gill drew support from “previous psychiatric reports” in her assessment of Mr. Campbell, she did not review Dr. Komer’s report.

[53] Based on my consideration of all medical opinions proffered during these proceedings, I believe Mr. Campbell suffered from a combination disorders, possibly schizotypal personality disorder and likely depression. While neither of these conditions, alone or in combination, stripped Mr. Campbell of his ability to discern right from wrong during the commission of the offence, they probably led to his strongly held belief that Mr. Maikoo was harassing him, and are connected to his inappropriate and violent response to this perceived harassment.

[54] In terms of future risk, Dr. Gojer testified that having no insight into his disorder, Mr. Campbell would be difficult to treat and explained that Mr. Campbell could “latch on to someone else”, have similar delusions and pose a significant risk to the public. According to Dr. Gojer, persecutory type delusional disorders are hard to treat and do not respond well to counselling or medication. Of course, Dr. Gojer’s opinion regarding risk is tied to his diagnosis, which as I have mentioned, was not shared by Dr. Komer.

[55] According to the Mayo Clinic information filed at the sentencing, schizotypal personality disorder is typically treated through a combination of medication and psychotherapy and Dr. Gill reported that according to Mr. Campbell, he has benefited from psychiatric medication especially the anti-psychotic medication, Seroquel. However, in her report, Dr. Gill addressed the possibility of relapse:

Overall, the symptoms of the personality disorder have resulted in Mr. Campbell lacking insight into unusual beliefs, perceptions, and interpretations that are not based in reality. At times he would indicate that he has delusions, but would quickly revert back to defending his behaviour. It is this lack of insight, bizarre behaviour and view of the world that likely appears to others as dramatic or feigning pathology. The culminations of these symptoms have impaired Mr. Campbell’s functions and make him vulnerable to experiencing future episodes of elevated psychological distress. [Emphasis Added]

[56] Prior to the attempted murder on January 6th, 2016, Mr. Campbell had been undiagnosed and untreated. Since then he has been taking prescribed medications and there is reason to believe that with behavioural therapy and medication, Mr. Campbell’s symptoms could improve and the risk of re-offending reduced. On the other hand, Mr. Campbell’s continued distrust and animus towards Mr. Maikoo, expressed during his sentencing submissions, reveal a disconcerting lack of remorse.

Aggravating, Mitigating and Other Factors

[57] In terms of mitigation, while this was not a guilty plea, the trial was focused on the single issue of criminal responsibility. Mr. Campbell admitted all other evidence that the Crown would have otherwise been required to call in proof of the charge. The result was a streamlined and focused trial. As well I take into consideration the fact that Mr. Campbell has resided in Canada since he was a child and has no previous criminal record, and immediately following the stabbing, he turned himself into the police and confessed.

[58] In terms of aggravating factors, I have already emphasized the brutality of the attack on Mr. Maikoo, and the devastating, life altering injuries he sustained as a result of Mr. Campbell’s actions. This was not a spur of the moment and impulsive attack. Mr. Campbell set out from his home and drove quite some distance with the intention of killing Mr. Maikoo. The nature of the attack and the injuries sustained by Mr. Maikoo are the most aggravating features of this offence.

[59] In determining the appropriate sentence, I have kept in mind two further factors, including collateral immigration consequences. As previously mentioned, I have been advised that as a result of his conviction, Mr. Campbell is now on an immigration hold. Pursuant to s. 36 (1)(a) of the Immigration and Refugee Protection Act, a permanent resident is deemed inadmissible on the grounds of serious criminality upon conviction in Canada of an offence punishable by a maximum term of imprisonment of at least 10 years or after having received a sentence of imprisonment of more than six months. It seems likely therefore, that Mr. Campbell will be faced with a removal order upon the completion of his sentence. Moreover, there exists no right of appeal against such an order for someone deemed inadmissible on the basis of serious criminality who received a sentence of more than six months.

[60] The other factor I have considered is Mr. Campbell’s pre-trial and pre-sentence custody, Mr. Campbell will be given credit of 1.5 days for each day he has spent in custody since his arrest on January 6, 2016. This amounts to the equivalent of approximately 4 years and 3 months.

[61] Quite apart from the enhanced credit, I have also considered the numerous lockdown days in the course of Mr. Campbell’s detention. While I have no evidence concerning the nature of the lockdowns in this case, enough has been written about lockdown conditions in recent jurisprudence that I can assume lockdowns contributed to the discomfort and stress of Mr. Campbell’s pre-trial detention. Beyond that which I can assume however, I have no evidence about any specific adverse effect on Mr. Campbell: R. v. Duncan, 2016 ONCA 754, at para. 7.

Sentencing Mr. Campbell

[62] In the ordinary course, I would find that a life sentence is appropriate for someone who, with forethought and an intention to kill, repeatedly stabbed their co-worker in the head and neck and left them for dead. So brutal was the attack on Mr. Maikoo and so devastating were his injuries that when Mr. Campbell turned himself in to the police he reasonably assumed that he had killed Mr. Maikoo. It was only through prompt and sustained medical intervention, and sadly against Mr. Maikoo’s desires, that Mr. Maikoo survived. But for this medical intervention, Mr. Campbell could have been found guilty of murder with no option but to serve a life sentence.

[63] There is no difference in the moral blameworthiness of someone who attempts to murder another, and someone who succeeds. The sole difference between the two is the intervention of fate: R. v. Logan, [1990] 2 SCR 731, at pp. 742-743; R. v. McArthur (2004), 182 C.C.C. (3d) 230 (Ont. C.A.), at p. 241. In short, this offence is sufficiently brutal and the deliberately caused injuries to the victim are sufficiently shocking, as to warrant a life sentence: Klair, at para. 26.

[64] Regardless of Mr. Campbell’s mental disorders his actions cannot be justified, and no quantum of sentence could compensate for the toll they took on a human life. However, I believe Mr. Campbell’s perceptions and reactions on January 6, 2016 were influenced by mental illness and this in turn reduced his moral culpability.

[65] The determination of moral blameworthiness in the case of a mentally ill offender does not lend itself to precise measurement, especially when there is no certainty about the precise diagnosis. It follows that the determining the corresponding reduction in sentence is equally challenging.

[66] Having regard to all the circumstances in this case, I find that the appropriate sentence is one of 17 years. With enhanced credit given to Mr. Campbell’s pre-trial custody, which amounts to 4 years and 3 months, he has 12 years, 9 months left to serve.

[67] Attempted murder is a primary designated offence and accordingly Mr. Campbell shall provide a sample of his DNA for the National DNA Databank. Pursuant to s. 109 of the Criminal Code, Mr. Campbell will be prohibited from possession of weapons and ammunition and all of the other items set out in s. 109, for life. Pursuant to s. 743.21 of the Criminal Code, during his sentence of imprisonment Mr. Campbell shall not communicate directly or indirectly in any way with Andrew Maikoo.

Released: October 23, 2018

Signed: Justice I. Jaffe