Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2021·05·04 COURT FILE No.: Toronto 4817 998 20-75000879

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MICHAEL MATTHEW HENNESY

Before: Justice H. Borenstein

Plea of guilty taken on: April 7, 2021 Reasons for Sentence delivered orally on: April 30, 2021

Counsel: Mr. Jay Spare, counsel for the Crown Mr. Richard Stern, counsel for the defendant Michael Matthew Hennesy

Reasons for Sentence

BORENSTEIN J.:

[1] Michael Hennesy pled guilty to one count of assault.

[2] This is his sentencing.

[3] I am grateful to Mr. Stern and Mr. Spare for their sentencing submissions in this case. They were thoughtful and fair and recognized the seriousness of the offence, the particular times we seem to be in with a disturbing increase in anti-Asian sentiment. They also recognized Mr. Hennesy’s rather unbelievable personal circumstances and they attempted to put forward submissions that balance all of those factors. Their approach demonstrates the best traditions of law and the bar to deal with offences and offenders as a whole.

Facts

[4] At about 2:30 p.m. on February 7, 2020, the victim, Ms. Yanjun Liu, a student here from China, was on the southbound bus on Sherbourne near Bloor. She was wearing a medical mask and was seated on the bus, minding her own business. It was the beginning of the pandemic.

[5] Forty-seven-year-old Mr. Hennesy boarded the bus. He had been drinking. He exited the bus four minutes later. The events at issue occurred during those four minutes. He has no criminal record.

[6] Mr. Hennesy turned to Ms. Liu and said:

Fucking mom Fucking your mom Fucking Chinese Get out.

[7] He then went to rear of the bus and continued his racist rants.

[8] Ms. Liu was understandably frightened. She took out her phone and began recording the events. He then said:

If you think that mask will save you, it’s too bad for you Oh boo boo I’m recording You gonna threaten me in my country Go the fuck back where else where you came from I am Canadian You are fucked hope where you are Bye bye Going to go home to mummy Don’t think mommy can help you with that.

[9] He went up to her and tried to grab her arm to get the phone.

[10] She struck him in face, while screaming at him not to touch her and kept her phone.

[11] Then, four minutes after boarding the bus, he got off. The bus remained and the police attended.

[12] Ms. Liu had a small mark on her arm. EMS attended. She then gave a statement to the police.

[13] The accused turned himself in to the police when his image was broadcast on television.

[14] He has always indicated his desire to plead guilty. He has written a letter of apology to Ms. Yanjun Liu for his behaviour. It was read out in court.

[15] He had been drinking and, as I will discuss soon, he has battled addiction his whole life, yet somehow managed to stay out of the criminal justice system until that day. He has begun counselling, which is long overdue.

[16] As the Crown submits, the physical aspect of the assault itself was not the worst by any means. But the racist comments changes this completely. This offence shows how vulnerable society is to the ugly reality of racism and how quickly it can spread, and how scared and vulnerable its targets are. Racism is awful on its own given the dehumanizing effects it can have. And it often can lead to physical violence, which is what occurred here. I do not lay all this at the feet of Mr. Hennessy by any means. I am well aware of his background, which I will turn to shortly. However, the offence must be denounced in this sentencing for those reasons.

[17] The impact on Ms. Liu was extreme. In her Victim Impact Statement, she wrote about the effect this has had on her: she did not finish her semester; she gained weight; she moved and seeks compensation for all of that. Specifically, she seeks the following compensation:

• $ 40,000 for 2 years of psychological treatment,
• $ 13,600 for an 8-month delay in her career and life savings,
• $ 3,900 for retaking 3 courses,
• $ 18,010 for the necessary rent increases,
• $ 20,000 for laser surgery to heal the wounds she says he made her inflict on herself,
• $ 10,000 for faster victims’ compensation in other attacks he has helped to normalize.

Total $105,510

[18] Ms. Liu can seek redress for that at the Criminal Injuries Compensation Board or through the civil courts if she so chooses. Mr. Hennesy is on ODSP.

[19] Mr. Hennesy’s life experience is exceptionally tragic and no doubt that background led him to where he is today. A report by Ms. Hatty Wong, a psychotherapist, was prepared for the Court. I also received a letter from his doctor, who has been treating him for his addiction, and a letter from his sister.

[20] He is 47 years old. He is the youngest of eight children; born in Newfoundland. His family was upper middle class. He remembers his parents being kind unless his father was drunk.

[21] He remembers hiding under the bed when his father would become violent, including one time when he pointed a shotgun at his brother for damaging the car.

[22] He remembers his mother as kind and loving but also an alcoholic. He remembers his father as being kind until he was drunk. His father was violent and an alcoholic. When he was five, he saw his father point a shotgun at his older brother because his brother had damaged the family car. Doctors have reported that Michael exhibits some features of fetal alcohol syndrome.

[23] When he was only five, his father killed his mother and then killed himself. The eldest sister, who was 21, parented her seven siblings. Mr. Hennesy was smoking by age seven and drinking by age 11. Addiction to alcohol and later to drugs, including cocaine, has plagued him his whole life. He also spent a week as an in-patient in a psychiatric ward when he was 17. He did finish high school and was accepted into university but did not attend.

[24] At 24, he spent four weeks in a residential treatment program. Another four weeks at 25, followed by a three-month treatment program.

[25] In 1998, at the age of 25, he got married and had two daughters. The daughters are now 15 and 19. He worked in fish and then auto plants until 2008 when his alcohol addiction cost him his job. His marriage lasted 10 years, derailed by his addiction. His relationship with his daughters is “strained” to non-existent.

[26] For the last eight years, he has lived alone in shelters or community type of housing. His sister, in Newfoundland, visited him before these offences and found him to be lonely and his residence she found substandard and a little scary. She says she has never heard him express any racists views. The two of them volunteered at a soup kitchen, for years, in Newfoundland. Since these offences, he has moved back to Newfoundland and lives with his sister. She is reconnecting him to volunteer work.

[27] He finally was diagnosed with PTSD and received some counselling but was not receiving any counselling or other support at the time he committed this offence. He receives government assistance as a result of his disability.

[28] His doctor has been treating him for alcohol addiction since 2016. His doctor, like his sister, believes this offence is completely out of character for Mr. Hennesy.

[29] Ms. Wong believes that Mr. Hennesy is strongly motivated to work on his addiction and PTSD and is profoundly ashamed of his behaviour that day. He tells her he has never affiliated with any racist ideology.

[30] As Mr. Stern said in submissions, and this may be cold comfort to Ms. Liu or perhaps not, but she would not have known his personal circumstances at the time.

[31] But that is the person who is before me for sentencing.

[32] He is 47 years old and despite what he has gone through, a life impacted by substance abuse caused by trauma, he managed to get married, have two children and avoid having any criminal record. But his substance abuse cost him his job, his marriage, his relationship with his children and has played a large part in landing him before the Court. He needs help, including counselling.

[33] His doctor, therapist and sister all say he has not exhibited signs of racism before and this offence is out of character. I appreciate they have not seen those comments before, but those comments do not spring from nowhere. He should not leave this court thinking he is free of prejudice or that the Court thinks so. He needs to examine those issues in a real way.

[34] The aggravating features of this case is the racist nature of this attack and its impact on Ms. Liu and beyond her, to others especially in the Asian community who feel more insecure and unsafe when this happens.

[35] By way of mitigation, Mr. Hennesy has no criminal record. He has had an especially hard life but has managed to avoid conflict with the law. After this offence, he turned himself in, pled guilty, apologized, and has begun counselling. He is doing whatever he can to make amends.

[36] Despite that, and despite the absence of any prior record, and his personal circumstances, this offence still requires a sentence that denounces this conduct The defence seeks probation rather than a discharge for this first offender because of the aggravating factors. The Crown seeks a short period of jail or, at a minimum, a conditional sentence of imprisonment, house arrest, which can always be converted to actual jail if he breaches the terms of the Order.

[37] In my view, despite his plea of guilty and despite the fact that he is a first offender, and all the other mitigating factors, some sort of sentence of imprisonment is required to denounce this conduct and, in my view, a four-month conditional sentence of imprisonment followed by one year probation with conditions would strike the appropriate balance.

[38] Accordingly, Mr. Hennesy will be sentenced to a four-month conditional sentence of imprisonment. He will be subject to the mandatory terms of the Order except that the Order can be transferred to Newfoundland. He will report within 48 hours by phone to his conditional sentence supervisors and thereafter as required. For the first half, he will be subject to house arrest except while going directly to and from or while at work, volunteer work, counselling, or for any other reason that is necessary for the carrying out of this sentence or with the prior permission of his conditional sentence supervisor. He will be allowed out for personal errands from noon to 5 p.m. every Saturday. For the next two months, he will be bound by a curfew of 9 p.m. to 6 a.m. with the same exceptions. He will carry no weapons as deveined by the Criminal Code and have no contact or communication at all with Ms. Yanjun Liu.

[39] Following his conditional sentence, he will be placed on probation for one year. The terms of probation will be the mandatory ones. In addition, he will report as required, have no contact with Ms. Liu, possess no weapons, take counselling as directed and sign all necessary releases. In addition he will perform 30 hours of community service to the satisfaction of his probation officer.

Released: May 4, 2021 Signed: “Justice H. Borenstein”